Brig Gen. O.b. Olorunkunle (Rtd.) & Anor. V. Alhaji Abayomi Shakirudeen Adigun & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, JCA, (Delivering the Leading Judgment)

This judgment is in respect of an interlocutory appeal from the decision of the Lagos State High Court in suit No. LD/336/2006 delivered on 30th June, 2009 by Hon. Justice T. Ojikutu-Oshodi wherein the learned trial Judge refused to consider the issues raised in the application of the Applicants but rather directed that the issues be heard and determined together with the substantive case in view of the stage of the proceedings. A brief facts of the case are as stated below.

By a writ of summons dated 3rd March, 2006 and an amended statement of claim dated 7th December, 2007, the 1st to 17th Respondents, as Claimants at the court below, filed the action giving birth to this appeal and sought, among others, the following relief:

“A DECLARATION that the purported compulsory acquisition of the Claimant’s land at Addo Town, Eti Osa Local Government by the Lagos State Government as published in the Lagos State Government Notice No. 36 in the official gazette No. 20 vol. 26 of 13th May, 1993 and official gazette No. 11 vol. 30 of 1 May, 1997 without notice of acquisition and compensation is illegal, null and void”.

The Appellants who were the 3rd and 4th Defendants responded by fifing their statement of defence and other processes. The matter went through pre-trial proceedings and the pre-trial Judge recommended it for trial sequel to which it was assigned to the learned trial Judge herein. The Respondents listed four witnesses to be called while the Appellants listed one witness. The trial commenced and the Respondents called three of their four witnesses. At that stage the Appellants filed a motion on notice for amendment of their statement of defence and raised, for the first time that the suit was statute barred. The 1st to 17th Respondents filed their counter-affidavit against the motion contending that the suit was not statute barred. In a considered Ruling the learned trial Judge held as follows:-

“Obviously now that trial has commenced, the proper approach that better serves the overriding objective of the 2004 Rules is for the Claimants to close their case and for the Defendants to a/so adduce their own evidence including the issue of statute of limitation after which they would then adjourn for Judgment to determine all issues touching title to the land in dispute as well as the statute of limitation. The forensic value and advantage of this approach is that it allows this part heard stage of proceedings to deal in a just, efficient, speedy and economic manner with all the composite issues in dispute with finality. It is also economical because in having dealt with all the issues at one time the parties if they choose to go on appeal can take all the issues under one appeal rather than having a separate appeal on issue of limitation law and a separate appeal on issue of title to the land. Consequently, and on the foregoing the motion on notice dated 6/02/2009 filed by the 3rd and 4th Defendants/Applicants fails, it is refused and is hereby dismissed”.

Dissatisfied with the Ruling of the learned trial Judge, the Appellants filed their notice of appeal on 13th July, 2009 which said notice contains three grounds of appeal. The learned counsel for the Appellants, Taiwo Kupolati Esq., has distilled two issues for the determination of this appeal, namely:-

“1. Whether the trial court did not err when it failed or refused to determine one way or the other the point of law raised by the Appellants pertaining to the Claimants/Respondents’ action being statute barred under Section 16(2)(a) and 21 of the Limitation Law of Lagos State and pursuant to Order 22 Rule 2(1) and (2) of the Lagos State (Civil Procedure) Rules 2004. (Ground 1 of the Notice of Appeal).

2. Whether the Claimants/Respondents’ action is statute barred. (Ground 2 and 3 of the Notice of Appeal)”.

In the brief of the 1st to 17th Respondents settled by K. S. Lawal Esq., of counsel, it is stated on page 5, paragraph 3.1 as follows:

“The 1st to 17th Respondents adopt the two issues formulated by the Appellants”.

The appeal shall therefore be determined based on these two issues. Before I proceed to resolve these issues, I wish to observe that the learned counsel for the Appellants has devoted paragraphs 4.6 on page 3 of his brief to paragraph 4.12 in page 5 of the said brief to canvas argument on the issue that the learned trial Judge suo motu raised the issue of the effect of order 1, Rule 1(2) of the High court of Lagos state (Civil Procedure Rules 2004) on the proceedings. But looking at the three grounds of appeal filed by the Appellants as contained in the Notice of Appeal, there is no ground which the argument on the issue of the Judge raising the point suo motu can be anchored. As there is no such ground of appeal, there is also no issue formulated which the argument can be based. The argument only surfaces from the blues and as it is, it lacks the ground or an issue to rest its feet. It is trite that all arguments in an appeal must necessarily flow from an issue for determination which must also be formulated from a competent ground or grounds of appeal. Where an argument is not related to an issue before the court which cannot be traced to any ground of appeal, such an argument is incompetent and ought to be discountenanced. See Ideozu v. Ochoma (2006) 4 N.W.L.R. (Pt. 970) 364; Mani v. Sliannono (2006) 4 N.W.L.R. (Pt. 969). That being the case all that argument contained in paragraphs 4.6 to 4.12 on pages 4 – 5 of the Appellants’ brief are hereby discountenanced. And in any case, a court can only be accused of raising an issue or a matter of fact suo motu if the issue or matter of fact did not exist in the litigation. A court cannot be accused of raising an issue or a matter of fact suo motu if the issue or matter of fact exists in the litigation. A Judge by the nature of his adjudicatory functions can draw inferences from stated facts in a case and by such inferences the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. Moreover, where a Judge refers to a piece of legislation or rule of court which assists him to exercise his discretion one way or the other, he cannot be accused of introducing the rule of court suo motu. See Ikenta Best Nig. Ltd. v. Attorney-General Rivers State (2008) 6 N.W.L.R. (Pt.1084) 612 at 642 paragraphs A – C. I shall now consider the remainder of the arguments which relates to the first issue.

It was contended on behalf of the Appellants by their counsel that there is nothing in Order 1 Rule 1(2) of the Lagos State High Court (Civil Procedure) Rules 2004, hereinafter referred to as “the rules” which suggests and abrogation or nullification of Order 22 Rule 2(1) of the said rules. That the enforcement of Order 1 Rule 1(2) is a policy declaration of the object of the Rules to deal with all proceedings coming thereunder justly, efficiently and speedily. It was submitted that it was wrong for the learned trial Judge to rely on Order 1 Rule 1(2) to refuse to consider a point of law raised in the Appellants’ pleading pursuant to Order 22 Rule 2(1) and pertaining to the incompetence of the main action on grounds that it is statute-barred.

Learned counsel further opined that each of the provisions of the Rules is intended to achieve justice if justly, efficiently and speedily enforced and that none of the provisions is intended to be subjugated to or undermined by the other. It was his view that the provision of Order 22 Rule 2(2) of the Rules of the Lagos State High Court is intended to be determined by the court once it is of the opinion that – “the decision on such point of law substantially disposes of the whole proceedings or of any distinct part thereof’. He submitted that rules of court must be wholistically interpreted relying on the case of Olaniyan v. Oyewole (2008) All FWLR (pt.399) 503 and Consortum M.C. v. NEPA (1991) 7 SCNJ 1.

Learned counsel reasoned that whereas Order 22 Rule 2(1) allows a party to raise by his pleadings any point of law and the Judge is duty-bound to dispose of the point so raised “before or at the trial”, the trial court erred in not disposing of the point even when it was raised at the trial. He emphasized that the rules of court must be complied by the court and not to breach same relying on the case of Nnaji v. Chukwu (19s8) 3 N.W.L.R. (pt.81) 184. Also, that the issue raised before the court is that the action is statute barred. Being a weighty issue of law bearing jurisdictional significance, he contends that the lower court ought to have given it a hearing. It is his assertion that the posture taken by the learned trial Judge is a drawback for the 2004 Rules and a setback for the main action itself. He urged this court to resolve this issue against the Appellants.