Dr. (Mrs) Gloria Abiola V. Mrs. Grace Aramide Olawoye (2006)
LawGlobal-Hub Lead Judgment Report
GALINJE, J.C.A.
Prof. Clifford Odunayo Olawoye, the 1st defendant at the Court below is the registered owner of the property in dispute which is situate and known as 56 Ogundana Street, Ikeja, Lagos. The respondent herein, who is the wife of Professor Clifford Odunuyo Olawoye, made enormous contribution towards the acquisition of the land and construction of the property aforesaid. This contribution which the respondent herein made was aptly acknowledged by Professor Olawoye in a handwritten note dated 2nd July 1984, in which he created trust in favour of the wife in the following words:-
“Darling,
I hereby write to acknowledge expressly that the purchase price of the land on which we are building at Ogundana Street, Ikeja was jointly contributed by both of us. I also wish to acknowledge your enormous contribution to the cost of construction of the property. The fact that the deed of assignment was made in my name cannot obliterate these facts. The legal position is that the property is held by me in trust for both of us equally.
I hope that this clarification will take care of any misgiving you may have and that you will continue to make the financial sacrifices necessary so that we can complete the works in time.
Your husband,
Odunayo.”
The wife is now the respondent in this appeal.
The property was later mortgaged in order to secure money for its completion. After the completion of the property, the couple resolved to let out the property in order to generate money to pay off the outstanding loan. In order to facilitate this, the family moved to the official quarters which was allocated to the respondent. Without the knowledge and consent of the respondent, Professor Olawoye later executed a Deed of Assignment in favour of late Chief M. K. O. Abiola in respect of the property on the 14th February, 1989. When information of the sale got to the knowledge of the wife, who is the respondent herein she protested in writing and returned the cheques which were rejected by the Estates Agent who facilitated the sale and the purchaser’s solicitors. In the process, the purchaser after having assured the respondent of amicable settlement, reneged, and later entered into the property and started making alteration.
The respondent went to court and sought for a declaration to set aside the Deed of Assignment of 24th February 1989. In that suit, Professor Clifford Odunayo Olawoye was the 1st defendant, the appellant who was sued as a representative of the Estate of Chief M. K. O. Abiola (deceased) the 2nd Defendant, the Governor of Lagos State and Lagos State Attorney General were joined as 3rd and 4th Defendants.
The appellant neither put up appearance nor filed any process throughout the proceedings at the lower court.
At the conclusion of hearing, judgment as reserved for 15th July, 2003. However on the 14th July 2003, the appellant filed an application in which she prayed for the following orders:-
- Arrest/stay of the judgment of the court.
- Extension of time to file a statement of defence.
The judge heard and refused the 1st prayer and said nothing about the second prayer. Thereafter the judge went ahead and delivered his Judgment. It is against this judgment that the appellant has appealed to this court on four grounds of appeal. I hereby reproduce the grounds of appeal hereunder without their particulars:-
“1. The learned trial Judge erred in law when she assumed jurisdiction to hear the suit thus contravening section 8 (1)(a) of the Limitation Law Cap 118, Laws of the Lagos State 1994.
- The learned trial Judge erred in law when she refused the application of the Appellant herein dated 14th July 2003 to stay the delivery of the judgment and to be allowed to move an application for extension of time to file the statement of defence, the application being premised on the ground that court processes had not been served on her by the aforesaid refusal the appellant herein was denied a fair trial as guaranteed by section 36 of the Constitution of the Federal Republic of Nigeria 1990.
- The learned trial Judge erred in law when she failed to take into account the averment in paragraph 9 of the affidavit in support of summons for further directions that 2nd defendant now appellant is not an executor of the will of Late Chief M.K.O. Abiola and was therefore improperly joined thus rendering any judgment delivered calculated to bind the estate of late Chief M. O. K. Abiola ineffective and making wrong in law the consequential orders against appellant since consequential reliefs cannot be granted in isolation as same must flow from reliefs proved.
- The learned trial Judge erred in law when she did not apply the principle of law that before consequential reliefs can be granted, the parties must be heard on the question of the reliefs sought and thereby denied Appellant of fair hearing.”
In compliance with Order 6 rule 2 of the rules of this Court, M. A. Aghamuche Esq. of counsel for the appellant filed the appellant’s brief of argument. In that brief he identified two issues for determination of this appeal and these are:-
“1. Whether the learned trial Judge erred in law when she assumed jurisdiction to hear the suit contrary to the provisions of section 8 (1)(a) of the Limitation Law Cap 118, Laws of Lagos State 1994.
- Whether the 2nd defendant was denied her constitutionally guarantied right to a fair hearing.”
Titilola Akinlawon, learned counsel for the respondent on the 25th of April 2005 filed the respondent’s brief of argument. In the brief she incorporated a preliminary objection to the competence of grounds 2, 3 and 4 of the grounds of appeal. After setting out her argument on the preliminary objection, she concluded that the only ground to be spared is ground 1 from which she formulated the only issue to wit; “whether the suit was statute barred.” A reply brief was also filed and served on the respondent.
While being heard viva voce, Agbamuche Esq. of counsel in a submission withdrew ground 3 of the grounds of appeal and same was accordingly struck out. Although learned counsel proceeded to argue the appeal, I will like to first or all treat the preliminary issues raised in the preliminary objection by the respondent before the main appeal is determined. In her submission on this score, Titilola Akinlawon, points out that the appellant has not filed any appeal against the substantive orders of the court below. She quotes these orders as:-
“1. … declaration that the purported assignment of …No 56 Ogundana Street, Ikeja, and Lagos by the 1st defendant to the 2nd defendant under the terms of a Deed of Assignment dated 24th February 1989 is in breach of trust.
- … declaration that the consent of the Governor of Lagos State not having been obtained to the assignment, the title to the said parcel of land and building has not rested in the appellant.
- … an order of rescission of the agreement to sell … No. 56 Ogundana Street, Ikeja, Lagos …”
Finally on this issue, Akinlawon submits that grounds 2 and 4 of the grounds of appeal did not arise from the judgment appealed against, and that they at best disclose grievances against the ruling of the court below in which application to arrest/or stay the judgment of that court was refused. She urged this court to strike out the remaining grounds 2 and 4. In support of her argument, learned counsel cites the authority in Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt.450) 531 at 549 F; Alubankudi v. A.-G., Federation (2002) 17 NWLR (Pt 796) 338.
In a reply brief Agbamuche Esq. of counsel for the appellant submits that the proper procedure for bringing a preliminary objection before this court is as set out in Order 3 rule 15 of the Court of Appeal Rules 2004. In a further submission, learned counsel says that such an objection should have come by motion on notice and that since the objection was not initiated through motion, the preliminary objection must be ignored. In support of his argument he cites Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; Salako v. Williams (1998) 11 NWLR (Pt. 574) 505 at 514. Seikegba v. Penawou & Ors (1999) 9 NWLR (Pt. 618) 354 at 363; Savanah Bank of Nig. Plc. V. Prime Management System Ltd (1999) 10 NWLR (Pt. 621) 160 at 164.
In a further submission in reply, Agbamuche contends that the appellant has complied with the provisions of Order 3 rule 2 and so the objection was misconceived.
On the issue of consequential orders, Agbamuche Esq. of counsel submits that consequential orders must flow from and give effect to a substantive reliefs ought. It must flow directly and naturally from the substantive decision. In support of this argument learned counsel sought reliance on the following decisions:-
Akeem v. University of Ibadan (2003) 10 NWLR (Pt. 829) 584 at 596 and U.B.N. Plc v. Adom (2003) 9 NWLR (Pt. 825) 317 at 333
On competence of issue, Agbamuche Esq. of counsel submits that the appeal court can hear and decide any issues which is raised before it provided such issue is covered by a ground of appeal. According to him, it is only where an issue is not covered by any of the grounds of appeal filed by the appellant or the respondent in a cross appeal that it can be said to be incompetent and ought to be struck out by the appeal court. On this he cites Ikeme v. Anakwe (2003) 10 NWLR (Pt. 829) 548 at 564-565.
Finally on this limb of the argument, learned counsel drew the court’s attention to the authority in Ibrahim v. Osunde (2003) 3 NWLR (Pt. 804) 241 at 260 and Owoniboys Technical Services Ltd v. U.B.N. Ltd (2003) 15 NWLR (Pt.844) 545 at 592 and contends that the grounds of appeal which the respondent is seeking to impugn shows clearly what the complainant is complaining about.
Order 3 rule 15 (1) makes the following provisions:-
“A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing selling out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time”
The requirements for reliance on preliminary objection to the hearing of an appeal as provided for by order 3 rule 15 (1) are three fold. These are-
- Three clear days notice before the hearing of the appeal shall be given to the appellant.
- That grounds of objection must be clearly set out in the preliminary objection.
- That twenty copies of the preliminary objection shall be filed with the Registrar within the same time.
In the instant situation, the preliminary objection which is incorporated in the respondent’s brief of argument was filed on the 25th of April 2005. The appellant’s reply brief was filed on the 12th of May 2005 and hearing of the preliminary objection took place on the 5th day of December 2005. From the history of the preliminary objection, the appellant was given more than three days notice. Agbamuche’s quarrel is that the preliminary objection would have been initiated by motion on notice. Although it is preferable to commence such preliminary issues by motion on notice, a preliminary objection properly raised can be heard, even though such preliminary objection is not commenced by a motion on notice.
In Nsirim v. Nsirim (supra) at 297 Obaseki JSC said:-
“…Being a preliminary objection, the objection should haven been by motion on notice before the hearing of the appeal so that arguments on it can be heard by the Court. While notice of objection may be given in the brief, it does not dispense with the need for the respondent to move the court at the oral hearing for the relief prayed for.”
So when a preliminary objection to grounds of appeal is set out in the briefs of argument, the respondent cannot just adopt his brief with respect to the preliminary objection. He must profer oral argument in support of the grounds which are incorporated in the preliminary objection.
In the case of Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166 at 178 paragraph D-F, the Supreme Court in a lead judgment by Othman Mohammed JSC said:-
“I agree with the learned counsel that a party in the Court of Appeal having a preliminary objection against any of the grounds of appeal must give the appellant three days notice before the objection is heard. The notice of preliminary objection can be given in the respondent’s brief, but a party filing it, in the brief, must ask the court for leave to move the notice of objection before the oral hearing of the appeal commences, otherwise it will be deemed to have been waived and therefore abandoned.”
There is therefore no doubt in my mind that the respondent has complied with the provision of Order 3 rule 15 of the rules of this court in so far as the issue of notice of at least 3 clear days before the hearing of the appeal and the setting up of the grounds of objection are concerned.
I am also satisfied that the incorporation of the preliminary objection in brief of argument by the respondent has not rendered that preliminary objection invalid as to invite me to ignore same. Rather on the authority of Odu v. Agbor-Hemeson (2003) I NWLR (Pt 802) 624 this preliminary objection must be resolved first before the main appeal is heard.
The ground of objection which is set out in the respondent’s brief reads as follows:-
“That the appellant having directed the appeal only against the ‘Consequential Orders’ in the judgment of 15th July 2003 is not entitled to formulate and rely upon grounds which attack the substantive orders or the pre-judgment ruling of 15th July 2003.
Particulars
(a) Grounds 1 and 3 of the appeal relates to the propriety of the substantive order.
(b) Grounds 2, 3 and 4 of the appeal concern the pre-judgment ruling of 15th July 2005.”
The appellant’s notice of appeal reads thus:-
“TAKE NOTICE that the above named appellant being dissatisfied with the Judgment of the Honourable Justice Adefope Okojie sitting at the Lagos High Court No. 2, Ikeja Lagos dated 15th July 2003 doth hereby appeal to the Court of Appeal Lagos upon the ground set out in paragraph three and will at the hearing of the appeal seek the reliefs set out in paragraph 1.
- Part of the decision complained of:
That part of the judgment that imposed consequential orders on the appellant herein and in particular that part of the judgment that ordered the appellant herein to deliver up possession of the parcel of land and building situate at and known as No. 56 Ogundana Street, Ikeja, Lagos.”
Notice and grounds of appeal constitute the foundation of any appeal. Such foundation must be firm and strong enough to hold the appeal. Once the foundation is defective the appeal will collapse when effectively challenged.
The appeal herein is against that part of the judgment that imposed consequential orders on the appellant herein and in particular that part of the judgment that ordered the appellant herein to deliver up possession or the parcel of land and building situate at and known as No. 56 Ogundana Street, Ikeja, Lagos. The appellant’s ground 2 complains against the refusal by the Hon. Judge of the court below, to grant the application dated 14th July 2003 in which he sought to stay the delivery of the judgment and to be allowed to move the application for extension of time to file a statement of defence.
There is nothing wrong in reserving some interlocutory matters to be included in the final appeal. Each appeal must be treated according to its peculiar nature. However when such interlocutory matters are so reserved, they must be incorporated in the notice of appeal. Appeal against such interlocutory matters must be filed within 14 days as provide for in section 24 (2)(a) of the Court of Appeal Act, Cap C36 Laws of the Federation of Nigerian 2004. If the 14 days period has elapsed, leave of the court must be sought and obtained before such matters are incorporated in the final notice of appeal. Where they are not so incorporated in the notice of appeal the court will refuse to allow a ground of appeal on such interlocutory matter. See Owoniboys Technical Services Ltd v. U.B.N. Ltd (supra) pages 592-593.
In the instant appeal, ground 2 complains against the application which was filed on the 14th of July 2003, an application that was heard and refused on the 15th of July 2003. Since no appeal was filed against that ruling and ground 2 does not relate to the issues contained in the judgment against which this appeal lies, such ground cannot stand. This is the stand that this court took in the case of International Offshore Construction Ltd & 4 Ors v. Shoreline Liftboats Nigeria Ltd (2003) 16 NWLR (Pt. 845) 157 at 177 when it held:-
“The 2nd to 4th appellants were joined as parties on (sic) motion on notice dated 21st March, 2000. The decision, to join the 2nd and 4th appellants was based on the motion on notice dated 21st March, 2000 and is not contained in the judgment of 14th December 2000 being appealed against, therefore ground 2 of the amended notice of appeal on which issue 2 for determination is distilled is equally incompetent as it does not relate to the decision of the trial court in the judgment appealed against accordingly, it ought to be struck out and it is hereby struck out.”
I therefore strike out ground 2 for being incompetent
On ground 4, Agbamuche Esq. of counsel contends that the learned trial Judge below erred in law when she did not apply the principle of law that before consequential reliefs can be granted, the parties must be heard on the question of the reliefs sought and thereby denied appellant of fair hearing.
This ground complains about the non application of principle of law before the consequential reliefs were granted. It does not complain against substantive decision of the Court. A ground of appeal must relate to the issues raised in the judgment against which the appeal lies.
In International Offshore Construction Ltd & 4 Ors v. Shoreline Lift boats Nigeria Ltd (Supra) at page 176, paragraph D-F this Court held:-
“Grounds of appeal against a decision of a court must relate to that decision and should be a challenge to the ratio of the decision. Thus a ground of appeal must arise from the Judgment appealed against. Where a ground of appeal is not related to the judgment of the court being appealed from it becomes incompetent.”
The ground of appeal number 4 herein is against the consequential orders of the court and it has not challenged the ratio of the decision in the judgment against which the Appellant has appealed. I find the ground incompetent and same is hereby struck out.
What is now left is ground one which I will spare for the purpose of determining this appeal. The only issue distilled by the appellant from this ground of appeal is issue number one which reads thus:-
“Whether the learned trial Judge erred in law when she assumed jurisdiction to hear the suit contrary to the provisions of S.8(1)(a) of the Limitation Law Cap 118, Laws of Lagos State 1994”.
Titilola Akinlawon. Esq. of counsel for the respondent also formulated only one issue for determination and it reads:-
“Whether the suit was statute barred.”
The issues raised by both appellant and respondent are similar, as such I will treat them together.
It is the contention of Agbamuche Esq. of counsel, that by virtue of the provisions of Section 8 of the Limitation Law of Lagos State action founded all simple contract or quasi contract shall not be brought after the expiration of six years from the dale on which the cause of action occurred.
It is further contended by Agbamuche Esq. that the respondent’s action at the lower court was founded on simple contract and shouldn’t have been brought to court after the expiration of six months from the date such action accrued.
In aid of his submission, learned counsel cited-
(1) Fabumiyi & Anor v. Obaji & Anor (1967) 1 All NLR page 41 particularly at page 258
(2) Dr. M.A. Iragunima v. Rives State Housing & Property Development Authority & Ors. (2003) 12 NWLR (Pt.834) 427 at 441.
(3) Union Bank of Nigeria Ltd v. Alhaji Mufu Oki & Ors. (1999) 8 NWLR (Pt. 614) 244 at 251-252
(4) Ogunko & Ors v. Alhaji Muda Shelle (2004) 6 NWLR (Pt. 868) at page 17.
Titilola Akinlawon Esq. of counsel for the respondent in reply to the appellant’s submission submits that the claims of the respondent at the lower court was an action for recovery of land and so is not covered by Section 8 of the Limitation Low (Cap 118) Laws of Lagos State.
Section 8 of the Limitation Law Cap 118, Laws of Lagos State 1994 reads as follows:-
“The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued:-
(a) actions founded on simple contract;
(b) actions founded on quasi-contract.
From the record available before this court, the respondent and the appellant and/or the appellant’s predecessor in title never at anytime entered into any contract. The 1st defendant at the lower court sold the property which he held jointly with the respondent, his wife without the respondent’s consent. The respondent on hearing about the transaction made concerted effort to abort same without success, and this prompted her to sue in order to recover her right in the property. This is quite clear when in her writ she made her claims in the following words:-
“1. A deceleration that the purported assignment of the parcel of land and building situate at and known as 56, Ogundana Street, Ikeja, Lagos State by the 1st respondent to the 2nd defendant under the terms of a Deed of Assignment dated the 24th of February, 1989 is in breach of trust.
v. An order of rescission of the agreement to sell the parcel of land and building situate and known as 56 Ogundana Street, Ikeja, Lagos.
vi. An order enjoining the 2nd defendant by her servants, agents, privies or otherwise to deliver up possession of the parcel of land and building situate at and known as 56 Ogundana Street, Ikeja, Lagos.”
The respondent has in her claim set up a case for the return of the land which the 2nd defendant had assigned to Bashorun M. K. O. Abiola. The entire suit was fought on land and the Deed of Assignment concerned land.
By Section 16(2)(a) of the Limitation Law (Cap 118) Laws of Lagos State 1994, on action to recover land, 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 if it first accrued to some person through whom he claims. From this provision of the law, it is clear that the limitation period applicable to this matter is twelve (12) years.
Now the question here is whether the respondent initiated the action at the lower court outside the limitation period of twelve (12) years from the date on which the right of action accrued to her. In Grains Production Agency v. Charles Ezegbulem (1999) 1 NWLR (Pt. 587) 399 at 409, which was cited and relied upon by Agbamuehe, Esq. it was held that in order to determine the period of limitation, one has to look at the writ of summons and the statement of claim and compare the averments in the statement of claim as to date the wrong was committed with the date the writ of summons was filed. If the period between those two events is longer than the period prescribed by the relevant law as the period of limitation, the action is statute barred. See also Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1.
The verification of the fact of whether an action is statute barred can be done by a court without taking oral evidence from witnesses.
In the instant appeal, the Deed of Assignment is dated 24th February 1989. The respondent initiated her action by a writ of summons dated 11th of February 2000, a period of ten years, eleven months, twelve (12) days. Since the limitation law of Lagos State provides for 12 years within which an action for recovery of land should be initiated, clearly this suit was filed within time. I therefore hold that the respondent’s case is not statute barred.
On the whole this appeal lacks merit and it is accordingly dismissed. The appellant shall pay to the respondent the cost of this appeal which I assess at five thousand naira (N5,000.00).
Other Citations: (2006)LCN/1897(CA)
