Jimoh Adekoya Odubeko V. Victor Oladipo Fowler & Anor (1993)
LawGlobal-Hub Lead Judgment Report
ONU. J.S.C.
In the High Court of Lagos State presided over by Oshodi, J. the appellant, who was the plaintiff, caused a writ of summons to issue against the respondents who therein were defendants, for:
“1. Declaration of title in fee simple on a piece or parcel of land situate, lying and being at No. 20 Idera Street, Palmgrove, Mushin West, Lagos State, a site plan of which shall be filed later.
- N200.00 for general damages for trespass to the said land.
- Perpetual injunction restraining the defendants, their servants and/or agents from committing further acts of trespass to the said land. Annual rental value is about N20.00”
Pleading were ordered, duly filed and exchanged with the same being further amended by various court orders. The case went to trial with the appellant giving evidence and calling two witnesses whilst the respondents, for their defence, called three witnesses in all. The learned trial Judge gave judgment for the appellant on 8th October, 1982.
Being dissatisfied with the judgment, the respondents appealed to the Court of Appeal sitting in Lagos which unanimously allowed the appeal, set aside the decision of the trial court and dismissed the appellant’s claim.
Aggrieved by the decision, the appellant has further appealed to this Court on five grounds, the last of which is with leave of this Court.
The background facts to the case ought briefly to be stated as follows:
It was common ground that the land belonged originally to Ojomo Eyisha Chieftaincy Family. According to the appellant, the said family in 1910 sold land which included the land in dispute to one Larinde Agba, who in turn sold it to Emmanuel Seton. As a result of Suit No. 169/32 between one Bello Larinde and the said Emmanuel Seton, whereby the latter became a judgment debtor, the whole land of 41,786 acres was sold by auction by order of Court on the 4th of March, 1936. Joseph Adewunmi and Joseph Adebiyi bought the land at the auction sale as per their certificate of purchase (Exhibit’ A’) dated 13th June. 193R. In 1944, the two purchasers sold and conveyed the land by a registered conveyance (Exhibit B), to one Janel Ebun Adesola, also called Mrs. Ebun Adesola Wilson. After the death of Janet Ebun Adesola Wilson, her husband, Ezekiel John Adeyinka Wilson, administered her estate until his death in 1953. After his death, Thomas Wilson and three other persons were appointed administrators of Mrs. Wilson’s Estate by order of Court (Exhibit B) dated 31st March, 1969. The Letters of Administration were tendered as Exhibit C. The appellant maintains that the land in dispute was sold and conveyed to him by the administrators of Mrs. Wilson’s Estate about the year 1970. A deed of conveyance later executed in his favour, was admitted as Exhibit F dated 5th July, 1972. It then transpired that in 1977 when he had prepared his building plans to wit, Exhibit G and was in the process of commencing building operations on the land, the respondents disturbed him and he instructed his solicitors to seek redress in court.
The respondent’s case is that they, are owners of the land in dispute by inheritance from their father, Christopher Kolade Fowler, who died on 2nd December, 1962. They made a statutory declaration of their right to the land on 3rd March, 1967 vide Exhibit M and duly registered same. They asserted that their father was a purchaser for value of the land by virtue of a registered deed of conveyance, the certified true copy of which was tendered as Exhibit L and later, the original instrument received as Exhibit U with both (being the same documents) dated 29/11/43.
The respondents also pleaded and gave evidence of other acts of possession and ownership by their father. These included the erection of a residential house with approved plans on a portion of the plots purchased by him in 1946. That he let parts of the house as well as portions of the vacant land to rent-paying tenants, some of who testified. It was also part of their case that the land in dispute does not form part of the land purchased pursuant to till order of court on 4th March, 1936 alluded to by the appellant. They in addition demonstrated they paid tenement rates to Mushin Town Council since 1971. They also pleaded the Supreme Court decision in SC.165/1968 and pleaded long possession, Limitation Law and equitable defences.
As earlier stated, after hearing, the learned trial judge found in favour of the appellant. The respondents’ appeal against that decision having been upset by the Court of Appeal (hereinafter referred to as the Court below) he has now appealed to this court as herein-before stated.
The parties acting pursuant to the rules of Court exchanged briefs of argument. The appellant in his two briefs of argument, the first which was dated and filed on 18th May, 1988 and the second which was dated and filed on 24th May, 1991, have jointly submitted therein five issues (three in the first and two in the second) thus:
- Whether the Court of Appeal has the right to introduce extraneous matter into the respondent’s case on which no evidence was adduced in the lower court.
- Whether the defendant (sic) (respondent (sic) herein) has (sic) adduced sufficient evidence to prove acts of long possession to justify the finding of facts made by the Court of Appeal to enable it allow the appeal and to interfere with the findings of the lower court.
- Whether the statue (sic) of limitation applied in this case.
- Whether the long possession ascribed to the defendant (sic) without the knowledge of the plaintiff or his predecessor-in-title can defeat the established title of the plaintiff.
- Whether the law of Lagos State Limitation can defeat the title of a family without joining all the parties to the action.
The respondents on the other hand in their amended brief dated 16th December, 1991 also submitted three issues as arising in this appeal, to wit:
0.1. Whether or nor the learned Justices of the Court of Appeal were right in not supporting the findings made by the trial Judge having regard to the pleadings and evidence adduced.
0.2. Whether or not, in the circumstances of this case, the Court of Appeal was right in holding that the respondents have adduced sufficient evidence to prove acts of ownership and long possession by their predecessor-in-title superior to those of appellant.
0.3. Whether or not, as between the respondents and the appellant, the statute of limitation applied to extinguish the interest of any of the appellants (sic).
It is noteworthy that while the appellant originally submitted three issues for determination in his first brief, all distilled from four grounds contained in his Notice of Appeal dated 22nd August, 1986 (see pages 268-270 of the Record), in his second brief of argument filed on 24th May, 1991, he formulated two additional issues (5 and 6) which in form and substance are identical to issues 2 and 3 in the first (original) brief.
Now, in the first brief the appellant has elected to argue the grounds (he in fact has abandoned ground 1 thereof). This Court has held times without number that it is the issues and not the grounds that should be argued. This is founded in the established principle of law that it is on the basis of the issues, not the grounds that parties found their contention. See Macaulay v. NAL Merchant Bank (1990) 4 NWLR (Pt. 144) 283 at 321 and Chinweze v. Masi (1989) 1 NWLR (Pt. 97) 254, to mention but a few. In doing this, it must always be borne in mind that in the quest for good brief-writing, grounds of appeal upon which issues for determination are formulated must relate 10 matters decided in the judgment from which the appeal springs. See Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546 at 590. Since in the instant case, ground 1 which has been abandoned is not related to any of the issues proffered, it is accordingly struck out.
Having already observed that issue 2 and 3 in the first brief are identical with issues 5 and 6 in the second brief, both of which respectively overlap grounds 3 and 4, I will proceed to consider the three issues which are what in essence fall for determination, commencing with issue 1.
I will adopt the appellant’s issues (even though it was the grounds that were wrongly argued) for my consideration of the appeal as follows:
ISSUE 1:
The main thrust of the appellant’s complaint on this issue is that the Court below was wrong when it introduced extraneous matters into the respondent’s case on which no evidence was adduced in the trial court. The attack is particularly directed at the extract at page 240, lines 4-15 of the record wherein the coul1 below found as follows:
“It is also noteworthy that the deed recited some conveyance and other contracts of sale which were more than twenty years old at the date the conveyance was executed in 1943. Examples were those of 24th of October, 1913 and 23rd December, 1915. In view of the provision of section 129 of the Evidence Act, those recitals should, in so far as there is no evidence to show that they were inaccurate, be sufficient evidence of the truth of the facts so recited……….. As it is so, the complaint of the appellants about the way the learned Judge treated Exhibit L or U is well founded:’
A careful scrutiny of the evidence adduced in the trial court and the argument subsequently proffered in the court below on appeal would seem to indicate that it is the trial court rather than the court below that by the above passage introduced extraneous matters into the case. The following are my reasons.
The 1st D.W. Victor Oladipo Fowler at page 105 of the record had inter alia this to say in respect of Exhibit “L”.
“Exhibit ‘L’ is the certified true copy of the conveyance of my father that we took to the Land’s Registry……”
In justifying how this piece of evidence became imperative from the mouth of 1st D.W, it is necessary to recall that upon a summons taken out by A.F.O. Kwentua, of counsel for the respondents; which summons was supported by a 6 paragraph affidavit. paragraphs 2 and 3 thereof read as follows:
“2. That after the court’s sitting on the 30th of June, 1982, my solicitor…….. informed me and I verily believe that it would be in the interest of justice for me to locate and make available to the court the original copy of the conveyance or a better certified copy of the conveyance of the land in dispute to enable the court to adjudicate on the facts of this case.
- That consequent upon the advise of our counsel, I search (sic) the records and archives of my late father in Lagos and Abeokuta where I found the original of the conveyance.”
Sequel to the above depositions. 5th D.W., Samuel Adesina Fowler, who incidentally is the 2nd respondent. was recalled to tender an instrument registered as 91/91/66 at the Lagos Lands Registry which without any opposition from the opposing counsel was received as Exhibit “U”. At that point in time too, learned counsel for the respondents prayed the learned trial Judge to visit the locus. The learned trial Judge however deferred the visit which, in fact, never took place.
It is pertinent to emphasise that no iota of evidence was led by both sides at the trial, and none of the counsel raised any issue as to the genuiness or otherwise of Exhibits “L” and “U” in their final addresses to the trial court; nor was any evidence of discrepancy led between the two documents (Exhibits).
I therefore agree with learned counsel for respondents’ submission that there exists no basis to ground the finding of the trial court that Exhibit “L” and “U” created doubt. There is no known law, statutory or otherwise, which forbids a hand-written copy of a typed document such as Exhibit “L” from being tendered as a validly admissible evidence; especially where the copy was certified. Moreover, neither the parties nor the court quarrelled with the certification of the copy (Exhibit L). Accordingly, Section 113(1) of the Evidence Act which provides that:-
“The Court shall presume every document purporting to be a certificate, a certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorised thereto to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.”
has sway here.
Thus, in the absence of any evidence to the contrary, there is a presumption that things are rightly and properly done in accordance with the maxim Omnia Praesumuntur Rite esse Acta See I.R.P. (Nig.) Ltd v. Oviawe (1992) 5 NWLR (Pt 243) 572 Magnusson v. Koiki (1991) 4 NWLR (Pt. 183) 119 C.A. See also Re Randle, Nelson & Anor v. Akofiranmi (1962) 1 SCNLR 252; (1962) All NLR 130.
Granted that the addresses of counsel had centred on the genuiness or otherwise of Exhibits “L” and “U”. it is my respectful view that such addresses cannot attain the acceptability of the primary evidence forthcoming from witnesses to the proceedings. See Oduola v. Coker (1981) 5 S.C. 197. Moreover and significantly, Exhibit “L” was tendered by the appellant through P.W. 3 whereas the respondents tendered Exhibit “U” as the deed they were relying upon.
Further, it is settled law that parties are bound by their pleadings. See Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360 and African Continental Seaways Limited v. Nigeria Dredgings Roads and General Works Ltd. (1977) 5 S.C. 235 at 247. The court is precluded from speculating or making a case for either party to the proceedings by suo motu formulating the weakness in the case (if any) and resolving same in favour of one of the parties. See Ibuluya v. Dikibo (1976) 6 S.C. 97 at 104 and Ihewuezi v. Ekeanya (1989) 1 NWLR (PI. 96) 239 at 248.
As rightly pointed out in the judgment of the court below:
“Most importantly, neither in the pleadings, nor in evidence, nor in the address was any contradiction or inconsistency shown to exist between the contents of the two documents.”
Thus, in the case in hand, it is the learned trial Judge, as opposed to the court below, that introduced extraneous matters into the case and so erred in not using the facts of the case as presented before him.
By his findings, the learned trial Judge misdirected himself. Thus, the court below was clearly therefore justified when it held, disturbing such findings of fact, as follows:
“…..on the pleading and the evidence the parties brought to court the learned trial Judge had no business trying to pick holes between the two documents Exhibits ‘L’ and U’. In any case. there were no such holes to pick.”
Nor do I consider the invocation of Section 129 of the Evidence Act by the Court below as irrelevant as appellant in his argument would have us to hold.
Section 129 of the Evidence Act referred to above provides:
“Recitals, statements, and descriptions of facts, matters and parties contained in deeds. instruments. Acts of Parliament. or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descriptions,”
With regard to Exhibit D (copies of previous judgments) also attacked as matters extraneous to the case in hand. I endorse the views of the court below when it succinctly held:
“As none of these judgments has been pleaded as res Judicata all that they amount to is evidence of relevant facts………..”
See Omosanya v. Anifowoshe (1959) SCNLR 217: (1959) 4 FSC 94.
The contention of the appellant that the Court below introduced extraneous matters in the instant case therefore lacks substance. See Ajadi & 2 Ors v. Okenihun & 2 Ors. (1985) 1 NWLR (Pt. 3) 484 at 486.
Issue 1 is accordingly answered in the negative.
ISSUE 2:
The submission of learned counsel for the appellant in respect of this issue is that the Court of Appeal erroneously relied on evidence which has not established long possession as found when it held at page 245, lines 1-10 of the Record thus:
“The appellants in 1963, after the death of their father, made a statutory declaration (Exhibit M) of the ownership of the land in dispute. They also tendered the demand notices and receipts for payment of tenement rates on the house on the land in dispute (See Exhibits R and T).
On the other hand, the respondent appears to have shown no concrete act of possession of the land apart from the judgment referred to above and tendering Exhibits A, B, C, D and 1-12 all of which are comparatively much more recent than the appellants’ established long possession by themselves and their predecessor-in-title.”
It is pertinent here to state that in further support of the above findings, which the appellant impugns, the respondents for their defence had called three witnesses, apart from themselves who tendered various Exhibits including.
(a) Exhibits “L” and “U”, the certified true copy (hand written) and original (type-written) of respondents’ conveyance respectively.
(b) Exhibits S and S1 – writ of summons on the respondents in respect of the house on the land in dispute.
(c) Exhibit Q – Approved, building plans of 1945 and 1946 for the respondent’s house.
(d) Exhibit R – Tenement rates from the Council served on respondents in respect of the house on the land in dispute.
(e) Exhibit T -Receipts for rates paid by the respondents in respect of the tenement rates on the house on the land.
(f) Exhibit M – Statutory declaration of the respondents right to the land in dispute.
As opposed to the tendering and receipt of the above exhibits, the appellant adduced oral evidence by himself and through his witnesses tendered the following Exhibits viz:
(a) Exhibit “A” – True copy of Certificate of Purchase dated 13/6/38 registered as No. 24/24/452 in the Colony.
(b) Exhibit “B” – Certified true copy of the Order made on 13/3/69 in Suit No. M/40/69.
(c) Exhibit “C” – Certified true copy of letter of Administration of Janet Ebun Adesola
(d) Exhibit “D” – Certified true copy of the Supreme Court judgment in Suit No. Sc. 615/66 delivered on 6/6/69
(e) Exhibit “J” – J2 – Warning notices pasted on the land to keep off would be trespassers in 1960 and 1970 respectively.
In a situation such as precipitated before the trial Court, it was glaring that the two contending parties were in effect claiming to be in possession. It is settled law that where two parties claim to be in possession of land the law ascribes possession to the one with the better title. See Jones v. Chapman (1848) 2 Exch 803: Convey Island Commissioner v. Preedy (1922) 1 Ch. 179 both of which were quoted by this Court in the case of Mogaji & 2 Ors. v. Odofin & Ors. (1978) 4 S.C. 91 AT 96. See also Alhaji J. Aromire & 2 Ors. v. J. Awoyemi (1972) 1 All NLR (Pt..1) 101 at 112 – 115.
Now, true it is that the learned trial Judge reviewed the evidence of the parties on this issue of possession and made findings of facts at pages 149-150 of the Record and coming down heavily in favour of the appellant. The position of the Court below vis-a-vis the trial court, as I see it, is that stated and restated times without number by this Court regarding disturbance of findings of fact by an Appeal Court. It is, as stated by this Court in Kuforiji v. V. Y.B. Nigeria Ltd. (1981) 6-7 S.C. 40 at 84:
“Appeal Courts do not normally disturb findings of facts arrived at by the Courts below especially facts found by the trial courts. Indeed they are reluctant and slow to do so based upon the errors apparent from the printed record of proceedings. The Appeal Court will however rise to the call of duty in the interest of justice and disturb, alter, reverse or set aside the lower Court’s findings of facts it’ on the printed evidence such findings cannot be supported or are not proper conclusions and inferences to be drawn from the evidence.”
In George Okafor v. Eze Idigo III & Ors (1984) 1 SCNLR 481 ..(1984) N.S.C.C. 360 this Court had occasion to reiterate its stand in respect of interference with findings of fact in these words:
“Where there is unchallenged evidence of oral evidence the Court of Appeal should consider itself to be in as good a position as the trial Court in so far as the evaluation of such evidence is concerned”
See also Okpiri v. Jonah (1961) 1 SCNL 174; (1961) 1 All NLR (Pt.1) 107; Roland Omoregie & 3 Ors. v. Oviamwonyi Idugiemwanye & Ors. (1985) 2 NWLR (Pt.5) 41; (1985) 6 S.C. 150 at 161 (Per Eso, J.S.C.); Victor Woluchem & 2 Ors v. Chief Simon Gudi & Ors (1981) 5 S.C. 291 at 326 and Paul Omoregbe v. Ehigiator Edo (1971) 1 All NLR 282.
Now, at the hearing of the instant case in the trial Court, after the approved building plans of 1945 and 1946 (Exhibit “Q”) had been tendered through 2nd defendant who testified thereat as D.W. 5. that witness said inter-alia at pages 127 and 128 in examination in chief as follows:
“(Witness continues) In 1946 my father put up a building on the land and the building is still in existence till this moment………….” And
“my father died in December, 1962 with two of us surviving him the 1st and 2nd defendant (sic) respectively. I have been going on the land since 1950. On several occasions I went with my dad to collect rents and to effect repairs.”
Except that while subjected to cross-examination, this witness denied knowing anything about the land being owned by Emmanuel Seton or that Emmanuel Seton became a judgment debtor; his land was sold. Added to his final denial of knowing the Wilson family: that the land in dispute was owned by Mrs. Janet Ebun Adesola Wilson and (hat there has been any case on the land in dispute. nothing else came out of the cross-examination to indicate that respondents were not the people in possession of the land in dispute. Hence, the piece of evidence led through this witness (D.W.5) constituted unchallenged evidence from which the trial court could have inferred possession in the respondents’ favour.
Also, the 1st respondent. Victor Oladipupo Fowler testifying as D.W.1 had the following to say in examination-in-chief about 20 Idera Street Mushin in the trial court at page 105 thus:
“There are tenants staying in the concrete building. My brother and I collect rents every month from the tenants in respect of the building. One of the tenants is Chief Gbadabu Kosoko(s;c) another tenant is Mr Oghen who lives in the temporaring (sic) building…… My brother and lawn the property together after the death of our father (sic) we found documents relating to the property in dispute in the wardrobe. My brother and I are the only two surviving children of our late father C.K. Fowler. When we found the documents we took the conveyance executed in favour of our father and the other documents to the Land Registry, Lagos to process……. Exhibit ‘L’ is the certified true copy or the conveyance of my father that we took to the Lands Registry. I first went on the land in dispute in 1950 with my father and there was then the only concrete building on it.”
Not only did the respondents call Chief Gbadabiu Kosoko (D.W.1) to corroborate their evidence that he was their late father’s tenant at 20 Idera Street. Mushin until he left his one room apartment thereat in 1960 but other tenants such as D.W. J. Joseph Oluwole Olusanya and D.W. 4 Gabriel Oghen, the latter who said he was tenant at the property since 1965 and until then had never known the appellant. To add potency and strength to respondents’ case, D.W.2. Chief Gbadabu Kosoko, dealt a final blow to appellant’s case when he said in examination-in-chief at page 107 thus:
“I know Emmanuel Seton – I also know his mother Dorcas Seton. Dorcas sold land to me. Fowler also bought from Dorcas.”
This piece of evidence corroborated what D.W.5. Samuel Adesina Fowler who was 2nd defendant said when he testified at pages 126-127 of the Record as B follows:
“20 Idera Street is a large tract of land which was sold by Ojomo Eyisha Family to one Larinde who in turn sold to Kadiri and from Kadiri to Dorcas Bukosi Seton. Dorcas Seton then caused the land to be laid out in plots. These plots were auctioned by Joseph Ogundipe and my late father bought plots 124 and 125………..My late father also obtained a conveyance from Ogunbayode and Dorcas Seton. This is a certified true copy of the conveyance Exhibit ‘L”
With the evidence of these witnesses, formidable as it is, the Court below, in my view, was justified to have interfered albeit not lightly with the findings of filet where the trial court had failed to assess the evidence of witnesses, form impression about them and evaluate their evidence in the light of the impression so formed.
Added to the foregoing is the conclusion arrived at by the court below in relation to Exhibit “L” or “U” regarding the recitals therein and the application of section 129 of the Evidence Act which made it to hold that there being no evidence that these recitals were inaccurate, the same constituted the truth or the facts so recited. Hence, the complaint of the respondents as appellants about the way the learned trial Judge treated Exhibit “L” or “U” was held by the court below to be well-founded.
It has been amply demonstrated in my view, that since at least 1943 the respondents and their predecessor-in-title have been in possession of the land in dispute and that Mrs. Janet Ebun Adesola Wilson who challenged that right to possession in 1945 failed in her bid. Where a registered conveyance such as Exhibit “L” is a certified true copy (hand-written) but properly received as in the instant case, this will be sufficient for the proof of due execution of such Deed of Conveyance. See Jules v. Ajani (1980) 5 – 7 S.C. 96: Cardoso v. Daniel (1966) 1 All NLR 25 and Adelaja v. Fanoiki (1990) 2 NWLR (Pt.131) 131 at 154. Where the original (typewritten) Deed of Conveyance as Exhibit U in the instant case, speaks for itself or stands unchallenged in evidence at a trial, on its basis alone a plaintiff is entitled to judgment; See Lion Buildings Limited v. M. M. Shadipe (1976) 12 S.C. 135 at 159
Consequently, the decision of the Court below that the respondents and not the appellant have a better title over the land in dispute, is in my view, unimpeachable; there having been proof by preponderance in respondents favour when set side by side with appellant’s case. See Okupe v. Ifemembi (1974) 3 S.C. 97 at 103. In the result, my answer to Issue 2 is in the positive.
It now remains to consider, issue 3 which indicts the decision or the trial court for holding that the action was statute-barred.
I agree with the statement or the law as propounded by learned counsel for the appellant. Mr. Alokolaro, if I understand him well. that Limitation Law cannot be invoked against a person who is not a party in an action. See M.S. Atunrase & Ors. v. Alhaji Abdul Majid Sunmola & Ors. (1985) 1 S.C. 349; (1985) 1 NWLR (Pt.1) 105. Mr Alokolaro said in respect of the said Limitation Law of Lagos State- to use his own words in his final submission to us – “it does not apply since you cannot use it to extinguish the title of the owners or predecessors-in-title without joining them.”
Now, in the instant case, the owners (infact the question of predecessors-in-title would no longer strictly arise as both parties acknowledge derivation of the land in dispute from Ojomo Eyisha Chieftaincy Family and the respondents’ root of title stemming as it does. from Exhibit “L” or Exhibit “U” as held) would either mean the appellant or the respondents and so action having been commenced by the appellant in the Trial court against the respondents for declaration in fee simple to the land in dispute, general damages for trespass and an injunction, it is clear that Limitation Law of Lagos State would apply and joinder of the parties thereof impeccable regarding who is owner or is entitled to the declaration sought. Be that as it may, the general rule is that a plaintiff may have a cause of action but loses the right to enforce that cause of action by judicial process because the period of time laid down by the limitation law for bringing such actions elapsed. See: Savannah Bank of Nigeria Ltd v. Pan Atlantic Shipping & Transport Agencies Ltd & Anor (1987) 1 NWLR (Pt.49) 212. It is the law too that it is the defendant, in the instant case the respondents, who should plead and prove that the action instituted against them by the appellant is statute-barred. In other words, the onus is on the defendant who relies on such a defence of limitation of action to establish when the cause of action accrued to the plaintiff. Furthermore, it is also an established principle founded on the Savannah Bank v. Pan Atlantic Case (supra) that it is not enough to plead a particular date in the statement of defence as the date the cause of action arose because if the date is not admitted by any reply of the plaintiff to the defendant’s statement of defence, it will be impossible to compute the limitation period it being not permissible; indeed wrong for a court to compute time from the date pleaded. Appellant filed no such reply in this case.
Furthermore, in the instant case, it being that the pleadings of the parties and evidence made it abundantly clear that issues were joined and the ate the cause of action arose was at least 1946 i.e. when the respondents’ father came on to the land in dispute and built on it as evidenced by the approved plans (Exhibit Q), the statute of limitation applied to extinguish the interest of the appellant, (cf Omosanya v. Anifowoshe (supra). The court below was therefore justified to upset the trial court’s decision part of which at page 143 to 144 of the record states:
“I have read the relevant section 16(2)(a), 18 and 19 (of the Limitation Law). Applying these sections to this case, it is not clear from the testimony of the defence witnesses as to what time the late Mr. Fowler came on the land.
……………..It is my view that this defence cannot avail the defendants as there was not time lapse of about twelve years from the date on which the right of action accrued………………As between the plaintiff and the defendants, the statute does not apply as they are within time”
(Italics mine for emphasis)
From the preponderance of evidence adduced before the trial Court it was evidently clear that:
(a) The late CK, Fowler caused a plan to be made for the house on the land in dispute in 1946.
(b) That in that same year aforesaid he built a house on the said land.
(c) That in 1950, the 2nd D.W .. a fonner tenant of late CK. Fowler, rented a room in the house on the land and only left in 1960.
(d) That since 1950, D.W.5 and D.W.1., who are the surviving sons of late CK. Fowler had accompanied their father to the land.
(e) That in 1953, when 3rd D.W. first came into the land late C.K. Fowler’s building was already there.
(f) That each of the defence witnesses merely gave evidence as to when he first got to (he building or when he first saw the respondents’ father thereon; not when the house was built.
The Court below in my view therefore arrived at the right decision when at page 244 of the Record it held thus:
“It is also clear that the learned Judge was in error to have thought that D.W. 2 who slated that he rented an apartment in the building in 1950 and left in 1960 contradicted the date of erection of the building. Similar is the evidence of D.W. 3 that he first saw the appellant (sic) father on the land in dispute in 1958. Each of those witnesses was giving evidence of when he got to the building or when he first saw the appellant’s father not when the house was built,”
Section 16(2) of the Limitation Law of Lagos State provides as follows:
“The following Section shall apply to an action by a person to recover land.
(a) Subject to paragraph (b) of this 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 bringing it or if it first accrued to some person through whom he claims to that person.”
In view of the foregoing provisions, I am of the view that the trial court therefore fell into serious error when it held that:
“As between the plaintiff and the defendants the statute does not apply as they are within time,”
Between 1946 when the cause of action accrued and the time the appellant took out his Writ of Summons on 16th November, 1977. it was clearly thirty-one years of G inaction – call it acquiescence – when appellant did nothing to assert his rights. See Atunrase v. Sunmola (supra).
The effect of the law (Limitation Law, Lagos State) is in my view not only that the appellant could not sue at the time he went to court, but that by failure to abide by the provisions of section 21 of the same Law which provides that:
“21. On the expiration of the period fixed by this law for any person to bring an action to recover land, the title of that person to the land shall be extinguished,”
See Sosan v. Dr. M. B. Ademuyiwa S.C3/1984 of 16/5/86 (1986) 3 NWLR (Pt. 27) 241. The appellant was therefore suing the respondents in 1977, late in the day, to revive a dead claim. Appellant’s action thereby became statute-barred. See Fadare & Ors v. Attorney General of Oyo State (1982) 4 S.C.1 at page 8.
The result of all I have been saying is that Issue 3 is also answered in the affirmative. The appeal accordingly fails and it is dismissed with costs assessed at N1,000 only in favour of the respondents.
SC.58/1988
