3PLR – LASISI FADARE AND ORS V. ATTORNEY-GENERAL OF OYO STATE

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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LASISI FADARE AND ORS

V.

ATTORNEY-GENERAL OF OYO STATE

IN THE SUPREME COURT OF NIGERIA

2ND APRIL, 1982

SC.29/1981

3PLR/1982/28  (SC)

 

OTHER CITATIONS

(1982) All N.L.R 26

(1982) 1-2 S.C. 1

 

BEFORE THEIR LORDSHIPS

GEORGE SODEINDE SOWEMIMO, JSC

KAYODE ESO, JSC

ANTHONY NNAEMEZIE ANIAGOLU, JSC

AUGUSTINE NNAMANI, JSC

MUHAMMADU LAWAL UWAIS, JSC

 

REPRESENTATION

F.O. Fasusi for the Appellant

E.O. Awosusi, Deputy Director, Litigation and Advisory Service, Oyo State for the Respondent

 

MAIN ISSUES

 

LAND LAW:- Public lands acquisition – Claim for compensation – When deemed Statute barred

PRACTICE AND PROCEDURE – ACTION:- Limitation of action – Compensation claim for compulsory acquisition – When time begins to run

PRACTICE AND PROCEDURE:- Preliminary objection – Whether may be made after issues have been joined – Whether demurrer applicable – High Court Civil Procedure Rule of Western Nigeria, 22. RR.2 and 3.

PRACTICE AND PROCEDURE – APPEALS:- Supreme Court – Whether points not raised in the Courts below can be raised in the Supreme Court

 

Statutes referred to:

(1)     Public Land Acquisition Ordinance 1923.

(2)     Public Land Acquisition Law Cap. 167 1958 Law of the Federation of Nigeria. Statute of Limitation 1623.

(3)     Limitation Law Cap 64 Laws of Western Region of Nigeria 1959.

(40    The High Court Civil Procedure Rules of Western Nigeria.

 

Cases referred to:

(1)     Odive v. Obor (1974) 2 S.C. 23 at p. 31

(2)     Fakorede v. A.G. Western State [1969] 1 N.M.L.R. 189

(3)     Dabesi Djykpan v. Bhardadjor Crovuyovbe and Anor [1967] 1 All N .L.R. 134 at 137; [1967] N .M.L.R. 287 at 289

(4)     Etowa Enarig and Ors v. Fidelis IkorAdu (1981) 11-12 S.C. 45 at 46

(5)     K. Akpone v. Barclays Bank of Nigeria Ltd. and Anor (1977) 1 S.C. 47

(6)     A.G. Gold Coast and Ashanti Electric case 3W .A.C.A. 215 at 217

(7)     Glover as Head of Ohsodi Chieftaincy Family and Another v. Officer Administering the Government of Nigeria (1949) 19 N .L.R. 45 at 47

(8)     T.J Solomon v. African Steamship Company Ltd. 9 N.L.R. 99

(9)     Board of Trade v. Cayner, Irvine and Co. Ltd. [1927] A.C. 610

(10)   Cooke v. Gill (1873) L.R. 8 C.P. 107,110

(11)   Letang v. Cooper [1965] 1 Q.B. 223, 242

(12)   Are v. Attorney-General of Western Nigeria [1958] W.R.N.L.R. 126

(13)   Re Viban Group Reserve 10 N .L.R. 24 at 26.

MAIN JUDGMENT

NNAMANI, J . S. C. [DELIVERING THE LEAD JUDGMENT OF THE COURT]

In this suit the plaintiffs/appellants (hereinafter known as appellants) brought a claim in the High Court of Oyo State against the Attorney-General of Oyo State (herein referred to as the respondent) in the following terms:

“1.     The plaintiffs claim against the defendant for a declaration that the plaintiffs were the owners by inheritance under native law and custom of pieces or parcels of land thousands of acres at Oritamefa, Ibadan abutting both sides of Queen Elizabeth Road running from the TOTAL GARDEN ROUNDABOUT and stretching

(a)     towards the Secretariat Road;

(b)     Onikoko Stream, embracing both Oba Ademola II and Oba Abimbola                       Streets;

(c)     Are Family Land (all on the one side of Queen Elizabeth Road) and on the other side;

(d)     the stretch of land from Queen Elizabeth Road up to Ojo Stream extending upwards to the land at the upper Ojo Stream Agodi Area, up to and also embracing the land on which stands the I.D.H. compulsorily acquired under Government acquisition ‘F’ without notice and without compensation.

 

  1. An order that adequate compensation be paid to the plaintiffs for

(i)      economic crops destroyed on the land;

(ii)     buildings then on the land (51 in all);

(iii)    the land itself; and

(iv)    any other equitable relief the Court may deem fit to award in the circumstances.

 

Government offices in Ibadan are replete with both several and joint petitions from the claimants from the early 1930s calling for payment of compensation without success. Value of the land is over ONE HUNDRED THOUSAND NAIRA (:Nl00,000)”

 

Pleadings were ordered, duly filed and exchanged between the parties. In their statement of claim the appellants averred in paragraphs 9, 11, 18 and 20 as follows:

“9.     The plaintiffs further aver that it was never at any time officially brought to the notice of the illiterate settlers the clear intention of the Government; no notices were ‘served’ on the owners, no bell men proclaimed the acquisition according to native custom; no agreement as to whether the acquisition would be fee simple or for a term of years; no agreement as to the rent payable per annum per acre…

 

  1. The plaintiffs were not informed of their right to compensation in respect of the said acquisition and none was in fact paid to them; that their persistent demand for compensation proved of no avail except to elicit the information that unknown to them the land aforementioned had been acquired by Government for which purposes a formal notice dated 8th November, 1931, was published in Gazette No. 60 of 5th November, 1931 but this was NEVER ‘served’ on the owners

 

  1. After the cessation of hostilities in 1945 and removal of the troops from portions of the settlement, Government have not used all the land acquired for any feasible public purpose. What emerges is that the Government contrary to the avowed policy of compulsory acquisition for Public Purpose now seem to abandon the Public Purpose aspect of it on portions of the land at ORITAMEFA and are now leasing out portions of the acquired land to commercial and industrial tenants in large numbers …

 

  1. The plaintiffs further aver that their claim for compensation was commenced in time and from the moment the Government intention was known”.

 

In their Statement of Defence respondent specifically denied these averments and more particularly pleaded in paragraphs 2,3,5,7 and 8 as follows:

“2.     … that the land affected by this action is included in Acquisition ‘F’ vide Government Notice of 8th August, 1931 and published in the Nigerian Gazette No. 60 of 5th November, 1931

 

  1. … states further that wide publicity was given to the said acquisition. . .

 

  1. … pursuant to the acquisition notice referred to in paragraph 2 above, a certificate of title was issued on the 28th day of June, 1937 in favour of the Government of NIGERIA in respect of the properties mentioned in paragraph 4 above.

 

  1. With regard to paragraphs 16 and 20 of the statement of claim, the defendant states that the plaintiffs have not, at any time, submitted claim for compensation for any part of the land acquired and referred to in paragraph 2 above.

 

  1. The Defendant would contend at the trial of this action that

(a)     The Plaintiffs claim is statute-barred;

(b)     the claim was not properly brought before the Court;

(c)     the acquisition of the land in question is valid in law;

(d)     the deed of lease referred to in paragraph 4 above is valid in law’

(e)     the plaintiffs’ claim per the writ of summons and paragraphs 21 and 22 of the Statement of Claim is not maintainable in law.”

 

Before evidence was taken in the suit, the respondent filed a motion on notice under Order 22 Rule 2 of the High Court Civil Procedure Rules (i.e. of Western Nigeria) praying for an order to set down for hearing preliminary points of law in terms of the pleadings in paragraph 8(a)-(c) of the Statement of Defence set down above. The respondent also claimed that the claim was not maintainable in law.

 

After hearing argument Olu Ayooia J. on 14th July, 1975, upheld the respondent’s objections and held that appellants, claim was bad in law and dismissed same. Whereupon the appellants appealed to the Federal Court of Appeal, Ibadan (hereinafter referred to as the Court of Appeal). It is pertinent to mention that the only ground of Appeal argued before that Court was as follows:

 

“The learned trial judge was wrong in law in dismissing plaintiffs’ claim without hearing evidence after completion of pleadings on both sides See Ddive. v. Dbor (1974) 2 S. C. 23 at p. 31” This complaint really related to the proper meaning and scope of Order 22 Rules 1, 2, 3 of the High Court Civil Procedure Rules (West) for as Aseme J. C. A. rightly observed in the Court of Appeal

“. .. ground 1 above is an attack on the procedure adopted in the dismissal of the plaintiffs claim on a motion under Order 22 Rule 2 without hearing evidence. It is not an attack that the grounds of law relied on by the learned Judge in dismissing the claims are not justified, or that those points do not substantially dispose of the claims before him”.

 

The Court of Appeal Aseme and Akanbi, J.J. CA., Akinkugbe, J. C.A. dissenting) dismissed the appeal of the appellants. The present appeal to this Court has been brought by the appellants against that judgment. The appellants’ grounds of appeal were that:

“3      The learned Justices of the Court of Appeal in their majority decision were wrong in law in dismissing the only ground of appeal canvassed before it in that.-

 

(a)     The appeal was not brought on DEMURRER but on important matter of procedure affecting lives of thousands of the land owners and their descendants who were not paid compensation for the land acquired.

 

The introduction of DEMURRER led to miscarriage of justice because the point of law raised under Order 22 Rule 2 by the defendant does not substantially dispose of the WHOLE cause of action before the Court.

(b)     There was no formal notice of the acquisition to the 17 land owners before the Government expelled them from their holdings for the occupation of the soldiers going to fight the Hitleric war of 1939 NINE years after the acquisition.

 

(c)     The rights of the appellants to compensation have vested long before 19S8 the time of the amendment No.2 to the Law i.e. S.10 (2) of Cap. IDS Laws of the then Western State now Oyo State.

 

(d)     The learned Justices of the Federal Court of Appeal misdirected themselves and this misdirection led to miscarriage of justice when they stated:

“The claim put forward by the plaintiffs therefore is to upset the existing state of affairs with respect to Government relationship affecting that acquisition which was made 40 years ago” when the only ground of appeal canvassed before the Court concerned irregular application of Order 22 Rule 2 by the defendant.

 

(e)     There was no evidence either before the court below or before the court of appeal of the “wide publicity’ under which the defendant took cover. The case dismissed without relevant documentary evidence tendered before it.

 

(f)      Fakorede v. A. G. Western State [1969] 1 N .M.L.R. 189 referred to by Justices of the Court of Appeal is not on all fours with the present case on the fact of payment of compensation”.

 

In their brief of argument, the appellants under ground 3 (a) above raised what they called questions of law to be considered by this Court, but none of these matters was raised or considered by the court below nor do all of them directly arise from the grounds of appeal filed. The respondent has in his brief of argument objected to the appellants arguing grounds 3(a)-(f) on the grounds that these matters were not canvassed before the Federal Court of Appeal. It is settled law that the proper time for such an objection is at the time the appellants apply to this Court for leave to argue the new points. But no such application was made to this Court although these grounds were exhibited on the application for leave granted by the Court of Appeal. See Dabesi Djukpan v. Rhardadjor Orovuyovbo and Anor [1967] 1 All N.L.R. 134 at 137 or [1967] N.N.L.R. 287 at 289. Also the recent decision of this Court: Etowa Enang and others v. Fidelis Ikor Adu (1981) 11-12 S. C. 25 at 46. It is also settled law that this Court will allow a party to raise a point not raised in the court below if it is a point of substantive or procedural law which needs to be allowed to avoid a miscarriage of justice but leave has to be sought to raise it. K. Akpone and Barclays Banks Nigeria Ltd. and Anor. (1977) 1.S.C. 47. No such leave was sought by learned counsel for the appellants during the hearing of this appeal in this Court. I would therefore discountenance grounds 3(b )-(c) of the grounds of appeal as well as the so-called questions of law raised by the appellants underground 3(a). Learned counsel for the appellants was probably conscious of this hence in his submissions to this Court he conceded that only one ground of appeal was before the Court i.e. the scope of Order 22 Rule 2 of the Civil Procedure Rules of Western Nigeria. He submitted that Order 22 Rule 2 should not be resorted to unless Rule 3 thereof was read together with it. Neither the trial court nor the Federal Court of Appeal he said, did this. His references to Section 31 of the Land Use Act and Sections 33, 40( 1) (a) and (b), 236, 276 of the Constitution of the Federal Republic of NIGERIA, 1979, are to my mind irrelevant to the main issue to be decided in this appeal. On the statute of limitations, Mr Fasusi contended that the appellants’ action was not statute-barred because Order 22 Rule 3 of the Civil Procedure Rules of Western Nigeria was not followed. He also submitted that even if the action was statute-barred this Court should mitigate its effect if it would cause hardship and injustice to the appellants. We did not call on learned counsel to the respondent to reply.

 

It seems to me to be beyond any question that the main point to be decided in this appeal is the proper meaning and scope of Order 22 rules 2 and 3 of the High Court Civil Procedure Rules of Western Nigeria and whether they were properly construed by both the High Court and the Court of Appeal. The Rules provide as follows.-

“1.     No demurrer shall be allowed

  1. Any party shall be entitled to raise in his pleadings any point of law and any points so raised shall be disposed of by the Judge who tries the case at or after the trial provided that by consent of the parties or by order of the Court or a Judge on the application of either party the same may be set down for hearing and disposed of at any time before the trial (emphasis mine)
  2. if in the opinion of the Court or a Judge the decision of such point of law substantially disposes of the whole action or of any distinct cause of action, ground for defence, set off, counter-claim or reply therein, the Court or Judge may thereupon dismiss the action or make such other order therein as may be just” (emphasis mine) .

 

I should add immediately that the Federal Court of Appeal mentioned ‘DEMURRER’ (one of the complaints of Mr Fasusi) by way of distinction particularly as the learned counsel [seemed] to be relying on cases which dealt with ‘Demurrer’, a totally different procedure from Order 22 Rule 2 under consideration. As was rightly pointed out by their Lordships of the Federal Court of Appeal, in the case of the Demurrer (which is still applicable in the former Northern and Eastern Nigeria i.e. in the Northern and Eastern States), the preliminary point of law can be taken after the receipt of the statement of claim and before any defence is filed. The party in such a case relies on point of law even if the issues of fact m the statement of claim are conceded. If he fails, an order would be made by the Court ordering the filing of a statement of defence and the suit would proceed to trial. Order 22 rule 1 of the Civil Procedure Rules of Western Nigeria abolished this procedure and substituted Order 22 rule 2 under which a preliminary point of law could be raised after both the statement of claim and defence have been filed. Such an application may lead to the dismissal of the suit as happened in the instant case. If on the other hand it fails, the action will proceed to trial issues having already been joined in the pleadings.

 

Learned counsel for the appellants on the scope and meaning of Order 22 rule 2 of the Civil Procedure Rules of Western Nigeria submitted that once pleadings have been ordered and completed and issues joined, the merits of the case must be gone into by hearing evidence. In other words, in the instant case, where pleadings had been exchanged between the parties and issues joined it is the contention of the appellants’ counsel that evidence should have been taken by the learned trial judge and the various issues of law raised in the pleadings considered before the preliminary objection was disposed of.

 

For this contention Mr Fasusi relied on three cases-

(i)      Odive v. Obor (1974) 2 S.C. 23 at 31,

(ii)     Gold Coast and Ashanti Electric Power Development Corporation v. A.G. Gold Coast 3. W.A.C.A. 215 at 217,

(iii)    Glover as Head of Oshodi Chieftaincy Family and another v. Officer Administering the Government of NIGERIA 19 N.L.R. 45. at 47. (10th October, 1949).

 

In the Odive ,case learned counsel for the appellants relied on that portion of the judgment in which this Court observed:

“We think that the learned trial judge was clearly in the wrong when he decided to uphold the preliminary objection of counsel for the defendants at the particular stage in the proceedings when the Statement of Defence had already been filed and the issues joined between the parties. The learned trial judge should have pointed out to counsel for the defendants that the preliminary objection should have been made after the delivery to him of the Statement of Claim and before filing his Statement of Defence”.

 

I agree with the learned Justices of the Court of Appeal that this case can be of no assistance to Mr Fasusi. The substantive case arose in the High Court of East Central State where the Demurrer procedure was still applicable. All that this Court did was in fact to hold that the learned trial Judge in that case erred in law in upholding the preliminary objection without hearing evidence when pleadings had been filed by both parties, exchanged, and issues joined-the preliminary objection would have been properly taken without hearing evidence if taken just after the Statement of Claim was filed and served on the Defence. Nor do I think that the A.G. Gold Coast and Ashanti Electric Case and the Glover v. Officer Administering the Government of Nigeria case (supra) are of any assistance to the appellants. In both cases objections were based on Demurrer under Order 19 of the Gold Coast Supreme Court Ordinance and under Order 28 Rule 1 of the Supreme Court (Civil Procedure) Rules. Perhaps to bring home to the appellants the difference between this situation and that envisaged under Order 22 rule 2 of the Civil Procedure Rules of Western Nigeria, it may be necessary to set down Order XXIX of the High Court Rules of Eastern Nigeria, Cap. 61, Laws of Eastern Nigeria, 1963, Vol. IV. Headed

” Dismissal of Suit on Grounds of Law” its three sections read as follows-

“1.    Where a defendant conceives that he has a good legal or equitable defence to the suit, so that even if the allegations of the plaintiff were admitted or established, yet the plaintiff would not be entitled to any decree against the defendant, he may raise this defence by a motion that the suit be dismissed without any answer upon questions of fact being required from him.

  1. For the purposes of such application the defendant shall be taken as admitting the truth of the plaintiffs’ allegations and no evidence respecting such matters of fact, and no discussion of questions of fact, shall be allowed.
  2. The Court, on hearing the application, shall either dismiss the suit or order the defendant to answer the plaintiffs’ allegations of fact, and shall make such order as to costs as shall be just”

 

The Western Nigeria rules as stated earlier have excluded Demurrer. It seems to me that having regard to this, a close look at the wording of Order 22 rule 2 shows that it envisages a situation in which pleadings have been filed by both parties and issues joined. The issues can be disposed of by the trial judge at or after the trial (clearly after hearing evidence). Then the all important proviso is to the effect that before the trial i.e. before evidence is taken, the trial judge may, on the application of one of the parties, set down for hearing as preliminary points, any points of law raised in the said pleadings. This is clearly designed to ensure that suits that can be expeditiously dealt with and disposed of on grounds of law are not carried through a long and perhaps expensive trial.

 

I am also unable to accept the other submission of learned counsel for the appellants that Rules 2 and 3 of Order 22 of the Civil Procedure Rules of Western Nigeria must be read together, or to put it differently, that no resort can be made to Rule 2 until certain conditions under Rule 3–in this case consideration of certain points of law-have been fulfilled. In my view, they can be read together only in the sense that Rule 3 will not apply until any proceedings pursuant to Rule 2 have been completed. Once that is done, it seems to me that Rule 3 vests the Court or the Judge with the discretion, having regard of course to the points of law decided by the Court in the proceedings pursuant to Rule 2, to decide whether such points of law substantially dispose of the whole action and thereupon to dismiss it. This was what the learned trial judge did having decided, pursuant to the application of the respondent, that the claim of the appellants for compensation was statute-barred and their claim for declaration of title of ownership unmaintainable in law, the certificate of title to the pieces of land in issue having been taken by Respondent. The learned trial judge rightly, in my view, observed in his judgment:

“I hold therefore that the whole core of plaintiffs case which is an attack on the acquisition of the land in dispute is not maintainable in law having regard to section 25 of the Public Lands Acquisition Ordinance (since repeatedly re-enacted). And as to the claim that plaintiffs were owners of the land, that is an academic question, since whatever rights they might have had (it is not admitted they had any) had been extinguished by the acquisition of 1931 and the resulting certificate of title issued in 1937”

 

Although as pointed out earlier in this judgment learned counsel for the appellants did not, at least before the Court of Appeal, attack the grounds on which the learned trial judge arrived at his decision on the preliminary points of law raised by the respondent, one may touch them briefly if only to show that appellants have no cause to complain about the decisions of the two lower courts.

 

As regards the claim for compensation by the appellants, there can be no argument that it was statute-barred. The appellants clearly slept on  their rights, if any. It is conceded by the appellants that the lands in issue were included in Acquisition ‘F’ vide Government Notice of 8th August, 1931 published in the Nigeria Gazette No. 60 of 5th November, 1931.

 

Pursuant to the Acquisition Notice, a certificate of title was issued on the 28th June, 1937 in favour of the Government of Nigeria and in respect of the same pieces of land. Mr Fasusi in the course of argument in this Court conceded that the cause of action arose when the appellants knew of the acquisition of the lands in issue and this he said was in 1940. Time begins to run when the cause of action arises (See T.]. Solomon v. African Steamship Company Ltd. 9 N.L.R. 99. Also Board of Trade v. Cayner, Irvine and Co. Ltd. [1927] A.C. 610). Time therefore, begins to run when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed. Cooke v. Gill 1873 L.R. 8 C.P. 107, 110. (See Letang v. Cooper (1965) I.Q.B. 222,242). If one wished to be charitable, one could say that the cause of action in this suit arose in 1945 and time began to run then. The appellants could have had no doubts then about the acquisition of the lands they claim as theirs after the soldiers engaged in the Hitleric war and who were allegedly settled on the lands were removed. The lands were neither returned nor was compensation paid to them. In fact, in their claim they had stated that “Government offices in Ibadan are replete with both several and joint petitions from the claimants from the early 1930s calling for payment of compensation without success” (See Are vol. Attorney-General of Western Nigeria 1958 W.R.N.L.R. 126). Yet this action was not filed until 1974. At the time of the acquisition of the lands in issue in 1931 the limitation law applicable in the old Western Region was the Statute of Limitation, 1623, a statute of general application in force in England on 1st January, 1900. Under that statute, when the Crown takes land compulsorily without paying compensation for it, the period of limitation for a claim based on the taking being a land claim is twenty years (See Complete Statutes of England Vol. 10. at pp. 429-432). The claim is therefore clearly statute-barred. The appellants did not within time comply with Section 10 of .the Public Lands Acquisition Ordinance Cap.88, Laws of NIGERIA, Vol. 1 1923 (re-enacted by all subsequent public acquisition law – see Section 10 of the Public Lands Acquisition Law Cap. 167 Laws of the Federation of Nigeria, 1958). This provides for issues to be settled by the High Court having jurisdiction in the area where the land acquired is situate if, within 6 weeks after a notice of acquisition, no claims for compensation have been made by owners or alleged owners of the lands acquired, or where claims have been made, no agreement has been reached between such owners of the lands and the Government. But Mr Fasusi in his argument before this Court submitted that the limitation law applicable to the acquisition of the lands in issue was the Limitation Law, Cap.64 Laws of Western Region of Nigeria, 1959. Even if this was conceded, it will not assist the appellants. Section 6(2) of the Limitation Law 1964, provides for a limitation period of 12 years from the time that the cause of action arose.

 

Whether the cause of action arose in 1940 or 1945 the appellants were totally out since they filed their action in 1974.

 

The other matter that needs consideration is Mr Fasusi’s plea that this Court should be just and mitigate whatever hardship may befall the appellants as a result of their action being statute barred. He cited no relevant authority to support such a dispensation and there is nothing in the statute of Limitation 1623, or the Limitation Law, 1964, to enable this Court exercise such powers. The only authority cited in support of this submission by learned counsel for the appellants, Re Urban Group Reserve 10 N.L.R. 24 at 26 is totally irrelevant to this issue. The case merely dealt with the powers of the Reserve Settlement Officer under the Forestry Ordinance and the manner in which he sought to settle the claims of individual claimants before him. There was no issue of limitation of rights of action. In the case of one Mr. George where there was a danger of no adjudication in respect of a portion of the reserve in which he claimed rights, the Court held that the restrictions he may suffer may be mitigated.-

“but only under circumstances which will apparently be left to the Government to control.”

 

Even if there had been powers to offer such mitigation, it would still have become necessary to determine where the justice of this action lies now as between the appellants and the Government of Oyo State. This is with reference to the fact that the lands in issue were acquired in 1931 and now embrace, as contained in the appellants’ statement of claim.

“Agodi; and Iwo Road; G.R.A., the Governors Lodge, Agodi. The Local Government Service Board; the Second Army Division Headquarters Agodi; the two Police Stations at Agodi; W.N.B.S W.N.T.V. Agodl; the N.A. Reading Room; the Prison, the Muslim praying ground; E.C.N. Agodi; the I.D.H.”

 

The last point due for consideration is appellants’ attack on the acquisition of the lands in issue. The appellants claim that the preliminary notices of acquisition were not served on them, that the grant was made by a Bale of Ibadan who has no authority or right to make such a grant. The appellants also claim a declaration that they are the true owners of the land. But as stated earlier on, a certificate of title had been taken in 1937 by the Government of NIGERIA and Section 25 of the Public Lands Acquisition Ordinance of 1923 which has also been constantly re-enacted in all subsequent Public Lands Acquisition Acts, ensures that once a certificate of title is obtained it cannot be defeated. For instance, section 25 of the Public Lands Acquisition Act, Cap. 167. Laws of the Federation of Nigeria, 1958, provides as follows:

“The Minister may at any time after the expiration of six weeks from the date of the service and publication of the notice mentioned in Section 5 apply ex parte by summons to the High Court for a certificate of title to the whole or any part of the lands described in such notice and upon such application the court shall, upon proof of the service and publication of the said notice grant a certificate of title as in Form D in the Schedule or to the like effect to the whole of the lands described in such notice or to that part thereof in respect of which the application is made, which certificate shall not be questioned or defeasible by reason of any irregularity or error or defect in the notice or want of notice or of any other irregularity, error or defect in the proceedings previous to the obtaining of such certificate” (emphasis mine).

 

In November, 1969, the defunct Western State Court of Appeal had to construe the meaning of section 25 of the Public Lands Acquisition Ordinance (Cap. 88) 1923 (similar to the provision reproduced above) in respect of an acquisition of land in Ibadan in 1931 over which the Certificate of Title was also taken in 1937. Coincidentally, one of the grounds of appeal before that Court was that;

“(5)   The learned trial judge misdirected himself in law and on the facts in holding that the plaintiffs have themselves to blame for not putting up their claim when Notice of Acquisition was published.

 

Particulars of Misdirection.

There is no evidence that the plaintiffs or their Predecessors in title were served with Notice of Acquisition as required by law”.

 

The Western State Court of Appeal (Oyemade, l.A. Eso, l.A. (as he then was) and Delumo, J.A. agreed with the decision of the learned trial Judge that in view of Section 25 of the Ordinance with regards to the Certificate of title, the title of the Government in the case could no longer be questioned. See lames Fakorede and others v. Attorney General Western State (1969) 1 N.M.L.R. 188.

 

For the above stated reasons, this appeal, notwithstanding the dogged determination with which learned counsel for the appellants has pursued it, in my view, lacks substance and ought to be dismissed. It is hereby dismissed. The judgment of the Federal Court of Appeal, Ibadan dated 19th January, 1979 is hereby affirmed. There will be costs against the appellants which I assess at 300.

 

 

SOWEMIMO, J.S.C.

I have had the privilege in having a preview of the judgment in draft just delivered by my learned brother Nnamani, J .S.C. and I agree with the judgment.

 

The brief filed by the appellant before us seems to have forgotten what happened in the High Court. An application was made by the respondent under Order 22 Rule 2 of the High Court (Civil Procedure) Rules (of the then Western Region High Court) requesting for an order raising preliminary objections that the case was not maintainable in law for reasons set in the application dated 22nd day of June, 1975. The respondent did not raise any objection to the hearing of the applicant, and, the learned trial judge, Olu Ayoola J. , (as he then was) held that the claims were statute barred. The respondent did not appeal before us against his order, but suggested that for some reasons not based on any legal principle, the case should have been heard on the merits. The short answer is that this view is totally misconceived.

 

I will dismiss this appeal and uphold the judgments of the courts below.

 

I will award N300 costs against the appellant in favour of the respondent.

 

 

KAYODE ESO, J.S.C.

I agree with the judgment just read by my learned brother Nnamani, J.S.C. I will adopt his reasoning in dismissing the appeal with costs as already assessed in the aforesaid judgment.

 

 

ANIAGOLU, J .S.C.:

I have been privileged to read in draft the judgment just delivered by my learned brother, Nnamani, J.S.C., and I agree with his reasoning and conclusion. I agree that the majority judgment of the Federal Court of Appeal, which in turn upheld the dismissal judgment of the High Court, should be upheld.

 

I desire, if I may, to make a little commitment on the minority judgment (Akinkugbe, J.C.A.) if only, by it, to emphasize the correctness of the majority judgment and, with much respect to Akinkugbe, J.C.A., to identify specifically the error which had afflicted his minority judgment.

 

The gravamen of his trend of reasoning is to be found at pages 39 to 40 of the record of proceedings. Referring to the Supreme Court decision in the East-Central State case of Ddive v. Dbor and Another [1974] All N.L.R. 436, he stated as follows:

“It is a Supreme Court decision. It is a case on appeal from the former East Central State. It has two relevant passages, and the 1st reads:

“We think that the learned trial judge was clearly in the wrong when he decided to uphold the preliminary [objection of counsel for the defendants at the particular] stage in the proceedings when the Statement of Defence had already been filed and the issues joined between the parties. The learned trial judge should have pointed out to counsel for the defendants that the preliminary objection should have been made after the delivery to him of the Statement of Claim and before filing his Statement of Defence.”

 

The above cannot be said to be applicable to the facts of the above case. It relies on the procedure by way of Demurrer. Order 22/2 of the High Court Rules of the former Western State has done away with Demurrer. At the time Demurrer was said to be applicable in the Civil Procedure of the ten East-Central State High Court Rules. But what does the second passage say?

 

It reads:

” Another important point in this appeal is that, once issues had been joined between the parties including an allegation by the 1st defendant that the marriage between him and 2nd Defendant has been made under customary law, it was wrong to entertain a preliminary objection without any further evidence on the merits.”

 

The above shows that it is immaterial whether the objection is by demurrer or under Order 22/2 of the Rules of High Court of the former Western State. Once issues have been joined evidence is to be taken.

 

But the Supreme Court was interpreting the wordings of Rules 1, 2 and 3 of Order XXIX of the Eastern Nigeria High Court Rules, Cap. 61 Laws of Eastern Nigeria 1963, Vol. W-Rules which, as clearly shown and set out in the judgment of my learned brother, Nnamani, J .S.C. are different, in substance and procedure, from those of Rules 2 and 3 of Order 22 of the Western Nigeria High Court Civil Procedure Rules where the procedure of “demurrer” had been specifically removed.

 

His Lordship of the minority judgment appeared to have taken it as an inflexible rule that “once issues have been joined evidence is to be taken”.

 

I am unable to see the justification for His Lordship’s assertion that anything in ODWE v. OBOR shows that it is immaterial whether an objection is by demurrer or under Order 22 Rule 2 of the Western State High Court Rules. The Supreme Court, certainly did not say so in the judgment. His Lordship must have been carried away by the general disapproval of the procedure of trying preliminary issues voiced by Lord Evershed, M.R. and Lord Harman, L.J. in WINDSOR REFRIGERATOR CO. LTD v. BRANCH NOMINEES LTD. [1961] 1 All E.R. 227 at 283 and quoted by him.

 

The facts and circumstances of that case are different from those of the present appeal where the single issue of the effluxion of time based upon statutory limitation of actions (Statute of Limitations, 1623) would dispose of the whole action however otherwise meritorious in equity, if they were allowed to be tried, the facts adduced by the plaintiffs would be. The two law lords could not, by their pronouncements quoted in the minority judgment, be understood, in all fairness to them, to be advocating that the Courts should ride roughshod of statutory periods of limitations by reason only of otherwise arguable facts having been pleaded on a joinder of issues. What is there to try when the Statute has provided that the period allowed for bringing an action in which those facts which should have been in issue, has expired? Absolutely nothing. Rule 2 of Order 22 allows the Judge to set down a preliminary issue for hearing before the main trial and Rule 3 permits the Judge, if his decision on a point of law or his decision on any point or points raised in the pleadings substantially disposes of the whole action or any distinct cause of action, ground for defence, set-off, counter claim or reply, to dismiss the action or make such other order as may be just.

 

His Lordship of the minority judgment stated thus, at page 41 of the record:

“In the case under consideration the plaintiffs pleaded at paras. 1, 2, 3,7 and 8 the traditional history of how the land was acquired by their ancestor, the defendant neither deny (sic) nor admit (sic) the facts in his para. 1 of the Statement of Defence but put the plaintiffs to the strict proof of same, how then can such a matter be disposed of as a point of law under Order 22/2 of the High Court Rules of the former Western State which of course is still that of Oyo State?”

 

The simple answer to this is that the plaintiffs cannot be heard to set up those pleadings because the action is statute-barred, which is a point disposing of the whole action however enamoured one may be with the lustre of the historical account. The term “cause of action”, as has been stated in Read v. Brown (1888) 22 Q.B.D. 128 at 131 per Lord Esher, M. R., denotes 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.

 

His Lordship of the minority judgment was of the view that the first part of the Claim in the Writ, namely, A DECLARATION OF TITLE, could have been tried in any event and should not have been allowed to be dealt with on a preliminary issue. But, the cause of action had arisen in 1931 when Government acquired the land. By the acquisition of the land the rightful owner was entitled to payment of compensation. It was essential for the owner to prove his ownership in order to be entitled to compensation. Therefore, whether the plaintiffs claimed for a declaration of title of ownership in the ordinary form or asserted their ownership in the form provided for, under the Public Lands Acquisition Ordinance, the proof of ownership was a necessary step for their establishment of entitlement to receipt of compensation. And, therefore, whether the cause of action had arisen in 1931, or (if one were to follow the generosity of my learned brother Nnamani, J.S.C.) in 1945, in either case, the action, including one for a declaration of title as a preliminary step for establishing a claim for compensation, had become statute-barred.

 

His Lordship of the minority judgment, in his conclusion of his judgment cited Dr Esin Anwana Esin v. Atang Edem Abasi [1963] I All N. L. R. 407-a judgment which he erroneously attributed to the Supreme Court but which in fact, was a decision of the Privy Council (Evershed, Guest and Upjohn, L.JJ). He quoted the third ratio decidendi in the head note which stated that-

“(3)   The summary procedure by summons provided in the Public Lands Acquisition Ordinance does not preclude the determination of a dispute on ownership in an action begun by writ of summons: that Ordinance did not intend that summary procedure to be exclusive and to oust the normal procedure.”

and came to the conclusion that by reason thereof the plaintiffs’ claim for a declaration of title was maintainable because the procedure of originating summons provided for, by the Public Lands Acquisition Ordinance did not preclude the normal procedure of initiating proceedings by writ of summons.

 

With the greatest respect to His Lordship, this is totally irrelevant. That the procedure for initiating proceedings is either by Originating Summons or by a Writ of Summons has nothing to do with whether the action brought (by Originating Summons or Writ of Summons) is statute-barred.

 

The question remains: Was the action statute-barred? That, I answer in the affirmative.

 

As I had earlier stated, it would not have been necessary for me in this judgment to go beyond agreeing with the judgment first read by my learned brother, Nnamani, J.S.C., supporting the majority judgment of the Federal Court of Appeal, but I consider that as there was a dissenting judgment, the minority judgment deserved to be given special attention and shown to be clearly erroneous on its own line of reasoning.

 

I would dismiss, and hereby dismiss, this appeal and affirm the majority judgment of the Federal Court of Appeal, with costs to the respondent which I assess at N300.00

 

 

UWAIS, J.S.C.

I have had the advantage of reading in draft the judgment read by my learned brother Nnamani, J .S.C. I agree with it and for the reasons given by him I will dismiss the appeal with order as to costs.

 

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