Oyebamiji & Ors.v. Iyabo Afusat Lawanson & Ors (2008) LLJR-SC

Oyebamiji & Ors.v. Iyabo Afusat Lawanson & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

O. OGEBE, J.S.C.

The respondents sued the appellants before the High Court of Justice Ibadan claiming the following reliefs:-

(a) N10,000.00 General damages for trespass being presently committed by the defendants on the property of Bandele Ayinla Lawanson (deceased) the father of the plaintiffs lying and being at Orita Bashorun, Aba Road, Ibadan covered by Deed of conveyance registered as 50/50/458 of Lands Registry, Ibadan.

“(b) Perpetual Injunction restraining the defendants by themselves, their agents, servants and privies from committing further trespass on the land.”

Pleadings were exchanged by the parties and the trial court after hearing evidence and listening to the addresses of the parties gave judgment in favour of the Respondents Dissatisfied with the judgment, the appellants appealed to the Court of Appeal Ibadan and raised for the first time the issue of limitation of action. The Court of Appeal dismissed the appeal.

This is a further appeal to the Supreme Court and the learned counsel for the appellants filed a brief on their behalf and formulated five issues for determination as follows:-

1. “Whether the court has jurisdiction to entertain the paintiffs/respondents’ claims having regard to (i) Section 7 (2) of the Limitation Law Cap 64, Laws of Western Region of Nigeria and (ii) Section 4(1 )(a) of the Limitation Law Cap. 64, Laws of Oyo State of Nigeria, 1978”.
2. Whether the defence of limitation which relates to the issue of jurisdiction needs to be specifically pleaded in the Statement of Defence before it can be raised.
3. Whether the plaintiffs/respondents have discharged the onus of proof that exhibit “8” and exhibits ‘C’-C’3′ were duly executed by respective vendors mentioned in the said documents without calling any member of their family to testify on their behalf
4. Whether the plaintiffs/respondents have proved a better title to entitle them to judgment against the defendants/appellants
5. Whether the learned court has jurisdiction to entertain the action having regard to Section 10 of the Administration of Estates Law, Laws of Oyo State of Nigeria, 1978.”

The learned counsel for the Respondents also filed a brief on their behalf and formulated two issues for determination as follows: –

1. “Whether the statute of Limitation or any statute for that matter, is one that the Appellants should specifically plead in their statement of defence or one to be merely inferred by the court from the Respondents’ Writ of Summons and statement of claim and no more as the appellants are contending in this appeal”.

2 “Whether the plaintiffs/respondents has discharged the burden of proof placed on them to entitle them to the judgment of the court in this appeal.”

The two issues formulated by the Respondents encompass the five issues contained in the Appellant’s brief. I shall therefore adopt the issues formulated by the Respondents in determining this appeal.

The main argument of the learned counsel for the Appellants is that the trial court lacked the jurisdiction to try the case because, the action was statute barred by virtue of Section 7 (2) of the Limitation Law Cap 64, Laws of the Western Region of Nigeria and Section 4 (1) (a) of the Limitation Law Cap 64, Laws of Oyo State 1978. He also questioned the jurisdiction of the trial court to entertain the action having regard to Section 10 of the Administration of Estate Law, Laws of Oyo State of Nigeria 1978 because the respondents did not obtain letters of administration before suing in respect of the estate of their deceased father.

It should be noted that these issues were not raised in the court of first instance. The issue of limitation was raised for the first time in the Court of Appeal and the Court of Appeal ruled against the appellants. The issue is being repeated in this Court. The issue in respect of the Administration of Estate Law is being raised for the first time in this Court.

The learned counsel for the appellants submitted that the cause of dispute arose in the year 1984 while the action was brought in 1991 It was therefore caught by the Limitation Law of Oyo State. He relied on the case of Egbe V. Adefarasin 1987 1 NWLR Pt. 47

(1). He submitted that the defendants need not plead the statute of limitation before it is enforced since it touches on jurisdiction and can be raised at any stage. He relied on the case of Amata V. Omofuma (1997) 2 NWLR (Pt. 485) 93, which I find inapplicable to the facts of the present case.

The learned counsel further submitted that since respondents did not obtain letters of administration before suing, they had no locus standi to institute the action

In reply the learned counsel for the respondents submitted that the action was not caught by the Limitation Law of Oyo State and that in any event if the Appellants intended to rely on the Limitation Law they should have pleaded it specifically as required by Order 25 Rule 6(1) and (2) of the High Court (Civil Procedure) Rules of Oyo State. He submitted that the Limitation Law and the Administration of Estate Law, Laws of Oyo State now being relied upon by the appellants were not pleaded and facts upon which the appellants could rely to invoke the defences created by these Laws in their favour were not pleaded. He relied on the following cases: “F.C.D.A v. Naibi (1990) 5SCNJ 186 at 194-195, Adegbola v. Obalaja (1978) 2 LRN 164 at 167, Fadare v. A.G. of Oyo State (1982) 4SC1 at 12-13, where Limitation Law was pleaded by the defence. Ojo v. Banjo (1979) 2 LRN 396 at 298 where the statute was pleaded. Onwuchekwe v. N.D.I.C (2002) 94 LRCN 232 at 239, Texaco Panama v. Shell Petroleum (2002) 94 LRCN 152.”

The learned counsel further argued that there is nothing from the pleadings to show that the action is statute barred

Order 25 Rules 6( 1) and (2) of the High Court (Civil Procedure) Rules of Oyo State reads as follows:-

“Rule 6(1) – A party shall plead specifically any matter for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality-which, if not specifically pleaded might take the opposite party by surprise

Rule 6(2) – Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or the defendant, as the case may be; and, subject thereto, an averment of the performance or, occurrence of all conditions precedent necessary for the case of the plaintiff or the defendant shall be implied in his pleading.”

These provisions are very clear that a party wishing to rely on a Statute of Limitation or the Administration of Estate Law must specifically plead same. It is not true therefore that such defence should be left to speculation or inference. Apart from that, the respondent’s claim was for present trespass as at the time of the action, and the Statute of Limitation could not possibly apply to it. It was also very clear from the pleadings that the respondents inherited their deceased father’s property under Customary Law and so, the question of the application of the Administration of Estate Law or the application of English Law did not arise.

On the second issue as to whether the respondents discharged the burden of proof to entitle them to judgment, the learned counsel for the appellants submitted that the respondents did not discharge the onus of proof; they were never in possession of the disputed land and did not show a better title. The learned counsel for the respondents submitted otherwise and said that the judgment appealed against is based on the concurrent findings of facts of the High Court and Court of Appeal and the Supreme Court should not disturb them.

The facts of the case are relatively simple. The respondents sued for trespass and injunction and were able to show that their father purchased the land in 1959 from Olugbode family under customary law, and the land was converted into a conveyance exhibit ‘8’ on 20th April, 1961 which was duly registered in the Land Registry, Ibadan. The appellants claimed to have bought the land by customary law as far back as 1956 but were unable to establish that fact. The trial court disbelieved them and gave judgment in, favour of the respondents. The Court of Appeal also evaluated the evidence thoroughly and dismissed the appellants’ appeal.

It is not the practice of this Court to interfere with concurrent findings of facts of both the trial court and Court of Appeal on essentially issues of fact unless there is established a miscarriage of justice or a violation of some principles of law or procedure. See: Nziwu V. Onuorah (2002) 4 NWLR (Pt. 756) 22 No such situation has arisen in this case the judgments of the two lower courts cannot be faulted.

For all I have said in this judgment I see no merit whatsoever in this appeal and it is hereby dismissed with costs of N10,000.00 in favour of the respondents.NIKI TOBI, J.S.C.: The main plank of this appeal is whether the action commenced by the plaintiffs/respondents was statute barred or not, having regard to section 7(2) of the Limitation Law, Cap. 64, Laws of Western Region of Nigeria and section 4 (I) (a) of the Limitation Law, Cap.64, Laws of Oyo State of Nigeria 1978.

The facts are material to the determination of the issue as they relate to when the cause of action arose and when the action was filed. And so, I take the facts. It is the case of the plaintiffs/respondents that the original owner of the land in dispute was the family of Olugbade. One Bamidele Ayinla Lawanson purchased the land from Olugbade family in 1959. A Deed of Conveyance dated 20th April, 1961 was executed in his favour. Bamidele Ayinla Lawanson (deceased) built a mud house on the land. He reared goats and sheep on the land. Part of the land was given to P.W.6. The defendant entered the land in 1984 and chased away all the tenants put on the land. The plaintiffs/respondents, who claimed as the next of kin and beneficiaries of the estate of Bamidele Ayinla Lawanson, did not take any action until 1991.

The case of the 1st appellant is that he purchased the land in dispute from Olugbade family in 1956 during the visit of Queen Elizabeth II to Nigeria. He bought the land in the presence of witnesses for 150 British pounds. He was put into possession and he has remained in possession ever since. The case of the other appellants is that they purchased portion of land from the 1st defendant/appellant.

On 3rd April, 1991, the plaintiffs/respondents filed a writ of summons claiming as follows:

“(a) N10,000.00 General damages for trespass being presently committed by the Defendants on the property of Bamidele Ayinla Lawanson (Deceased), the father of the plaintiffs, lying and being at Orita Bashorun, Abasa Road, Ibadan covered by Deed of Conveyance registered as 50/50/548 of Lands Registry, Ibadan.

(b) Perpetual injunction, restraining the Defendants, by themselves, their agents, servants and privies from committing further trespass on the land.”

The learned trial Judge gave judgment to the plaintiffs/respondents. An appeal to the Court of Appeal was dismissed. Delivering the lead judgment, Tabai, JCA (as he then was) said in the final paragraph of his judgment at page 235 of the record:

“In the light of the foregoing consideration I resolve all the issues in favour of the Respondents. I have no strong reason to disturb the judgment of the learned trial Judge which is accordingly affirmed. The result is that the appeal is dismissed.”

Dissatisfied, the appellants have come to the Supreme Court. Briefs were filed and exchanged. The appellants formulated five issues as follows:

“1. Whether the Court has jurisdiction to entertain the plaintiffs/respondents’ claims having regard to (i) Section 7 (2) of the Limitation Law Cap. 64, Laws of Western Region of Nigeria and (ii) Section 4 (1)(1)(a) of the Limitation Law Cap.64, Laws of Oyo State of Nigeria, 1978.

2. Whether the defence of Limitation which relates to the issue of jurisdiction needs to be specifically pleaded in the Statement of Defence before it can be raised.
3. Whether the plaintiffs/respondents have discharged the onus of proof that exhibit ‘B’ and exhibits ‘C-C3′ were duly executed by respective vendors mentioned in the said documents without calling any member of their family to testify on their behalf.
4. Whether the plaintiffs/respondents have proved a better title to entitle them to judgment against the defendants/appellants.
5. Whether the learned court has jurisdiction to entertain the action having regard to Section 10 of the Administration of Estates Law, Laws of Oyo State of Nigeria, 1978.”

The respondents formulated two issues as follows:

1. “Whether the Statute of Limitation or any statute for that matter, is one that the appellants should specifically plead in their Statement of Defence or one to be merely inferred by the court from the respondents. Writ of summons and Statement of Claim and no more as the Appellants are contending in this appeal.
2. Whether the plaintiffs/respondents have discharged the burden of proof placed on them to entitle them to the judgment of the court in this appeal”

I do not know how the appellants managed five issues in their brief. As I said, the appeal centres on whether the action was statute barred or not. And there is the ancillary issue of whether the statute of Limitation should be specifically pleaded. Can these give rise to five issues I think not. The two issues formulated by the respondents are more likely appropriate”.

Section 6 (2) of the Limitation Law Cap 64 of the Laws of Western Region of Nigeria provides:

“No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrues to him”

Section 7 (2) of the same Law provides:

“Where any person brings an action to recover any land of a deceased person, whether under a Will or an Intestacy, and the deceased person was on the date of his death in possession of the land, and was the last person entitled to the land to be in possession thereof, the right of action shall be deemed to have accrued on the date of his death.”

As section 6(2) of the Limitation Law provides for a period of twelve years, the action is not statute barred. There is yet another valid aspect and it is on whether the Limitation Law was pleaded. Counsel for the appellants relying on sections 6(2) and 7(2) of the Limitation Law, submitted that the subsection did not provide for pleading of the law as a pre-condition. With respect, that is rather preposterous and intangible. The submission challenges the provision of Rule 6 (1) of the High Court (Civil Procedure) Rule of Oyo State on the head. The sub-rule provides:

“A party shall plead specifically any matter for example performance release, any relevant statute of Limitation which if not specifically pleaded might take the opposite party by surprise”

Rule 6 (1) justifies the position of the court that a defence of Limitation must be specifically pleaded. The correct way of pleading the defence is to raise distinctly the particular statutory provision relied upon.

In Iheanocha v. Ejogu (1995) 4 NWLR (Pt.389) 324, the Court of Appeal held that the defence of Limitation must be specifically pleaded. The same decision was reached in Allen v Odubeko (1977) 5 NWLR (Pt.506) 638. As the Limitation Law was not specifically pleaded, by the defendants/appellants, they cannot rely on it as a defence.

There is still one aspect and it is the concurrent findings of facts of the two courts. The law is trite that the court cannot interfere with the concurrent findings of the High Court and the Court of Appeal unless they are perverse. I do not see any perversity in their findings.

It is for the above reasons and the more detailed reasons given by my learned brother, Ogebe, J.S.C in his judgment that I also dismiss the appeal. I abide by his order as to costs.

SC.72/2004