Bolaji Babatunde Akinkunmi & Anor V. Alhaji Rasaq Olanrewaju Sadiq (2000)

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GALADIMA, J.C.A.

The Respondent as plaintiff took out a writ of summons in the High Court Lagos State claiming as follows:

“1. A declaration that the property in dispute comprising a shop and two rooms at 25, Alli Street, Lagos belongs to the plaintiff Alhaji Rasaq Olanrewaju under Yoruba Native law and Custom.

2. An order of perpetual injunction restraining the 1st defendant from collecting rents in any form or manner in respect of the shop and two rooms at 25 Alli Street, Lagos.
3. Possession of the shop and two rooms,
4. Mesne profit at the rate of N500 for the shop and N250.00 for each room per month respectively from 1st June, 1990 until judgment.”

On 4/3/98, plaintiff’s writ was amended praying the court to dismiss the 1st defendant’s action as being statute-barred. In the same vein on 22/1/98, the appellant as the 1st defendant by a summons on notice brought an application at the lower court under Order 23 rules 2 and 3 of the High Court of Lagos State (Civil Procedure) Rules, 1994, praying for the determination of preliminary issues of law and mixed facts and law raised in paragraphs 10- 20 in the statement of claim and paragraphs 2 – 5 of the reply to the statement of defence of the appellant and paragraphs 26 – 29 of the reply to the statement of defence; and whether he has disclosed good defence in law to all claims and causes of action pleaded by the plaintiff in his writ of summons and statement of claim.

Other preliminary issue presented for determination by the appellant was whether the action of the respondent was statute-barred pursuant to section 16(2) (a) and 33(1) (2) Limitation Law, Cap. 118, Laws of Lagos State (supra) having regard to the following facts:

(1) that Madam Nimota Ajiwun, the predecessor-in-title who was in possession died on 28/6/1969 and

(2) that the 1st defendant herein has since then for a period of over 27 years been in possession of the property in dispute consisting of one shop and two rooms at No.25, Alli Street, Lagos, exercising maximum acts of ownership including putting in and ejecting tenants there from, the 2nd defendant being his tenant presently in occupation without let or hindrance or disturbance of any kind.

The learned trial Judge took arguments from the parties and in his ruling dismissed the appellant’s action as being statute-barred under sections 16(2) (a) 19(1),21,33(1) (2) of Limitation Laws Cap. 118 of Laws of Lagos State vol.5 1994.

Dissatisfied, the Appellant appealed to this Court on three grounds.

Learned Counsel on behalf of the parties filed and exchanged briefs of argument. In the Appellant’s brief two issues were formulated for the determination of this court as follows:

“(1) Whether for the operation of Limitation Law probate action instituted in 1974 and concluded in 1995 between same parties can have effect on them in a claim for declaration, perpetual injunction, possession and mesne profit instituted in 1996 by one of the said same parties against the other?.

(2) Whether for the operation of limitation in trial of preliminary point of law raised in the pleading the defendant who pleaded that, he is the owner of the land in dispute and has been in possession for over 20 years need to establish again to be in adverse possession against plaintiff just claiming to be entitled to the land in dispute under Yoruba Law and Custom?.”

The respondent filed one single issue for determination thus:

“Whether the cause of action in the suit herein accrued on 29/5/95 when the Court of Appeal in suit No.CA/L/228/93 finally determined that the Will of the late Madam Nimota Ajiwun in which she devised the 2 rooms and a shop, the property in dispute to the defendant was void, or in 1973 when Nimota Ajiwun died?.”

Before I go into the issues formulated by the parties, I must comment briefly on the manner the briefs were written, particularly that of the appellant. The Supreme Court and indeed this court all have cause to emphasise the importance of good brief writing. There is need to make a brief legible, readable in appearance and attractive in form and presentation, Above all it should not be unnecessarily lengthy and repetitive, In appellant’s brief, grounds of law are muddled up with grounds of fact. Facts have been included in the brief which have no bearing on the issues for determination. In arguing the first issue, the learned Counsel has gone extra mile to reproduce all the notice and grounds of appeal, and their particulars and the statement of claim and defence and reply to the statement of defence, What you find here is real confusion and what our learned author of manual of brief writing, Phillip Nnaemeka-Agu, J.S.C. would refer to as “unsettled mind” in the course of drafting of a brief. What I have here are semblance of a brief.

The learned Counsel has not grasped the rudiments of brief writing, He was perhaps grappling with the art when he was much younger at the Bar. He must have improved by now! My wise counsel to both counsels is that they should be ready to learn from their senior colleagues the intricacies of brief writing. They should be ready to do so, if they had not done so, See Alice K. Okesuji v. F.A Lawal CA/L/249/84 (unreported) of 3/9/1985 (1986) 2 NWLR (Pt. 22) 417 and recent exhortations of the courts in Universal Vulcanizing (Nig,) Ltd, v. Ijesha Trading & Transport Co, Ltd, (1992) 9 NWLR (Pt.266) 388; Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) 643; Elendu v. Ekwoaba (1998) 12 NWLR (Pt.578) 320, Raimi Tumo v. Sakibu Murana (2000) 12 NWLR (Pt.681) p, 370; Francis Ejiogu v. Nide CA/L/484/99 (unreported) of 23/10/2000.

Now coming to the issues for determination. The learned Counsel for the Appellant argued grounds ‘A’ and ‘B’ together in issue No. 1. He did not argue the issue as formulated. It is the issue that is argued on appeal not the grounds of appeal. When counsel argues an appeal he should rely on the issues formulated rather than the grounds of appeal because it is on the basis of the issues that the parties found their contentions: See Innocent Ozims v. Anoruo (1999) 3 NWLR (Pt.81) p. 571 at 579, Bamgboye v. Olanrewaju (1991) 4 NWLR (Pt.184) 132 at p. 152; and Macaulay v. NAL Merchant Bank Ltd, (1990) 4 NWLR (Pt.144) 283 at 321. Consequently, I must discountenance the arguments as proffered based on the grounds of appeal.

With respect to the second issue formulated by the appellant, I find that lone issue of the respondent aptly covers this ground and I will be so guided by it. This ground is crucial to this appeal. It is the contention of the respondent’s counsel that the appellant was not in any adverse possession of the two rooms and a shop the subject-matter in this suit between 1974 and 29/5/95, It is also submitted that the cause of action accrued on 29/5/95 when the Court of Appeal in suit No.CA/L/288/93 declared the will of the late Madam Nimota Ajiwun and the devise of the two rooms and a shop void.

In determining this issue, I need to reproduce paragraphs 16-19 of the Respondent’s statement of claim and paragraphs 2-5 of the reply to the statement of defence.

First, paragraphs 16 – 19 read thus:

Paragraph 16

“Nimota Ajiwun died childless on the 28th September, 1973, She had nonetheless on the 28th June, 1969 at Lagos executed a will by which she proposed to devise the property in dispute i.e. 25, Alli Street, Lagos to her nephew Bolaji Akinkunmi the 1st defendant in this suit”.

Paragraph 17

“On the lodgment of the said will at the probate registry of the Lagos High Court by the 1st defendant, the plaintiff and his mother Riyanatu entered a caveat against the admission of same to probate in Solemn Form.” See page 4 of the record.

Paragraph 18

“In the resultant probate action of suit No.LD/1030/74 instituted by the 1st defendant against the plaintiff and his mother (now deceased) the High Court of Lagos in the judgment delivered on the 26th February, 1993 held that the will of Madam Nimota Ajiwun was void and accordingly dismissed the suit. The plaintiff will rely on the judgment at the trial of this suit.”

Paragraph 19

“Dissatisfied with the said judgment the plaintiff (the defendant herein) filed an appeal at the Court of Appeal vide No.CA/L/288/93. In the final determination of the appeal, the court on the 29th May, 1995 upheld the decision of the Lagos High Court that the will of the late Madam Nimota Ajiwun is void and in so far as it related to 25, Alli Street, Lagos even though the court held further that the will could be admitted to probate as it affects other properties excluding 25, Alli Street, Lagos.” – See Page 4 of the record Paragraph 2 of the reply to the defence of the 1st defendant reads as follows:

Paragraph 2

“The plaintiff avers that in 1974 the 1st defendant in suit No.LD/1030/74: Bolaji Babatunde Akinkunmi v. Alhaji Rasaq O. Sadiq & anor claimed against the plaintiff herein and another that he was the sole executor and beneficiary in the will of Madam Nimota Ajiwun includes the 2 rooms and a shop at No. 25, Alli Street, Lagos, the subject-matter of this case.” See 27 of the record.

Paragraph 3

“The plaintiff avers that on the 26th February, 1993, the High Court Lagos dismissed the said action in suit No.LD/1030/74”.

Paragraph 4

“The 1st defendant herein filed an appeal against the said judgment and the Court of Appeal in suit No. CA/L/288/93 dismissed the appeal in favour of the plaintiff herein on the 29th May, 1995.” See page 27 of the record.

Paragraph 5

“the issue and to the ownership of the said 2 rooms and one shop and the issue as to whom probate of the said will of Madam Nimota Ajiwun was to be granted raged on between 1974 and 1995.” See page 27 of the record.”

What has struck my mind when I perused these paragraphs above is that the 1st defendant who is the appellant now was constantly claiming the property in dispute from 1974 to 1995 when in that year this court in Appeal No. CA/L/288/93 gave judgment that the will of the late Madam Nimota Ajiwun in which she devised the rooms and a shop; the subject-matter of the suit herein was void. One can see the frustration faced by the respondent between this period. He could not have instituted an action and indeed the suit herein between 1974 and 1995 against the appellant, simply because facts which are necessary and which he needed to rely to prove, if traversed to support his right to judgment had not occurred. Between this period the High Court of Lagos State and this Court of Appeal were still adjudicating on the validity of the will of the said late Madam Nimota Ajiwun and the devise of the two rooms and the shop.

My respectful view is that the facts which the respondent had to prove had not occurred between this period. These facts emerged in 1995; when the late Madam Nimota Ajiwun and the devise of the two rooms and a shop were declared void; See Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1 SC.

The general principle of law is that where the law provides for the bringing of an action within a prescribed period in respect of a cause of action, accruing to the plaintiff proceedings shall not be brought after the period prescribed by the statute. An action which is not brought within the prescribed period offends the provision of the law and does not give rise to a cause of action: See FBN Plc v. Associated Motors Co. Ltd. (1998) 10 NWLR (Pt.570) 441 at 480; Obiefuna v. Okoye (1961) 1 SCNLR 144.

What a cause of action is, has been defined as a bundle of aggregate of facts which the law will recognise as giving the plaintiff a substantive right to make a claim against the relief or remedy being sought.

When every fact which is material to be proved to entitle the plaintiff to succeed or all those things necessary to give a right to a relief in law, equity have occurred, a cause of action is said to have accrued to the plaintiff:

To ascertain when an action is statute-barred the following enquiries must be made:

(a) Seek to know when the cause of action accrued to the plaintiff.

(b) Check from the writ of summons when the suit was instituted and; then

(c) Ascertain from the statute in question what period of time it prescribed to bring the action.

Section 16(2) of the Lagos State Limitation Law 1994, provides:

“The following provisions shall apply to an action by a person to recover land –

(a) Subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action occurred to the person bringing it or, if it first accrued to some person through whom he claims, to that person.”

I reiterate my earlier view that the cause of action occurred in 1995 when the suit brought by the Respondent could be effectively prosecuted by the respondent. This action having been filed on 1/4/96, I am of the opinion that the learned trial Judge was perfectly right to rule that the action was not statute-barred.

The learned Counsel for the appellant has contended that the appellant has been in exclusive possession on the premises in dispute since the death of Nimota Ajiwun on 28/9/1973.

The Appellant also claimed that he had been in adverse possession of the premises in dispute. I do not think so. Section 19 (1) of Limitation Law, Cap. 118, (supra) reads as follows:

“19(1). No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.”

“Adverse possession” is defined in Jowitt’s Dictionary of English Law (2nd Edition p.60) as an occupation of realty in-consistent with the right of the true owner. The Appellant in suit No. LD/1030/74 and appeal No. CA/L/228/93 claimed to be the true owner of the premises in dispute. He cannot at the same time claim to be in adverse possession of it. I agree with the learned trial Judge that the appellant was not in adverse possession of the property in dispute between 1974 and 1995.

It is for the above reasons I therefore conclude that this appeal lacks merit. It is accordingly dismissed with N3000 costs in favour of the Respondent.

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Other Citations: (2000)LCN/0900(CA)