Dr. Tosin Ajayi V. Prince (Mrs.) Olajumoke Adebiyi & Ors (2012)
LAWGLOBAL HUB Lead Judgment Report
OLUFUNLOLA OYELOLA ADEKEYE, J.S.C
This is an appeal against the judgment of the Court of Appeal Lagos Division delivered on the 4th of July, 2000. The judgment of the Court Appeal affirmed the judgment of the High Court of Lagos State delivered on the 12th November, 1996. The facts of the case are that the plaintiff Oba John Ojomo now deceased commenced an action in the High Court of Lagos State against Dr. Tosin Ajayi as 3rd defendant the Attorney-General of Lagos State as 1st defendant and the Military Governor of Lagos State as 2nd defendant. By order of the trial court, the plaintiff amended his statement of claim on the 4th December 1995, and thereupon claimed against the defendants as follows:
(a) A declaration that the acquisition and/or revocation of his Right of occupancy by Lagos State Government of his land at Opebi Village Ikeja covered by the registered Deed of conveyance dated 7th July 1977 and registered as No.94 at pages 94 in volume 1635 Lagos State, is a nullity.
(b)An Order directing the immediate provision and grant to the plaintiff by the 1st and 2nd defendants of a parcel of land comparable in size in a comparable locality for a term of ninety years at a nominal ground rent of not more than one Kobo per annum free of all survey, stamping, registration and other charges.
Alternatively, against the defendants jointly and severally damages or compensation in the sum of N20,000,000 (Twenty Million Naira) for the unlawful confiscation and permanent eviction of the plaintiff from his aforementioned land.
(c) An Order directing the payment of mesne profits of damages or compensation for the unlawful occupation of the said land by the defendants from the date of purported acquisition thereof at the rate of N2,000,000 per annum until the date of payment.
The plaintiff unaware of the purported Notice of Acquisition was dismayed when the 3rd defendant relied on Lagos State Government Notice No. 140 contained in the Lagos State Gazette No. 11 volume 7 of 1974. The plaintiff engaged a Registered Surveyor, Ademola Ashipa who produced a composite plan LAT/90/LA/95; Exhibit E which showed that out of the plaintiffs land contained in his deed of conveyance; Exhibit A measuring 5592.184 square metres, only 1485 square metres edged Blue in area in Exhibit E falls within the area of Acquisition. It is evident from the composite plan; Exhibit E that the plaintiff’s land falls within his predecessor-in-title’s land Alhaji Isiba verged Green. The area verged Blue covered by the Notice of Acquisition encroached upon the plaintiff’s land verged Red.
The 1st and 2nd defendants, the Military Governor of Lagos State and the Attorney-General of Lagos State though were served with all Court processes did not file their defence to the case.
The 3rd defendant who filed a defence to the case, engaged in applying for several adjournments including filing motions to amend his statement of defence. At the stage when the plaintiff had closed his case, the 3rd defendant brought summons to dismiss or strike out the action for lack of jurisdiction on the ground that the case is statute barred by the limitation law of Lagos. Though it took the 3rd defendant three years after this suit was instituted before his statement of defence was filed, he did not plead facts raising the statute of limitation or the defence of Public Officers Protection Law Cap 114 Laws of Lagos State. The defence of Public Officers Protection Law and the Limitation Law of 1994 are special defences which in accordance with Order 17 Rule 11 of the High Court of Lagos State Civil Procedure Rules 1994 must be specially or specifically pleaded. The learned trial judge was however of the impression that the summons dated the 2nd of August 1996 brought after issues have long been joined by the parties and the plaintiff had called all his witnesses and closed his case was brought to stall the proceedings.
The learned trial judge after hearing arguments from both parties dismissed the application in its entirety and ruled that the 3rd defendant shall put up his defence and at the end of his defence he would be allowed to raise any point of law the learned senior advocate may wish to put up. The 3rd defendants counsel continued to apply for adjournments to contact the 3rd defendant. On the 27th of September, 1996 the learned trial judge refused to grant any further adjournment sought by the 3rd defendant in the matter and closed his case. On the 12th of November 1996 the learned trial judge delivered judgment and granted the reliefs sought by the plaintiff in the Amended Statement of claim (vide pages 137-147 of the record). The learned trial judge awarded the sum of N100,000 per annum with effect from 1st of January 1986 until possession is yielded.
Having been aggrieved by the decision of the learned trial judge the 3rd defendant appealed to the Court of Appeal. In the judgment of the Court, the learned justice relied on the cases of Odusote v. Odusote (1971) All NLR pg. 221 and Solanke v. Ajibola (1965)1All NLR 46 at pg. 54 to hold that:-
“With these number of adjournments at the instance of the appellant the impression, one gets is that he was not diligent. It is useless course for a party to continuously employ tactis to delay the disposal of cases expeditiously by 28th September, 1996 even after the series of adjournments, the appellants counsel was not sure of where the appellant was. Hence the learned trial judge was correct not to accede to further request for an adjournment for ample opportunity to hear his own side of the story has been given”. Vide pages 215 lines 5 – 13.
The Court of Appeal further held at pg. 217 lines 8 -15 that:
“That is what happened in the instant case. The respondent and the appellant had joined issues on their pleadings. Nowhere did the appellant plead facts raising issues of Notices of Acquisition and Limitation arising out of Public Acquisition Law which he now sought to raise in his summons for directions of 2nd August 1996.
Respondent had closed his case and the 3rd defendant had sought several adjournments but now brought the summons. The summons is definitely misconceived and was designed merely to halt the proceedings of the lower court”.
The 1st and 2nd defendants, the Military Governor of Lagos State and the Attorney – General Lagos State did not appeal against the judgment of the High Court and the Court of Appeal.
The 3rd defendant/appellant filed a further appeal to this court against the judgment of the Court of Appeal. Oba John Ojomo was represented at the Court of Appeal by Princess (Mrs.) Olajumoke Adebiyi and Prince Adedotun Ojomo as the 1st set of respondents.
While the 3rd and 4th respondents on 25th of September 2007 obtained an order for extension of time to cross-appeal against the judgment of the Court of Appeal dated 4th July, 2000.
At the hearing of the appeal on 13/2/2002 the appellant adopted and relied on the appellant’s amended, brief of argument deemed filed on 25/9/07 and the reply brief filed on 19/11/09.
The appellant distilled six issues for determination from the grounds of appeal as follows:
1 ) When does a cause of action accrue to a plaintiff and in this case is the action of the plaintiff/respondent statute-barred.
2) Whether the issue of jurisdiction could be raised at any stage of the proceedings.
3) Whether the court below was justified in holding that the rules of natural justice, fair trial and fair hearing were observed in this case when the 3rd defendant/appellant’s defence was unilaterally closed by the court on a date fixed for ruling on a preliminary objection raised by the plaintiff/respondent.
4) Whether the Court of Appeal was right in upholding the decision of the court that the acquisition notice is null and void and in so far as it relates to the portion of the respondent’s land which fall’s within the notice of acquisition.
5) Whether from the state of pleadings there was a cause of action in this case to warrant the judgment of the court below.
6) Whether the court below was right in affirming the findings of fact and evaluation of evidence in the circumstance of the case.
The 1st and 2nd respondents adopted and relied upon the 1st and 2nd respondent’s further amended brief of argument deemed filed on 10/11/09. The 1st and 2nd respondents settled five issues for determination as follows:
1) Whether the plaintiff/respondent’s case was statute barred.
2) Whether the Court of Appeal was right in holding that the validity and extent of the Notice of Acquisition in relation to the land in dispute can only be determined after hearing evidence on both sides.
3) Whether the Court of Appeal was right when they held that the learned trial judge was correct not to accede to further request for an adjournment as the 3rd defendant was given opportunity to be heard on Ground 5 of the Amended Notice of Appeal. Issue to be argued in alternative to notice of preliminary objection.
4) Whether the Court of Appeal was right in upholding the judgment of the trial court that the Acquisition Notice is null and void in so far as it relates to the portion of the respondent’s land.
5) Whether the Court of Appeal was right when they confirmed the findings of fact made by the trial court.
I intend to be guided by the issues formulated by the appellants.
The plaintiffs/respondents filed notice of Preliminary Objection later embodied in their brief against grounds 5 and 9 of the Notice of Appeal and issues Nos. 1 and 3 of the amended appellant’s brief.
The court is urged to strike out the grounds of appeal and the issues formulated from them for being incompetent. The objection to my mind is adequately covered by the issues for determination raised in the main appeal. The objection is therefore over-ruled for the avoidance of repetition.
I intend to cover them extensively in the main appeal.
When does a cause of action accrue to a plaintiff and in this case is the action of the plaintiff/respondent statute-barred.
The appellant considered this issue under three sub-heads as follows:
a) Whether the plaintiff’s/ 1st respondent’s suit is statute barred in the light of the provisions of the Lagos State Limitation Law.
b) Whether the plaintiff’s/ 1st respondent’s suit is statute barred in the light of the provisions of the Public Officers Protection Act.
c) Whether the title of the plaintiff is not caught by the rule Nemo Dat Quod Non Habet since the Lagos State Government acquired the land in dispute in 1974 while the plaintiff purchased the land in dispute in 1977 three years later.
As regards (a) above the appellant submitted that the 1st respondent’s action was statute barred by virtue of Section 16 (2) of Lagos State Limitation Law of 1994 and Section 2 (a) of the Public Officers Protection Law.
The Lagos State Government acquired the land in dispute on 16/4/74 while the 1st respondent purchased the land 3 years later but commenced action in respect of the government acquisition in 1991, seventeen years thereafter. The land was acquired by Lagos State Government by Government Notice No. 140 Public Acquisition Law Chapter 150 published in Lagos State Gazettee No. 11 Vol. 7 of 16th April 1974. A cause of action accrued as from the date the government acquisition is published in the government gazette.
University of Ibadan vs. Adetoro (1991) 4 NWLR pt. 542, pg. 404, National University Commission vs. Oluwo 2001 3NWLR pt. 699, pg. 40 at 107
Under Section 2 (a) of the Public Officers Protection Law the action against the Lagos State Government for the acquisition of the land at Opebi Village was not commenced within three months next after being aware of the acquisition in 1986 but the plaintiffs/respondent’s waited till 1991 to challenge the validity of the acquisition in court.
The appellant cited the cases of Permanent Secretary, Ministry of Works Kwara State Vs Balogun (1975) NSCC pg.292, Ibrahim vs. JSC (1998) 14 NWLR pt.584, pg. 1, Offoboche vs. Ogoja Local Government (2001) 16 NWLR pt. 739, pg. 458.
The appellant submitted that the 1st respondent’s predecessor in-title had no title in 1977 to pass unto the 1st respondent under the doctrine of Nemo Dat Quod Non Habet as the Lagos State acquired the land in 1974. In the circumstance the principal relief of the 1st respondent in the Amended Statement of Claim seeking for a declaration that the acquisition/revocation of the right of Occupancy of the plaintiff by the Lagos State Government is a nullity and cannot avail him. Revocation and acquisition affected his predecessor-in-title who was on the land in 1974. The land purchased by the 1st respondent in 1977 from Alhaji Momoh Isiba was a Government acquired land.
The 1st respondent had no locus standi to institute this action against the Lagos State Government or the appellant who bought land from the Lagos State Government. The appellant referred to the case of A-G Kaduna State vs. Mallam Umaru Hassan ((1985) 2 NWLR pt. 8.
The contention of the appellant is that the action has became statute barred having been instituted outside the twelve years stipulated by Section 16 (2) of Lagos State Limitation Law of 1994, while the right of action has became extinguished, having instituted the cause of action outside the three months statutory period allowed by Section (2) Public Officer Protection Law.
The 1st respondent replied to this issue by submitting that the appellant did not plead the Limitation Law and that he is a public officer in his statement of defence. Both are special defences which must be specially pleaded under Order 17 Rule 11 of the High Court of Lagos State Civil Procedure Rules 1994. The marginal note of this Rule indicate that certain facts must be specially pleaded of which the Limitation Law is one of them.
The 1st respondent emphasized that Dr. Tosin Ajayi is not entitled to take benefit of the special defence of Public Officers Protection Law Cap 114 Laws of Lagos State because he is not a public officer. In that a party who challenges the competence of a court on the basis of certain facts but fails to put in issue when those facts were pleaded, stand the risk of being precluded at a later stage when the proceedings have been brought to a final conclusion, from re-opening that issue of fact. In this case the appellant did not plead the Limitation Law and even if it is applicable the court cannot grant the defendants the benefit of the Limitation Law contrary to the rules of pleadings and the principal of avoidance of surprise.
The plaintiff/respondent emphasized that his case is not statute-barred by the provisions of Section 16 (2) of the Limitation Law of Lagos State. By virtue of paragraphs 12,18, 19 and 23 of the amended statement of claim dated 4th December, 1995 the validity of the notice of Acquisition raised by the plaintiff namely lack of service, purpose of acquisition not stated and the land in dispute falling outside the land covered by the Lagos State Government Notice No. 140 requires that oral evidence be taken from both parties to determine the issues as decided by the learned trial judge in his ruling while dismissing the summons of the appellant dated the 2nd of August 1996. The plaintiff/respondent instituted an action to challenge the acquisition of land as no legislation authorizes any person or authority in Lagos State to acquire private land save under statutory provision which include stating bona fide and with precision the public purpose for which the land was being acquired and to use the acquired land for that purpose only.
In paragraph 23 of the Amended statement of claim and the evidence of Ademola Ashipa a surveyor,the land in dispute falls outside the land covered by Lagos State Government Notice No. 140 as shown in the composite plan LAT/90/LA/95. The learned trial judge was willing to consider the objection raised by the appellant to the jurisdiction of the court but was of the opinion that since the plaintiff/respondent had closed his case,the appellant must put in his defence and both parties would thereafter be heard on the objection on oral evidence instead of affidavit evidence. This was affirmed by the Court of Appeal that issues of validity of an acquisition based on lack of service are issues that can only be determined after hearing evidence and not on affidavit evidence as the appellant wanted the court to rely on in this application. The plaintiff/respondent cited cases in support of his submission Mobil Producing Nigeria UNLTD v. LSEPA (2002) SC pt. 1, pg.26.; Ishola Balogun Ketu & Anor v. Chief Wahab Onikoro (1984) 111 SC 265; Oyebamiji & Ors v. Lawanson (2008) 6-7 SC 243 at 251; Osho v. Foreign Finance corporation (1991) 4 NWLR, (pt. 195) pg. 157.
The contention of the appellant under Issue One is that the plaintiff/ 1st respondent’s suit is statute-barred by virtue of the provisions of Section 16 (2) of the Lagos State Limitation Law Cap 1994. Before going further to consider the argument and submission of parties on this issue I find it convenient here to re-state the provision of that Law.
Section 16 (2) of the Lagos State Limitation Law 1994 reads:-
“An action for recovery of land shall not 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 accrued to same person through who he claims to that person”.
The essence of a limitation law is that the legal right to enforce an action is not perpetual right but a right generally limited by statute. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Therefore a cause of action is statute-barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had lapsed. An action which is not brought within the prescribed period offends the provisions of the law and does not give rise to a cause of action.
The yardsticks to determine whether an action is statute-barred are:
a) The date when the cause of action accrued.
b) The date of commencement of the suit as indicated in the writ of summons.
c) Period of time prescribed to bringing an action to be ascertained from the statute in question.
Time begins to run for the purposes of the limitation law from the date the cause of action accrues.
British Airways Plc. v. Akinyosoye (1995) 1 NWLR (pt.374) pg.722.
Shell Petroleum Development Co. (Nig.) Ltd. v. Farah (1995) 3 NWLR (pt.382) pg.148.
Jallea Ltd. v. Owoniboys Tech. Sew. Ltd. (1995) 4 NWLR (pt.391) pg.534.
Asaboro v. Pan Ocean Oil (Nig.) Ltd. (2006) 4 NWLR (pt.971) pg.595.
Oguko v. Shellel (2004) 6 NWLR (pt.868) pg.17.
Osun State Government v. Dalami Nigeria Ltd. (2007) All FWLR (pt.365) pg.438.
Akinkunmi v. Sadiq (2001) 2 NWLR (pt.696) pg.101.
FRN v. Associate Motors Co. Ltd. (1998) 10 NWLR (pt.570) pg.441.
Obiefuna v. Okoye (1961) 1SCNLR pg. 144.
The germane relief in the plaintiff/1st respondent’s action reads –
“(a)A declaration that the acquisition and/or revocation of his right of occupancy by Lagos State Government of his land at Opebi village Ikeja covered by his registered deed of conveyance dated 7th July 1977 and registered as No. 94 at pg.94 in volume 1635 Lagos State is a nullity.”
There is evidence that the land in Opebi village was acquired by the Lagos State Government by Government Notice 140 Public Acquisition Law Chapter 105 published in Lagos State of Nigeria Gazette No. 11 Vol. 7 of 16th April 1974. Under the Public Land Acquisition Law a cause of action or a right of action accrues as from the date the government acquisition is published in a government gazette.
University of Ibadan v. Adetoro (1991) 4 NWLR (pt.542) pg.404.
National University Commission v. Oluwo (2001) 3 NWLR (pt.699) pg.90.
The plaintiff/respondent’s root of title to the land was through purchase of the disputed land from one Alhaji Momoh Isiba by a Deed of conveyance Exhibit A dated the 7th of July 1977. PW3 Alhaji Aliu Afariogun a member of Iyade Oshoja family testified that the entire land in Opebi village belonged to his family. Alhaji Momoh Isiba purchased land from his family. He observed a building under construction on the land and the signboard of First Foundation Medical Centre in 1986. PW4 a registered surveyor employed by the plaintiff/respondent produced a composite plan of the entire land as Exhibit E. The land verged red on Exhibit E belongs to the plaintiff/respondent, the area verged blue is the area acquired by Lagos State Government. The land acquired by the Lagos State Government encroached on the 1st respondent’s land by up to 1,485 square meters.
The cause of action in respect of the acquisition accrued on the 16th of April 1974 when the Lagos State Government published the acquisition in the gazette. The plaintiff/respondent instituted his action at the Lagos High Court on the 31st of July 1991. By simple mathematical calculation from the date the cause of action accrued, which was the date the land was acquired by the Lagos State Government and published in the gazette on the 16th of April 1974 and the date the action was filed in 1991 is 17 years. By virtue of Section 16(2) of the Lagos State Limitation Law, the period for bringing an action for recovery of land is 12 years. The relevant section emphasised that an action for recovery of land shall not be brought after the expiration of 12 years from the date on which the right of action accrued to the person bringing it or if it accrued to some person through whom he claims to that person. An action which is not brought within the prescribed period of twelve years offends the provisions of Section 16(2) of the Lagos State Limitation Law 1994. The plaintiff/respondent’s action is consequently statute-barred having been caught by the Statute of Limitation. The appellant also raised the defence of Public Officers Protection Law. He claimed to have bought the disputed land from Lagos State Government. PW2 also testified that he saw people who claimed to have come from Lagos State Government as arrangement to acquire the land was then in progress. Before any issue as to whether the land in dispute has been properly acquired by a State Government and whether the notice of acquisition and revocation of grant was properly served by the government can be effectively adjucticated upon and determined by the trial court, it is imperative to join the state government concerned in the suit.
Elegushi v. Oseni (2005) 14 NWLR (pt.945) pg.348.
Mobil Oil (Nig.) Ltd. v. Nabsons Ltd. (1995) 7 NWLR (pt.407) pg.254.
The plaintiff/respondent rightly joined the Attorney-General Lagos State and Military Governor of Lagos State. It has not at any stage of the action either before the court of first instance and the appellate court discontinued the action against any of these parties.
By virtue of Section 2 of the Public Officers (Protection) Act Cap 114 Laws of Lagos State any action commenced against any person for any act done in pursuance or execution or intended execution of any Act, Law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Act or Law, duty or authority shall be brought within three months of the act, neglect or default complained of or in the case of a continuing damage or injury within three months next after the ceasing thereof. The word ‘person’ in that section does not only refer to natural persons but extend to public bodies, artificial persons sued by their official names or titles like the 3rd and 4th respondents in this case.
The officials of the Lagos State Government were spotted on the land in 1986. An action was filed in respect of the acquisition in 1991 against the Military Governor of Lagos State and the Attorney-General of Lagos State.
Where a law prescribes a period for instituting an action, proceedings cannot be instituted after that period. The plaintiff/respondent was out of time by five years. Ekeogu v. Abiri (1991) 3 NWLR (pt.179) pg.258. Yabugbe v. COP (1992) 4 NWLR (pt.234) pg.162.
Ibrahim v. J.S.C. (1998) 14 NWLR (pt.584) pg.1
Once again, where an action is statute-barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such an action had elapsed and the right to commence the action would have been extinguished by law.
Emiator v. Nigerian Army (1999) 12 NWLR (pt.631) pg.362.
Ekeogu v. Abiri (1991) 3 NWLR (pt.179)pg.258.
Permanent Secretary Ministry of Works Kwara State v. Balogun (1975) NSCC 292.
Ibrahim v. J.S.C. (1998) 14 NWLR (pt.584) pg.1.
Offoboche v. Ogoja L.G. (2001) 16 NWLR (pt.239) pg.458.
Egbe v. Adefarasin (1985) 1 NWLR (pt.3) pg.549.
Obiefuna v. Okoye (1961) 3 SCNLR 144.
The plaintiff/respondent argued that the public officers protection Law is a limitation statute. This is a special defence like fraud, estoppels, res judicata hence it must be specifically pleaded by a defendant before he can rely on it in any proceedings. The reason is to avoid taking the plaintiff by surprise as a limitation statute is not meant to be used to ambush the other party. Where such a defence is not pleaded by the defendant in the Statement of Defence in the court of first instance, the defendant can neither raise it nor rely on it on appeal.
The plaintiffs/respondents cited Order 17 Rule 11 of the High Court of Lagos State Civil Procedure Rules 1994 which provides that: –
“‘The defendant or plaintiff (as the case may be) must raise by his pleading all matters which show the action or counterclaim not to be maintainable or that the transaction is either void or voidable in point of law and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise or would raise issues of fact not arising out of the proceedings as for instance fraud, limitation law, Law of Lagos State release payment, performance, facts showing illegality either by an enactment or common law, or by the Law Reform (Contract) Law, Laws of Lagos State.”
At the close of the case of the plaintiffs/respondents, the appellant filed summons dated 2nd August 1996 through his new counsel. The appellant’s learned senior counsel raised the issue of lack of jurisdiction of the trial court as the suit is statute-barred and that the plaintiff has no locus standi to bring the action. These issues of law if properly examined and heard by the trial court are capable of terminating the proceedings. The learned trial judge’s conception was that the summons dated the 2nd of August 1996 was another delay tactics by the appellant. He dismissed the application and ordered the 3rd defendant to put up his defence to the claim of the plaintiffs/respondents before the court and that at the end of his defence, he would be allowed to raise any part of law the learned senior counsel wished to raise. The learned trial judge was ready and willing to entertain the points of law in respect of locus standi and limitation law, only after the appellant would have given evidence in support of his defence to the claim of the plaintiff/respondent.
This to my mind is a grave misconception of the principle of the law in issue. The whole basis of the preliminary point of law was to show the trial court that the action going by the writ and statement of claim was statute-barred and that the plaintiff/respondent had no locus standi to institute the action.
Under such peculiar circumstance, this court held in the case of Adegun v. Ayinde (1993) 8 NWLR (pt.313) pg. 576 that:-
“It is well settled that where a defendant conceives that he has a good legal or equitable defence to an action, he is entitled as a matter of preliminary objection to the action to raise such a defence. Where a preliminary objection is that an action does not lie, it postulates that the action is incompetent and the court therefore lacks the requisite jurisdiction. Where an action can be decided on a preliminary objection, it is manifestly absurd to suggest that the court should take evidence.”
The Court of Appeal surprisingly endorsing the grave omission of the learned trial court held at page 217 lines 8-15 of the record that:
“The respondent and the appellant had joined issues on their pleadings. Nowhere did the appellant plead facts raising issues of Notice of Acquisition and limitation arising from Public Acquisition Law which he now sought to raise in his summons for Direction of 2/8/96. Respondent had closed its case and the 3rd defendant had sought several adjournments but now brought the summons. The summons is definitely misconceived and was merely designed to halt the proceedings of the lower court.”
At page 216 lines 7-18 the Court of Appeal held that:-
“The determination of the dispute in relation to the land acquired by the government and the issue of validity or otherwise acquired by the Notice of Acquisition based on lack of service are issues that can only be determined after hearing evidence, not on affidavit evidence, as the appellants wanted the court to rely on in this application. The learned trial Judge was quite right when he upheld the objection of the respondents counsel and directed the defendant to put up his defence and raise the point of law at the conclusion of the trial. So also is the issue of Jurisdiction. It requires evidence. It cannot be easily determined on affidavit evidence.”
Both lower courts were carried away by the conduct of the case by the appellant that they failed to advert their mind to the preliminary points of law raised in the summons.
It is however trite that where the issue of limitation is raised in defence of an action, it is only proper that the issue should be addressed first as it makes no sense to decide the merit of a matter that is statute-barred. In the event of a successful plea of limitation law against a plaintiffs right of action, the action becomes extinguished and unmaintainable at law.
Muemue v. Gaji (2001) 2 NWLR (pt.697) pg.289.
Egbe v. Adefarisin (1985) 1 NWLR (pt.3) pg.549.
Sosan v. Ademuyiwa (1986) 2 NWLR (pt.27) pg.241.
The appellant concluded that the transaction between the Plaintiff/1st respondent and his predecessors-in-title was caught up by the Doctrine of nemo dat quod non habet. As the amended statement of claim of the plaintiff/1st respondent at paragraphs 10, 11, 12, 13, 14, 15, 16,, 17, 18, 19,20,21,22,23 and reliefs 1 and 2 agreed that the entire Opebi Village in Ikeja including the land in dispute was acquired by Lagos State Government in 1974. The plaintiff/respondent bought this same acquired land from one Alhaji Momoh Isiba. It was not for the Lagos State Government to serve Notice of Acquisition on the plaintiff/respondent in that Exhibit A – the purported title document of the plaintiff/respondent came three years after the Lagos State Government had acquired the land in dispute at Opebi Village Ikeja. Alhaji Momoh Isiba had no title in law by 1977 to transfer to the plaintiff/respondent. The Deed of Conveyance Exhibit A has no legal effect. The plaintiff/respondent ought to have instituted the action against his predecessor in title and not against the Lagos State Government who had acquired the land three years before the transaction of sale between the plaintiff /1st respondent and Alhaji Momoh Isaba. The plaintiff/ respondent had no locus standi to maintain an action against the Lagos State Government and the appellant that bought the land from the Lagos State Government. The person who could maintain an action against the Lagos State Government and the appellant is Alhaji Momoh Isiba the predecessor-in-title of the plaintiff/respondent. The plaintiff/respondent’s action is not justificiable as it is statute-barred. There is not dispute between the Lagos State Government who acquired the land in 1974 and the plaintiff/respondent who bought the land in 1977.
Locus Standi is the legal right of a party to an action to be heard in litigation before a court of law or tribunal. The term entails the legal capacity of instituting or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever.
The guiding principles to determine whether a person has locus standi or not are:
a. He must be able to show that his civil rights and obligations have been or are in danger of being infringed.
b. The fact that a person may not succeed in the action is immaterial.
c. Whether the civil rights and obligations having been infringed depends on the particulars of the case.
d. The court should not give any unduly restrictive interpretation to the expression locus standi.
The tests for the determination of the locus standi of a person are:-
a. The action must be justiciable.
b. There must be a dispute between the parties.
Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) pg.423.
Akinnubi v. Akinnubi (1997) 2 NWLR (pt.486) pg. 144.
Adesokan v. Adegorolu (1997) 3 NWLR (pt.493) pg.261.
A-G Kaduna State v. Mallam Umaru Hassan (1985) NWLR (pt.8) pg.483.
Elendu v. Ekwoaba (1995) 3 NWLR (pt.386) pg. 704.
Locus standi and jurisdiction are interwoven in the sense that locus standi goes to affect the jurisdiction of the court before which an action is brought. Thus where there is no locus standi to file an action, the court cannot properly assume jurisdiction to entertain the action. Locus standi being an issue of jurisdiction can be raised at any stage or level of the proceedings in a suit even on appeal at the Court of Appeal by any of the parties without leave of court or by the court itself suo motu. The issue can be raised, after the plaintiff has duly filed his pleadings by a motion and or in a statement of defence. Locus standi to institute proceedings in a court is not dependent on the success or merits of a case; it is a condition precedent to the determination of a case on the merits.
Owodunni v. Registered Trustees of C.C.C, (2000) 6 SC (pt.111) Pg.60.
Madukolu v. Nkemdilim (1962) 2 SCNLR pg.314.
Klifco v. Holfmann (1996) 3 NWLR (pt.435) pg.276.
The two lower courts fell into grave error in dismissing the summons filed by the appellant to raise the legal points of statute of limitation and locus standi by holding that legal points be raised at the conclusion of evidence on the legal reliefs sought by the plaintiff/respondent. The issue of locus standi is a condition precedent to the determination of a case on merit. Where a plaintiff has no locus standi to bring a suit, the suit becomes incompetent and the court lacks the jurisdiction to entertain it, the only order the court can make in the circumstance is that of dismissal. The two lower courts had obviously put the cart before the horse in their application of the operative principles in respect of the matter before them.
In paragraph 23 of the Amended Statement of Claim of the plaintiff/respondent pages 39-44 of the Record of Appeal states:
“The plaintiff avers that the land in dispute falls outside the land covered by Lagos State Government Notice No. 140 as shown in composite plan LAJ/90/LA/95 prepared by Ademola Ashipa.”
The foregoing averment being at variance with his claim and reliefs predicated on the acquisition, one wonders why he instituted this action against the appellant and cross-appellants/respondents.
I resolve this issue in favour of the appellant.
Whether the issue of jurisdiction could not be raised at any stage of the proceedings.
The appellant submitted that the lower courts had no jurisdiction to entertain this matter as it was ab intio statute-barred. By the doctrine of Nemo Dat Quod Non Habet, the plaintiff /1st respondent’s purported vendor had no title in 1977 to pass to him as the Lagos State Government acquired the land in dispute in 1974. Further in the Ruling dated 27/6/96 at page 90 lines 24-29 and in the judgment at page 144 lines 7 -8, the learned trial judge dismissed the preliminary objection on jurisdiction holding that the issue of jurisdiction raised by the appellant at the close of the plaintiff/ 1st respondent’s case was too late in the proceedings, “a delay tactics” and that the appellant can through his learned senior counsel raise any point of law he may wish at the end of the defence. The Court of Appeal affirmed the reasoning of the learned trial judge and at page 215 lines 15-27 of the Records relied on Order 22 Rule 2 of the Lagos State High Court Civil Procedure Rules of 1994 which provides for a party to raise by his pleadings any point of law and unless the court otherwise orders, any point of law so raised shall be disposed off by the judge who tries the cause at and after the trial. The court held that parties cannot isolate certain issues for determination. The Court of appeal was wrong to have held that the issue of jurisdiction requires evidence. The appellant defined jurisdiction and that Order 22 Rule 20 has nothing to do with the procedure of preliminary objection in regard to the jurisdiction of court.
This court made a clear distinction between demurrer and jurisdiction going by the case of NDIC v. CBN (2004) 7 NWLR (pt.766) pg.272 pt pages 244. The appellant submitted that objection to jurisdiction can be taken on the basis of statement of claim writ of summons and on the basis of the evidence received. It was misleading to equate demurrer with objection to jurisdiction as the two lower courts did. The appellant cited numerous cases in support of his submission on jurisdiction. Some of the cases are: –
Madukolu v. Nkemdilim (1962) All NLR (Pt.2) pg.571.
Oloriode v. Oyebi & Ors (1984) NSCC Vol. 15 297.
Aduwon & Ors v. Adeoti (1990) 2 NWLR (pt.1320) PG.271.
Western Steel Works Ltd. v. Iron & Steel Workers Union (1986) 3 NWLR (pt.30) pg,.617.
Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (pt.244) pg.675 at 690.
Barclays Bank of Nig. Ltd. v. Central Bank of Nig. Ltd. 119761 1 All NLR 409.
A-G of Kwara State v. Olawale (1993) 1 NWLR (Pt.272) pg.645.
The plaintiff/1st respondent replied by reference to the series of Adjournments granted to the appellant before and after hearing of the case, at the close of the plaintiff/respondent’s case.
On the 2nd of August 1996, the appellant through his new counsel, Chief M. Ohwovoriole SAN filed a summons praying the court to dismiss the action for lack of jurisdiction based on Limitation Law of Lagos State. The trial court dismissed the application and directed the 3rd defendant to put up the defence and raise the point of law at the end of his defence. The court on the 27th of September 1996 refused to grant any further adjournment to the appellant. The learned trial judge closed the case of the appellant.
The plaintiff/respondent held that the court of Appeal was right when it held that the learned trial judge was right in upholding the objection of the plaintiff and in directing the 3rd defendant/appellant to put up his defence and raise the point of law at the end of his defence. The plaintiff/respondent further submitted that the court of Appeal was right when it held that evidence was necessary to determine the validity or otherwise of the Notice of acquisition. The court of Appeal held that the appellant did plead the issues of limitation he now sought to raise in his summons dated 2nd August 1996 when he was to open his defence.
The court of Appeal saw the application as a delay tactics to stall the trial of the case before the trial court.
It is necessary to recount what transpired before the trial court and the rationale behind the reaction of the court of Appeal to the Ruling and judgment of the trial court. Before and after the commencement of trial in this suit, the learned trial judge had indulged the appellant with series of adjournments. The appellant changed counsel and on the 2nd of August 1996 filed a summons raising the issue of statute of limitation and locus standi of the plaintiff/respondent to institute the action, the court perceived the application as a delay tactics to stall the trial of the case. The court and the plaintiff/respondent saw the point of law relating to limitation law as one of those special defences which must be specially or specifically pleaded by the defendant according to order 17 rule 11 of the High court of Lagos State Civil Procedure Rules 1994. The court was persuaded that after trial had commenced, it is not open to any party to isolate certain issues for determination as cases are not tried in piecemeal manner, particularly when the matter was then part-heard. The court dismissed the application and directed the learned senior counsel to raise the point of law at the end of the defence. The court decided to hear both parties on the point of law raised after close of evidence.
The Court of Appeal affirmed the reasoning of the lower court and relied on Order 22 Rule 2 of the Lagos State High Court Civil Procedure Rules 1994 which stipulates that a party may raise by his pleadings any point of law and unless the court otherwise orders, any point of law so raised shall be disposed of by the judge who tries the case at or after the trial. The court went further to hold that it is not open to a party under the rules to isolate certain issues for determination. Consequently the Court of Appeal concluded that the issue of jurisdiction requires evidence as it cannot be determined on affidavit evidence (vide pg. 216 lines 16-17).
The foregoing findings of the two lower courts are a misconception of the principles of law relating to jurisdiction. The two points of law raised by the appellant’s senior learned counsel in the application dated the 2nd of August 1996 are fundamental issues of jurisdiction. Limitation Law and Locus Standi are both threshold issues which can be raised anytime or for the first in the Court of Appeal or in the Supreme Court. It is not limited to being raised as a special defence and pleading them specifically as required by the Rules of court under Order 22 Rule 2 of the Lagos State High Court Civil Procedure Law. It transcends any high court Rules. It can be raised by preliminary objection at any stage of the proceedings before any court by any of the parties or even suo motu by the court.
It is therefore noteworthy that an application or preliminary objection seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurrer and therefore can be filed and taken even before the defendant files his statement of defence or without the defendant filing a statement of defence. The reason being that the issue of jurisdiction can be raised at anytime.
In addition the relevant things to be considered by the court in determining the issue of jurisdiction are the facts as deposed to in affidavits, the writ of summons and the statement of claim where one had to be filed and served. The statement of defence is not one of the relevant materials for that purpose.
In the case of National Deposit Insurance Corporation v. Central Bank of Nigeria (2002) 7 NWLR (Pt.766) pg.272 pages 296-297, this court identified the difference between demurrer and objection to jurisdiction by holding that “There is distinction between objection to Jurisdiction and demurrer. It is misleading to equate demurrer with objection to jurisdiction. It is a standing principle that in demurrer, the plaintiff must plead and it is upon that pleading that the defendant will contend that accepting all the facts pleaded to be true, the plaintiff has no cause of action or where appropriate no locus standi. The issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not entirely depend as such on what a plaintiff may plead as facts to prove the relief he seeks. What it involves is what will enable the plaintiff to seek a hearing in court over his grievance and get it resolved because he is able to show that the court is empowered to entertain the subject matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction.”
It is trite that once an issue of jurisdiction is raised in any suit, the court must not give an order in the suit affecting the defendant until the issue of jurisdiction is settled. The trial court obviously made a wrong order in dismissing the application of the appellant based on issues of jurisdiction locus standi of the plaintiff/respondent and Limitation Law.
In the case of Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (pt.244) Pg.675 at page 693, it was held that “jurisdiction is the very basis on which any tribunal tries a case. It is the lifeline of all trials. A trial without jurisdiction is a nullity. This importance of jurisdiction is the reason why it can be raised at any stage of a case be it at trial, on appeal to the court of appeal or to this court (supreme court) a fortiori the court can suo motu raise it. It is desirable that preliminary objection be raised early on the issue of jurisdiction but once it is apparent to any party that the court may not have jurisdiction, it can be raised even viva voce as in this case. It is always in the interest of justice to raise the issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.”
Western Steel Works Ltd. v. Iron & Steel Workers Union (1986) 3 NWLR (pt.30) pg.617.
Oloba v. Akereja (1988) 3 NWLR 9pt.84) pg.508.
Odofin v. Agu (1992) 3 NWLR (pt.229) pg.350.
Furthermore, an objection to jurisdiction can be taken at anytime depending on what materials are available. It would be taken in the following situations –
a. On the basis of the statement of claim or
b. On the basis of the evidence received or
c. By a motion supported by affidavit giving full facts upon which reliance is placed or
d. On the face of the writ of summons, where appropriate as to the capacity in which action was brought or against whom action is brought.
A-G Kwara State v. Olawole (1999) 1 NWLR (pt.272) pg.645.
Izonkwe v. Nnadozie (1953) 14 WACA 961.
Adeyemi y. Opeyoyi (1976) 9 -10 SC pg.31.
Kasiwu Farms Ltd. v. A-G Bendel State (1986) 1 NWLR (pt.19) pg.695.
Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976) 1 All NLR 409.
National Bank (Nig.) Ltd. v. Shoyeye (1977) 5 SC 181.
The objection of the appellant dated the 2nd of August 1996 as to the Limitation Law in respect of the acquisition of the disputed land by the Lagos State Government and the issue of the locus standi of the plaintiff/respondent ought to have been entertained by the lower court as threshold issues.
The facts before the court based on the plaintiff/respondent’s case reveal that, the action instituted by him was statute-barred by virtue of Section 16 (2) of the Lagos State Limitation Law 1994 as it was brought 17 years after the acquisition instead of 12 years stipulated in the Limitation Law.
Furthermore by the averments in the pleadings of the plaintiff/respondent he acquired the land from his predecessor-in-title on the 7th of July 1977, whereas Lagos State Government published the Acquisition of the land in the gazette on the 16th of April 1974. His predecessor-in-title was the owner and occupier of the land in 1974. The plaintiff/respondent lacked the locus standi to institute this action as legally, he has no axe to grind with the Lagos State Government in respect of the acquisition.
In effect, where there is a challenge to the jurisdiction of a court, the court must first assume jurisdiction to consider whether it has or lacks jurisdiction. In this case, the defect in the competence of the trial court to entertain the suit was fatal, while the entire proceedings before the court was a nullity no matter how well conducted or decided or the level of industry put into the trial and judgment by the learned counsel for the plaintiff/respondent and the learned trial judge. The absence of jurisdiction is irreparable in law and the only procedural duty of a court is to strike out the case. In view of the fact that the proceedings and judgment of the trial court was a nullity, the matter ends there. The Court of Appeal has nothing to consider and affirm. The rule in U.A.C. v. Macfoy (1961) WLR pg.1405 becomes operative as you cannot put something on nothing.
The Supreme Court is always reluctant to overturn the concurrent judgments of the High Court and the Court of Appeal. Where concurrent judgments of the two lower courts appear to be perverse, occasion a miscarriage of justice, unreasonable and against the evidence adduced, or in violation of some principle of law and procedure, the Supreme Court will not allow them to stand. Bayol v. Ahamba (2001) 2 WLN 109
Cameroon Airlines v. Otutuizzu (2011) 4 NWLR (pt.1238) pg.512.
Onwubuariri v. Igboasoiyi (2011) 3 NWLR (Pt.1234) pg.357.
In view of the fact that this appeal raised an issue of jurisdiction which is sustained on the first two issues, it will not be necessary to consider the other four issues In the final analysis, there is merit in this appeal and it is hereby allowed. The judgment and orders of the two lower courts are accordingly set aside. Costs of the appeal is assessed at N50,000.00 against the plaintiff/respondent.
In the Amended Statement of Claim of the plaintiff Oba John Ojomo (deceased) dated the 4th of December 1995, at paragraph 23, the plaintiff claims against the defendants jointly and severally:-
1) A declaration that (1) the acquisition and/or (2) the revocation of his right of occupancy by the Lagos State Government of his land at Opebi village Ikeja covered by his registered deed of conveyance dated 7th July 1977 and registered as No. 94 at pg. 94 in volume 1635 Lagos State is a nullity.
2) An Order for immediate possession of the land subject-matter of the plaintiffs deed of conveyance.
3) Mesne profits in the sum of N2,000,000 per annum with effect from 1st January 1936 until possession is yielded up.
The 1st and 2nd defendants the Military Governor of Lagos State and the Attorney-General of Lagos State who were served with all courts processes did not file their defence to the case; consequently they did not defend this action in the High Court.
They did not appeal against the judgment of the High Court to the Court of Appeal either.
On the 25th of September 2007, this court granted them as 3rd and 4th respondents and order for extension of time to cross-appeal against, the judgment of the Court of Appeal dated the 4th of July 2000.
The 3rd and 4th respondents/cross-appellants adopted and relied on the cross- appellants’ amended brief filed on 8/10/07 wherein three issues were formulated for determination as follows:-
1) Whether the court below was right when it held that after commencement of trial it is not open to a party to isolate certain issues for determination even when that issue touched on the jurisdiction of the court.
2) Whether the court below was right when it held that it was proper for the trial judge to have dismissed the preliminary objection challenging its jurisdiction on the ground that the point of law raised therein to wit, statute of limitation was not placed in the statement of defence.
3) Whether the court below was justified when it held that the rules of natural justice, fair play and fair hearing were observed in their case when the 3rd defendant/appellant’s defence was closed on a date not fixed for hearing or for the defence to open.
The 1st and 2nd respondents raised a preliminary objection against 3rd-4th respondents/cross-appellants’ cross-appeal and the amended brief as being incompetent and ought to be struck out.
The plaintiff/respondent argued that the 3rd and 4th respondents/cross-appellants predicated all the issues on the judgment of the Court of Appeal. Whereas they did not file a defence at the High Court and were not a party at the trial before the court. They did not appeal against the ruling of the High Court dated the 27th September 1996 or the judgment of the court dated the 22nd September 1996. The grounds of appeal did not arise from the Ruling of the 27th of September 1996. The 3rd and 4th respondents have no legal grievance against the Ruling of the High Court dated 27th of September 1996 in respect of the Summons on Notice dated 2nd August 1996 filed exclusively by the 3rd defendant/appellant, Dr. Tosin Ajayi. The 3rd and 4th respondents have no locus standi to appeal against the ruling dated 27th September 1996 based on the Summons on Notice dated the 2nd August 1996 a process filed by the 3rd defendant. The issues raised against the judgment of the Court of Appeal cannot be sustained as they have no legal grievances to canvas on the said issues. The 3rd and 4th respondents have no valid cross-appeal; they cannot challenge the judgment of the Court of Appeal dated the 4th of July 2004.
The plaintiff/respondent cited cases in support of the submission like:
Akinbiyi v. Adetabu (1956) SC NLR pg. 109
Kotoye v. CBN (1989) 1 NWLR, pt.98, pg.419 at pages 445-446
Akulaku v. Yongo (2002) 2 SC pt.11, pg. 45 at page 74
Mobil Producing Nigeria Unltd. vs. LSEPA (2002) 12 SC Pt.1 pg.26
The 3rd and 4th respondents replied to the foregoing with reference to the leave granted by this court to cross-appeal from the decision of the Court of Appeal delivered on that 4th of July 2000.
The grounds of appeal filed in the cross-appeal arose from the decision of the Court of Appeal and not from the decision of the High Court. The grounds of appeal and issues formulated from them are valid and competent in law. The 3rd and 4th respondents/cross-appellants made reference to the provision of Section 233 (5) of the 1999 Constitution which provides that:
“Any right of appeal to the Supreme Court from the decisions of the Court of Appeal confirmed by this Section shall be exercisable in the case of a party thereto or the Supreme Court at the instance of any other person having an interest in the matter.”
The 3rd and 4th respondents maintained that they are parties on record in the Court of Appeal and therefore have a right of appeal against any decision made by the court as the plaintiff/respondent made than necessary parties on the suit.
I have considered the arguments of both parties and I agree with the 3rd and 4th respondents/cross-appellants that they are still Parties on record in the suit and even in this appeal, as the plaintiff’s/respondents did not file notice of discontinuance against them. On gleaning through the Record and the Amended brief of the 3rd and 4th respondents/cross-appellants, the Notice of appeal, the issues raised from them are predicated on and emanated from the case of the appellant as 3rd defendant before the High Court, and his appeal to the Court of Appeal. The traditional role of a respondent in an appeal is to defend the judgment but the 3rd and 4th respondents did not support the judgment of the two lower courts. They have filed this cross-appeal in solidarity with the appellant as the Court of Appeal dismissed the appeal of the appellant and affirmed the judgment of the trial High Court.
The trial High Court in the judgment delivered on the 12th November 1996 declared that the acquisition made by the 4th respondent/cross-appellant was not made for education and other social service while the order made against the 1st – 3rd defendants were made jointly and severally in terms of the plaintiffs amended statement of claim, dated 4/12/95. The order in the foregoing judgment affirmed by the Court of Appeal affected the cross-appellants. However, the three issues raised by the cross-appellants in their cross-appeal are issues which were subsumed in the issues raised in the main, appeal and covered by the argument of both parties. It will be merely repetitive to go over the issues in this cross-appeal. The issues of jurisdiction raised in the main appeal were sustained with the resultant effect of nullifying the entire proceedings before the court of first instance and consequently
rendering the judgment of the Court of Appeal hollow. The objection to the cross-appeal is over-ruled. The cross-appeal is meritorious and it is allowed. No order as to costs.