David Ogunlade Vs Ezekiel Adeleye (1992)

LawGlobal-Hub Lead Judgment Report

OMO, J.S.C.

In Suit No. AC/l3/77 filed at the Ekiti North Grade 1 Customary Court, the plaintiff/respondent claimed from the defendant/appellant

“(a) 56 tins of palm oil at the current value

(b) 1,400 kolanuts at the current value

(c) N28.00

all being the twenty-eight (28) years arrears of Tribute (Isakole) payable to the plaintiff by the defendant as customary tenant of the plaintiff in respect of plaintiffs’ land at Orimo farmland, Aiyedun-Ekiti………. ”

In view of the submissions of defendant/appellant’s counsel before us it is necessary to state that under the heading “claim” at page 1 of the record of proceedings, the following paragraphs follow:

“By the judgment of the Ikole Native Court on 2nd July, 1948 in case No. 113/48 the defendant was ordered to be paying the plaintiff two tins of palm-oil, 50 kolanuts and N1.00 (one naira) annually as Isakole.

The said judgment was confirmed on appeal by the Ekiti Divisional Court and later by the court of the Resident of Ondo Province. However, the defendant has refused till now to pay any Isakole despite repeated demands. The value of the land is N300.00. Plaintiff therefore claims as per summons.”

After hearing the parties the Customary Court, in its judgment dismissed the plaintiffs claim on the grounds that (i) that plaintiff was guilty of undue delay – 29 years, before taking any steps to enforce the judgment it obtained in 1948 against the defendant, and (ii) that the case had been overtaken by the Land Use Act 1978, which vested all lands in the State Government. The plaintiff/respondent was dissatisfied with that judgment, and appealed to the High Court of Ondo State against same.

By its judgment dated 10/12/81, the High Court dismissed the appeal of the plaintiff/respondent on the ground that the claim was statute barred. It considered the issues of delay and the applicability of the Land Use Act 1978. On the first, it held that since the claim was based on the 1948 judgment it was caught by section 4(4) of the Limitation Law, Cap.64 of the Laws of Western Nigeria. On the second issue the court held the view that the Land Use Act 1978, did not deprive the plaintiff of his legal rights which had accrued before that Act came into operation. The plaintiff/respondent, still dissatisfied appeal led to the Court of Appeal.

The Court of Appeal in its judgment agreed with the High Court that the claim was caught by section 4(4) of the Limitation law (supra) but did not share the view of the High Court that the effect of that section is to bar the claim of the plaintiff/respondent for the whole 28 years. On the contrary it held that since the effect of the 1948 judgment was to fix the annual Isakole to be paid by the defendant each year (when it becomes due), each yearly payment is independent of the other, and therefore only the Isakole due for 12 years calculating backwards from 1976 (the 1977 payment not being due when the action was filed) were claimable and enforceable. The court therefore partly allowed the plaintiff/respondents appeal by giving him judgment for arrears of Isakole for the years 1964 to 1976. It also confirmed the decision of the High Court on the effect of the Land Use Act 1978. This time, the defendant appealed to this court against the judgment of the court below. The plaintiff/respondent, however filed on 17/3/88, a notice (as respondent) of his intention to contend that the decision of the Court of Appeal be varied pursuant to the provisions of Order 8 Rule 3 of the Rules of Court of Supreme Court, 1985.

Briefs were filed and exchanged by the parties to this appeal, and oral arguments adduced in expatiation of same. The defendant/appellant (referred to hereafter as “appellant” only) set out only one issue for determination as follows:”

Does not the order of the Court of Appeal that the defendant pay part of the judgment debt awarded by the Ikole Native Court in Suit No. 113/48 of 1948 given on the 2nd day of July, 1948 amount to ordering the enforcement of the said judgment by an action instituted more than twelve years after the date of the judgment sought to be enforced.”

This issue clearly arises from the appellants 1st ground of appeal. It is to be noted that no issues have been canvassed in support of the other three grounds of appeal filed, which must therefore be deemed to have been abandoned.

The plaintiff/respondent (hereinafter called “respondent” simpliciter) also set out five issues for determination in his brief. Appellant has raised objection to all the issues raised, submitting that they should be discountenanced because they do not arise from nor do they encompass the grounds of appeal filed by him. For this submission he has cited and relied on (1) Momodu v. Momoh (1991) 1 NWLR (Pt.169) 608: (2) Oguma v. I.B.W.A. Ltd. (1988) 1 NWLR (Pt.73) 658. Appellant has also submitted that respondents issues as set out cannot be tied to his respondent’s notice because it is not a cross-appeal, which is all that this court can entertain under it’s rules of court. The second submission will be considered first because if it succeeds there will be no need to set out respondent’s issues for determination, unless they can be shown to arise from the appellant’s grounds of appeal/issue. In making this second submission counsel for the appellant had in mind the provisions of the Supreme Court (Amendment) Rules 1991. Under that amendment the procedure provided for under Order 8 Rule 3 of the 1985 Rules, described in the marginal note as “respondent’s notice of contention that judgment should be varied or affirmed on other ground” has been abrogated vide S.4(a) of the 1991 amendment. Any respondent seeking to so contend is now obliged to file a notice of appeal by way of a cross-appeal. If therefore the 1985 rules as amended are applicable, then the notice to contend filed by the respondent would be incompetent and therefore be discountenanced. The 1991 amendment however look effect on 1/10/91, whilst the present appeal was filed on 17/3/88. It therefore follows that the 1985 Rules (as unamended) is applicable, taking effect as it did on 1/4/85. Since Order 8 Rule 3 thereof provides for the filing of a notice to contend, the respondent’s notice filed before 1/10/91 is in order. There is therefore no need to file a cross-appeal before the issues canvassed therein can be considered. The second submission of the appellant therefore is not well-taken.

In order to be able to properly consider the first submission/objection it is necessary to set out the issues for determination set out in his brief by the respondent. They are set out in paragraph 13 thereof as follows:-

“(A) Whether or not appellant has a competent brief before the court.

(B) Whether the 1948 judgment (Exhibit ’84’) is a judgment debt which must be claimed within the time stipulated by law or whether it is a declaratory judgment laying down what appellant, as tenant, should thenceforth annually pay respondent as landlord (rights and duties of both parties).

(C) Whether or not the real issue between the parties is one of landlord versus tenant as regards tenure of land under native law and custom,

(D) Whether or not the law of limitation applies to matters of land tenure under customary law,

(E) Whether or not there is ownership of land by prescription under Yoruba Native Law and Custom,”

Respondent’s counsel in reply has conceded that Issues A and E above do not arise from the grounds of appeal filed by the appellant. I agree with him, and therefore hold that these should be discountenanced. They are accordingly struck out together with arguments in the brief in their support. In submitting that these issues do not arise from the grounds of appeal filed, appellant’s counsel had submitted that arguments in his brief and in this court have been confined to the applicability or not of section 4(4) of the relevant Limitation Act (supra). In his counter- submission that his Issues B, C and D arise from the grounds of appeal, respondent’s counsel in respect of issues Band C cited and relied on Okoye v. N.C.F.C. Ltd. (1991) 6 NWLR (Pt.199) 501 (533 para. G to 534 para. 8): and on Issue 8 specifically Okoya v. Santilli (1990) 2 NWLR (Pt.131) 172 (191 paras C and D) was relied on. With regard to Okoya v. N.C.F.C. (supra), Order 6 Rules 5 and 10 of the Court of Appeal Rules (as amended) deal with appeals from the High Court to the Court of Appeal and not from the court below to this court. What is more the Rules of this court do not contain any such specific provisions as in Order 6 Rule 10 of the Court of Appeal Rules which states that:-

“…where an appellant fails to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondent’s brief.”

It does not therefore support respondent’s contention. The decision in Okoya v. Santilli (supra) is however relevant because it deals with the nature of declaratory and executory judgments, and the differences between them. Whilst the latter declare the respective rights of the parties and then proceed to order the defendant to act in a particular way, and is therefore immediately enforceable; the former merely proclaims or declares the existence of a legal relationship and do not contain any order which may be en forced against the defendant vide Government of Gongola State v. Tukur (1989) 4 NWLR (Pt.117) 592. Such declaratory judgments may be the ground or basis of subsequent proceedings in which the rights having been violated, receive enforcement (per Agbaje, J.S.C. at p. 199 of Okoya v. Santilli (supra).

With regard to issue B, I am of the view that it clearly arises from the ground of appeal filed by the appellant and the solitary issue canvassed because the nature of the judgment, whether declaratory or executory, may be relevant in deciding whether section 4(4) of the Limitation Law being relied upon is applicable. Issue is not really a proper issue between the parties, the High Court having determined same by holding that the relationship of customary landlord and customary tenant between the parties, and the fights and obligations pertaining thereto, have not been taken away by the Land Use Act 1978; a decision affirmed by the Court of Appeal. Issue is very relevant because all the sections of the relevant Limitation Law must be read together and the applicability of section 4(4) thereof cannot be considered without reference to the prior provisions of section 1(2) which by its very language affects all other provisions of the Limitation Law of Western Region of Nigeria, No.7 of 1959. I must also add that it is also an answer to appellant’s submission that the issues raised by the respondent who filed a respondent’s notice need not be dependent on appellant’s grounds/issue because the very nature of the procedure under Order 8 Rule 3 allows for the affirmation or variation of the judgment to be on “grounds other than those relied upon by that court”, and the respondent in this case has clearly set out the grounds he relies upon. These adequately cover Issue B and D as set out by the respondent in this appeal. The first submission of the appellant as it affects respondents Issues B and D cannot therefore be upheld.

The sole issue raised for determination by the appellant in this appeal has been set out earlier. The complaint of the appellant is set out clearly in para. 6.01 of his brief thus:-

“In spite of the fact that the Court of Appeal held that the claim was in a way enforcing the judgment given in 1948 which was caught by Section 4(4) of the Limitation Law, their Lordships gave judgment to the plaintiff for arrears of tribute from 1964 to 1976 as being within 12 years of the plaintiffs claim at the Customary Court.” (Note: Italics mine).

It is the contention of the appellant that what the respondent did in the lkole Customary Court was to sue on a judgment which he obtained in 1948. Since he has chosen to do so, instead of enforcing the judgment by way of execution, he is bound by the provisions of section 4(4) of the Limitation Law, Cap 64 Laws of Western Nigeria 1959, which provides that:-

“An action shall not be brought upon any judgment after the expiration of twelve years from the date on which the judgment became enforceable and no arrears of interest in respect of any judgment shall be recovered after the expiration of six years from the date on which the interest became due”

This sub-section therefore imposes a time bar on the right of a judgment creditor to enforce a previous judgment by another action. In the final submission of appellant’s counsel, once the action to enforce a previous judgment is instituted more than twelve years after the previous judgment was obtained then such enforcing action is statute barred. It is therefore not open to the enforcing court to seek to grant any part of the fruits of the first judgment. Appellants counsel cited and relied on (1) Lougher v. Donovan (1948) 2 All E.R. 11; (2) W.T. Lamb & Sons v. Rider (1948) 2 K.B.331; (3) Berliner Industriebank Aktiengesellschaft v. Jost (1971) 2 All E.R. 117.

In answer, respondent has urged that the judgment of 1948 is a declaratory judgment as distinct from an executory one. It stated the entitlement of the plaintiff to Isakole (annual rent) but did not enter judgment for him in respect of any definite sum. It stated what the defendant is to be paying in the future, i.e. at the end of each year. Such a judgment is not, he submitted, what is contemplated by Section 4(4) of the Limitation Act of Western Region (supra). There appears to be some force in this submission. Section 4(4) calculates the 12 year limitation period “from the date on which the judgment became enforceable”. As shown earlier, by reference to Government of Gongola State v. Tukur (supra) and Okoya v. Santilli (supra), whilst an executory judgment is capable of immediate execution, a declaratory judgment gives no such right. It merely declares the rights of the parties. The rights which it confers on the plaintiff can only become enforceable if another and subsequent judgment, albeit relying on the rights it declared, so decrees. Such a subsequent judgment conferring the power of execution is executory. The date of enforceability must be the date of the subsequent (executory) judgment and not the earlier judgment, which is merely declaratory. In the instant case the date of enforceability, from which the 12 year limitation period can be calculated is the 29th May, 1980 and not the 2nd July, 1948. The contention that Section 4(4) of the Limitation Act (supra) applies to bar such a judgment does not therefore arise. In other words, that section is applicable to a merely declaratory judgment when it becomes executory. What the court held is that it is applicable to restrict the number of years for which the respondent (as plaintiff) can recover Isakole to 12 years. What the respondent is contending is that instead of being held to have this partial effect, this court should hold it. in variation, fully ineffective. It is not necessary for a cross-appeal to have been filed in 1988 before this court can so hold, as appellant’s counsel has urged. The decisions in (1) Lougher v. Donovan (supra), (2) Lam hand Sons v. Rider (supra) and (3) Berliner etc v. Jost (supra) relied on by appellant’s counsel are all executory judgments. In all of them judgments/orders capable of immediate execution (executory) were involved. In the first and third judgments, actions taken to enforce the judgments/orders made outside the 12 year limitation period were adjudged lime-barred. Respondents issue B succeeds as argued.

The respondent however also relies on issue D which asks:-

“D. Whether or not the Law of Limitation applies to matters of land tenure under customary law”

In other words, whether Section 1(2) of the Limitation Law is applicable to the present action. If the answer is in the affirmative, what is the result of so holding

Section 1(2) of the 1959 Law (supra) states that:-

“Nothing in this Law affects actions in respect of the title to land or any interests in land held by customary tenure or in respect of any matter which is subject to the jurisdiction of a customary court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death.” (Note: Italics mine).

Put very simply, this section excludes from the operation of the 1959 Law (“nothing in this law”) any claim for Isakole, which is an interest held by customary tenure. Section 4(4) of the Act cannot therefore affect the present action. The Court of Appeal seems to have taken a very ambivalent attitude to this provision in its judgment. At page 114 of the proceedings after setting it partly out, it states (per Ikwechegh, J.C.A.), that:-

“This is definite provision and is clear. It excludes any action such as the matter before us which is an action in respect of interest in land held by customary tenure. And the enactment clearly excepts it from its operations” (Note: Italics mine).

Yet, after so stating, it did not give effect to its clear findings on the law. And this is in spite of the fact that the respondent (as appellant before it) had raised that issue specifically in his brief before it, expressing an identical view – vide p.96 paragraphs 15 and 16thereof. It would however appear that the poor nature of the appellant’s brief prepared and filed by counsel for the respondent (then appellant), and his seeming lack of confidence in his submissions (as disclosed, by his brief and “tentative” agreement that Section 4(4) “could” apply – vide page 114 lines 25 to 31 of the record of proceedings, may have influenced the court adversely in this connection.

This issue, as posed by the respondent, is therefore a complete answer to the submissions of appellant’s counsel. The only problem which I now have to consider is whether it can be applied by this court, in this appeal, in order to give respondent the judgment he seeks, having regard to the way it has been brought before us.

To be considered by the court, any issue raised for determination must be based and arise from a proper/competent ground(s) of appeal vide Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511; Onyido v. Ajemba (1991) 4 NWLR (Pt.184) 203. In this appeal, as stated earlier, the respondent did not file any appeal, but came by way of a respondent’s notice as then provided by Order 8 Rule 3(1) of the Rules of this court.

This states that:-

“3-(1) A respondent who, not having appealed from the decision of the court below, desires to contend on the appeal that the decision of the court should be varied…… must give notice to that effect specifying the grounds of that contention and the precise form of the order which he proposes to ask the court to make (Italics mine).

In compliance with the provisions of Rule 3(1) above, the respondent by his notice dated 17/3/88 vide pages 133/134 of the record of proceedings sought variation of the courts judgment as follows:-

“1. Arrears of Isakole for the whole of the period of twenty-eight (28) years claimed should be awarded to respondent instead of for twelve (12) years.

2. Consequently, judgment should be given to respondent for:-

(a) 56 tins of palm oil, at the current value,

(b) 1,400 kolanuts at the current value,

(c) N28.00 at the prevailing currency.”

Of the four grounds which respondent stated that he is relying on, only the third (3) is relevant for our consideration, and it states:-

“3. As has been canvassed by respondent the whole claim is based on customary land tenure which is not subject to the Limitation Law by virtues of Section 1(2) of the law as found by the lower court”

It is on this ground that issue D being considered is anchored.

The question that now arises is whether the respondent can properly canvass this issue by raising same by way of a respondent’s notice under Order 8 Rule 3. That notice as filed by the respondent, seeks a variation of the judgment of the court below. It does not, and cannot, ask that its judgment (be it a “finding” or a “ratio”) be set aside vide Western Steel Works & Or v. Iron Steel Workers & Or (1987) 1 NWLR (Pt.49) 284 (287) where it was held that a respondent’s notice is only available to vary and retain the judgment and not to reverse same, So that where a complete reversal of the decision of the lower court is sought by a respondent what he has to do is to file a cross-appeal instead of a respondent’s notice vide Adekeve v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214 (217): Sunmonu v. Ashorota (1975) 1 NMLR 16,

When the respondent raised this issue in the court below, that court was ambivalent in its treatment of same (as has been commented on earlier). It however concluded, in its judgment, contrary to the provisions of Section 1(2) of the Limitation Law (supra), that Section 4(4) thereof is applicable, and on that basis gave judgment for part only (12 years) of the total claim (28 years) of the plaintiff. To invite this court to hold the contrary and then proceed to give judgment to the respondent as prayed in his notice would be a reversal not variation of the judgment of the court below. On the basis of the authorities earlier canvassed, to set aside the judgment of the court below, the respondent has to file an appeal (i.e. a cross-appeal) against it: and not merely file a respondent’s notice. This he has failed to do.

The consequence of this failure must be that judgment cannot be given to the respondent as prayed since his prayer is not properly placed before this court. This court as stated earlier in its consideration of Section 4(4) of the Limitation Act cannot close its eyes to the clear and unequivocal provisions of Section 1(2) of that Law. In view of that provision which excludes matters such as the one presently on appeal from the operation of the Limitation Law (supra), the appeal of the appellant must fail, and it is hereby so ordered. The judgment of the court below is hereby affirmed.

The respondent is entitled to part only of the costs of this appeal which I assess at N1,000,00 only.

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Other Citation: (1992) LCN/2558(SC)