3PLR – PASTOR AKIN ALLEN V. ALHAJI J. A. ODUBEKO
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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PASTOR AKIN ALLEN
V.
ALHAJI J. A. ODUBEKO
COURT OF APPEAL
(LAGOS DIVISION)
CA/L/160/89
THURSDAY, 15TH MAY, 1997
3PLR/1997/9 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
RABIU DANLAMI MUHAMMAD, J.C.A. (Presided and Read the Leading Judgment)
EMMANUEL OLAYINKA AYOOLA, J.C.A.
IGNATIUS CHUKWUDI PATS-ACHOLONU, J.C.A.
REPRESENTATION
A.B. Abioye – for the Respondent
Yomi Alokolaro – for the Respondent
MAIN ISSUES
ACTION – Limitation of action to recover land -Period within which to bring – Section 16(2) of the Limitation Law of Lagos State. 1973 – Failure to bring within the period – Effect – Section 21 of the Limitation Law of Lagos State, 1973.
APPEAL – Fresh point on appeal-Need for leave to argue – Where not obtained – Effect.
DOCUMENTS – Documentary evidence – Use of in assessing conflicting oral testimony.
EQUITY – Plea of stale claim – Plea that action is statute-barred – Nature of both and distinction between.
ESTOPPEL – Plea of stale claim – Plea that action is statute-barred – Nature of both and distinction between.
EVIDENCE – Documentary evidence – Use of in assessing conflicting oral testimony.
EVIDENCE – Witnesses – Demeanour of witnesses – Insignificance of where documents have been admitted.
LAND LAW – Declaration of title – Whether can be granted to or divested from persons not parties to a proceeding.
MAIN JUDGEMENT
MUHAMMAD, J.C.A (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Lagos holden at lkeja and presided by Desalu J. (of blessed memory) in which the learned trial Judge granted all the reliefs sought by the plaintiff. The claim made by the plaintiff, now the respondent, against the defendant, now the appellant is as follows:-
“1. A declaration of title in fee simple on a piece or parcel of land situate lying and being at No. 41, Iseyin Street, Palmgrove, Mushin, Lagos State.
- N200.00 for general damages for trespass to the said land.
- Perpetual injunction restraining the defendant his servants and/or agents from committing further acts of trespass to the said land”.
Pleadings were filed and exchanged. At the trial, the respondent called three witnesses in support of his claim and tendered some documents which were admitted as exhibits. The appellant called two witnesses and also tendered some documents which were admitted as exhibits.
After address by counsel, the learned trial Judge delivered a considered judgment wherein he held as follows:-
“I am satisfied on the evidence before me in this case, that the plaintiff has established that he has a right to the land in dispute and is therefore entitled to a declaration of title to the said land by this Court”
He held that the case succeeded in its entirety and granted all the reliefs sought by the respondent.
Aggrieved by this decision the appellant appealed to this Court. He initially filed three grounds of appeal and by the order of this court the appellant was granted leave to amend his notice of appeal by filing additional grounds of appeal.
In accordance with the Rules of this Court, Briefs of argument were filed and exchanged by the parties. In the appellant’s brief of argument the following two issues were formulated for the determination of the appeal.-
“(a) Whether from the facts disclosed in the Records of Appeal, the plea of stale claim raised by the appellant in his amended pleadings was not made out to warrant the respondent’s claim being struck out as statute barred.
(b) By the finding of the learned trial Judge that he preferred and believed the evidence of one party to the other party, whether the finding could be supported in law having regard to the passage of time between the time of trial and when the judgment was delivered”.
The respondent also identified two issues for determination. These are:-
(1) Whether a point which was not submitted for determination in the lower court can form a ground of appeal or an issue for determination in a brief.
(2) Whether a long time to conclude a case can be a ground for the reversal of the judgment of the trial court when the trial Judge did not rely solely on the evidence of witnesses as a result of his impression on them but rely also on the documentary exhibits tendered by the two parties during trial”.
Considering the grounds of appeal, the issues formulated by the appellant are more apt because they flow directly from the grounds of appeal filed. The first issue formulated by the respondent did not arise from any of the grounds of appeal. It cannot therefore, be an issue for the determination of this appeal. Instead of making it an issue, it could have been properly raised as a preliminary objection. The respondent’s second issue is in effect the same as the appellant’s second issue. I will therefore adopt the appellant’s issues for the determination of this appeal.
At the hearing of the appeal, counsel for both parties relied on their respective briefs. It was submitted in the appellant’s brief that the appellant having pleaded long continuous and undisturbed possession, stale claim and all other equitable defences open to him and the evidence of PW2 who testified that he was aware of the presence of the appellant since 1962 and the present action was not instituted until 16th November 1977 i.e. 15 years after the cause of action arose. The Limitation Act No. 88 of 1966 was referred to and it was submitted that the respondent’s title was extinguished when he instituted the action. S.16(2)(a) of the Limitation Law Cap 70 Laws of Lagos State 1973 was also referred to. The case of Mrs. G.A.R. Sosan AND Ors. v. Dr. M.B. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241 was also referred to.
In reply the respondent submitted that Statute of Limitation cannot be invoked against the predecessors – in – title of the appellant who were not parties to the action. The case of I.M.S. Atunrase v. Alhaji Abdul Mojid Sunmola AND Anor (1985) 1 NWLR (Pt. 1) was relied on. It was further submitted that the statute of Limitation did not apply against the respondent who purchased the land in 1973, saw the appellant on the land in 1976 and took action against the appellant in 1977.
S.15(2) of the Limitation Decree No. 88 of 1966 which is in Pari materia with S.16(2) of the Limitation Law Cap 70 Laws of Lagos State 1973 provides:-
“(2) 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 accrued to the person bringing it or, if it first accrued to some person through whom he claims., to that person”.
Where a person fails to bring action for recovery of land within the time stipulated by the Decree, will result in the extinction of his title. See S.20 of the said Decree and S. 21 of the. Lagos State Limitation Law which are exactly the same. S. 20 provides:-
“On the expiration of the period fixed by this Decree for any person to bring an action to recover land, the title of that person to the land shall be extinguished”.
From the pleadings and the evidence adduced before the lower court, it has been established that the respondent purchased the land in dispute on 1st February 1973, see Exhibit “E”., He was put into quiet possession of the land and it was only in 1976 that he saw the appellant on the land for the first time. He brought the action in 1977. In his evidence – in-chief this was what the respondent said at pages 79- 80 of the records:-
“The land was vacant when I purchased.
There was a small shed on a portion of the land. It was of planks.
I was put in possession. I was not disturbed by anyone. I regularly visited the land not far from my house. At a stage, I caused the land to be fenced. I surveyed the land through my surveyor. I knew.
Defendant after I bought the land. I knew him in 1976 when he wanted to erect a structure on the land.
I saw the defendant on land in 1976 he started to dig the land and I warned him and told him the land belongs to me.
Defendant insisted on digging. I engaged people to close up the land dug. There was going to be chaos. Hence I brought this action.
The learned trial Judge believed this piece of evidence which is in consonance with the Statement of Claim. Going by this evidence, the cause of action accrued in 1976 when the respondent first saw the appellant on the land. This means that the suit was instituted within one year of the accrual of the cause of action. This is well within the twelve years stipulated by the Limitation Law. I therefore hold that the limitation law does not apply to the present case the respondent having instituted the action within one year of the accrual of the action.
It was however argued by the appellant that PW2 Thomas Abisola Wilson, the respondent’ s-predecessor in-title knew the appellant was in adverse possession of the land in 1962 and that the action PW2 instituted in 1962 was aborted in 1965 before he proceeded and sold the land to the respondent in 1973, the respondent should not be allowed to take over the land since the respondent knew, through his predecessor-in-title, the presence of the land in dispute since 1962.
It has not been shown that the respondent personally was aware that the appellant was in adverse possession when he purchased the land. Indeed the appellant testified that when he bought the land it was vacant and that he was put in quiet possession of the land. In any event the statute of Limitation cannot be invoked against predecessors-in-title who are not parties to an action. The title of the family of the predecessors – in-title could only be extinguished if they are joined in the action. See Atunrase v. Sunmola (1985) 1 NWLR (Pt. 1) 105 where Kawu, J.S.C. said at page 112:-
“As regards the Limitation Law, it is my view that it cannot be pleaded against Oyero Family who are not parties to these proceedings and who have not in fact instituted any action to recover possession from the appellant”
Oputa, J.S.C. said in the same case at page 123 that:-
“Title cannot be declared in the owners in proceedings to which they are not parties. Similarly the real owners cannot be divested of their title in such proceedings”.
In our present case the predecessors – in-title are not parties to these proceedings, the Limitation Law cannot be invoked against them. In the light of what I have said, I will answer the first issue in the negative.
I now come to the second issue. It was submitted by the appellant that since the trial took four years to conclude and having regard to the circumstances of this case, the learned trial Judge, with the passage of time, could not vividly recollect the demeanour of witnesses who testified before him as to know which witnesses should be believed and which evidence should be preferred. It was also submitted that since the trial was unduly prolonged, the trial Judge should have referred the matter to the Chief Judge who could have transferred the suit to another Judge for trial anew. It was the contention of the appellant that having regard to the series of adjournments between the period when the trial began and the time it was concluded, the learned trial Judge at the time he delivered judgment was not in a good position to assess the credibility and demeanour of witnesses who testified so as to be able to prefer and believe one party’s evidence to that of the other party’s evidence. The appellant urged the Court to allow the appeal.
The respondent on the other hand submitted that where documentary exhibits have been submitted in evidence, demeanour play an insignificant role, if any:’ It was further submitted that the documents tendered in the case were used as a hanger with which to assess the oral testimony. The case of Olujinle v.Adeagbo (19-8) 2 NWLR (Pt. 75) 238 was referred to. It was also submitted that the trial Judge relied both on oral and documentary evidence from the plaintiff and the defendant. It was contended that the lapse of time had no adverse effect on the judgment and the trial Judge did not rely alone on the oral evidence but also on documentary evidence which is of a permanent nature before he delivered his judgment.
It is true that the learned trial Judge stated during the course of his judgment at page 185 of the record that:-
“I prefer and believe the homogeneous traditional evidence of the plaintiff and his witnesses to the heterogeneous evidence of the defendant and his witness”.
However, reading the whole judgment it would be seen that the trial Judge considered all the evidence adduced before him both oral and documentary before making the above statement. It is obvious that he was referring to the nature and the type of evidence adduced by the parties. From the judgment the trial Judge did not base his judgment on the demeanour of the witnesses. In his judgment the trial Judge stated at page 179 of the record that:-
“It is worthy of note that the derivative title of the predecessors in title of the defendant and starting from OJOMO EYISHA family up to the defendant, was not supported by any document other than receipts for letting of land Exhibits “J” to “J4” “.
He went on to state at page 180:-
“The defendant said the title of WILLIAMS was registered and that he had a copy which was lost. No such certified true copy of the document of title WILLIAMS was tendered.
PASTOR ALLEN could not give the particulars of the Power of Attorney alleged to have been given to EMMANUEL SETON and could not say which area of land he was empowered to sell.
The defendant said although he had receipts for the purchase price for the land he paid by instalments, he was unable to produce them as they were lost”
The learned trial Judge then proceeded to state at page 185 that:-
The plaintiff and his witness gave evidence which I believe of how the land in dispute devolved on him, from the accepted original owners the OJOMO EYISHAFAMIL Y through LARINDEAGBA (in 1910), to EMMANUEL ADEKUNLE SETON (in 1912) to ADEWUNMI and ADEBIYI (in 1936) to EBUN ADESOLA in 1944 and finally in 1973 to the plaintiff.
I prefer and believe the homogeneous traditional evidence of the plaintiff and his witnesses, to the heterogeneous evidence of the defendant and his witnesses.
The documents of title duly authenticated and executed, produced by the plaintiff were:-
EXHIBIT” A ” certificate of Purchase dated 13th June, 1938,
EXHIBIT “B” Conveyance dated 16th September, 1944 and conveyance of the plaintiff EXHIBIT “E” dated 15th February 1973.
There is the evidence of PW3 the Licensed Surveyor, which I believe that the land as described in EXHIBIT “A” is the same as in EXHIBIT “B” and encompasses the land in dispute, in EXHIBIT
“. The defendant on his part did not relate his own land which he admitted was the land in dispute, to either the land of OJOMO EYISHA family or his own predecessor in title. Indeed the defendant produced no document of his title from his radical owner how he got it, authenticated or not”.
And at page 186 the learned trial Judge has this to say:-
“It is to be observed that the defendant called no evidence as to his derivative title and none of his predecessors in title was called to testify”.
I have quoted extensively from the judgment of the court below in order to show that at arriving his decision, the trial Judge did not rely on the demeanour of the witnesses alone. He has considered all the circumstances of the case before arriving at his decision. Indeed, from the judgment, the trial Judge relied more on the documentary evidence than on the oral evidence. The trial Judge was right to have relied on the documentary evidence because documentary evidence should be used as a hanger from which to assess conflicting oral testimony. See Lion Buildings Ltd. v. Shadipe (1976) 12 SC. 135. It should be noted that documentary evidence is usually a very reliable piece of evidence because of its permanent nature. See Olujinle v. Adeagbo (1988) 2 NWLR (Pt 75) 238 where Nnaemeka Agu, J.S.C. stated at 254 that:-
“But in a case like this in which documentary exhibits have been admitted in evidence, demeanour plays an insignificant, if any, role. The documents tendered in this case should have been used as a hanger with which to assess oral testimony.”
In our present case, the demeanour of the witnesses clearly played an insignificant role in influencing the trial Judge in arriving at a decision. He relied heavily on the documentary evidence before him which he used as hanger to assess the conflicting oral testimony. In view of the above, I will answer the second issue in the affirmative i.e. the learned Judge’s finding could be supported in law.
In conclusion, therefore, the appeal lacks merit and it fails. It is hereby dismissed. I affirm the judgment of the lower court. The respondent is entitled to cost which I assess at N2,000.00.
AYOOLA, J .C.A: I have had the opportunity of reading in draft the judgment just delivered by my learned brother, Muhammad, J.C.A. I agree with him that this appeal should be dismissed. He has set out in his judgment the two issues for determination as formulated by the appellant.
The first issue was formulated on an erroneous assumption that a plea of stale claim is the same as a plea that an action is statute barred. The plea of stale claim
Is an equitable defence. The principal question when such plea is raised, is whether, from the conduct of the other party and the overall circumstances of the case, it will not be unconscionable to give judgment for the plaintiff notwithstanding that he may have established some legal right in himself. A plea that an action is statute-barred, on the other hand, is a point of law which must be raised by an express plea.
it is not an equitable defence. The person who raises such plea is entitled to the benefits of the relevant statute of limitation, subject to interruptions of the period of limitation as may be permitted by the relevant statute, once he is able to establish the relevant period from accrual of cause of action to the institution of the action.
the case of Awo v. Cookey Gam (1913) 2 NLR 100 illustrates the distinction between the two pleas.
In the present case, the appellant averred in his Further Amended Statement of Defence No.2 as follows:
“33(a) The defendant will at the trial rely on the defence of long, continuous, undisturbed and uninterrupted possession (by him and his predecessors – by, stale claim and all other equitable defences open to him”
it may be further added that in paragraph 32 of the said defence he raised facts which were probably intended to support an equitable defence of laches and acquiescence. By virtue of Order 16 Rule 11 of the High Court of Lagos (Civil procedure) Rules the Limitation Law is one of the defences that must be specially pleaded. The appellant rightly conceded in his brief of argument that ‘on the first issue for determination, the point was never raised at the lower court’. The surprising thing is that that fact having dawned on him early in the appellate proceedings, he did not seek leave to argue fresh points on appeal. In my view the question of limitation not having been raised in the High Court is not a point which can now be raised. It does in my view appear futile to consider whether or not the appellant would have succeed were the plea raised. To begin to hold such plea made out as the appellant would want us to when by reason of the pleadings in the High Court, no issue as to limitation has been raised or tried by the High Court will be manifestly unjust to the respondent. I hold that the first issue does not arise.
For the reasons contained in the leading judgment of my learned brother Muhammad,J.C.A. I too would answer the second issue in the affirmative. In sum, too would dismiss the appeal, with N2,000 costs to the respondent.
PATS-ACHOLONU, J,C,A: I have read in draft the judgment of my learned brother Muhammad R.D. J.C.A. and I agree with him. He made an incisive analysis of the case. It is quite obvious that the limitation of action pleaded by the appellants cannot avail them since the respondents took action a year after the trespass on his property was made.
In the point of lapse of time although lapse of memory may wreak havoc on the final pronouncement of the court where a case has lasted too long, as memory may fade but in this case the court relies mostly on the documents tendered. There is no merit in the appeal. It is accordingly dismissed with cost assessed at N2,000.00.
Appeal dismissed
Nigerian Cases Referred to in the Judgment
Atunrase v. Sunmola (1985) 1 NWLR (Pt. 1) 105
Awo v. Cooker Gam (1913) 2 NLR 100
Lion Buildings Ltd. v. Shadipe (1976) 12 S.C. 135
Qlujinle v. AdeagQo (1988) 2 NWLR (Pt.75) 238
Sosan v. Ademuyiwa (1986) 3 NWLR (Pt…27) 24 r
Nigerian Statute Referred to in the Judgment:
C Limitation Law Cap. 70, Laws of Lagos State, 1973,. Ss. 16(2)(a) AND 21
Limitation Decree No. 88, 1966 Ss. 15(2) AND 21
Nigerian Rule of Court Referred to in the Judgment:
High Court of Lagos State (Civil Procedure) Rules, 1972, O. 16 r. II
