IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON , THE DAY OF , 2022
BEFORE THEIR LORDSHIPS:
OBANDE FESTUS OGBUINYA JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
PETER OYINKENIMIEMI AFFEN JUSTICE, COURT OF APPEAL
APPEAL NO: CA/L/880/2017
BETWEEN:
MR. JAMES OLUSEGUN SOTIKARE ------------- APPELLANT
AND
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
Before the High Court of Lagos State, the Respondents, as Claimants, claimed against the Appellant, as Defendant, declaration of title to a piece of land lying and situate at 29, Onajimi Street, Bariga, Lagos State, perpetual injunction, Five hundred thousand Naira (N500,000.00) damages for trespass and possession of the land. At the conclusion of hearing, the lower court, in its judgment delivered on 22/03/3017, contained at pages 258 – 268 of the Record of Appeal, found for the Claimants/Respondents as per their Amended Statement of Claim and granted all the reliefs sought by them. Aggrieved with the decision, the Appellant activated the jurisdiction of this court by filing a Notice of Appeal on 13/04/2017 containing six grounds of appeal – pages 269 – 272 of the Record of Appeal.
The gist of the Respondents’ claim at the lower court was that they are owners of the land by inheritance from their father, late Joseph Banjo Atunrase who acquired interest in a large expanse of land at Bariga, Shomolu Local Government Area of Lagos State from one Oje Shotayo of which the land in dispute is part, with the Oloto family as the radical title. The transaction was evidenced by a Deed of Conveyance dated 28/02/1964. The Deed, attached to which is the survey plan showing the large expanse of land, was duly registered. That the plot of land was not sold to anybody either by the late Joseph Banjo Atunrase or his successors-in-title. The Respondents stated that it was during the latter part of 2006 that they discovered that the Appellant encroached and trespassed on the land in dispute. They did all they could to get the Appellant out of the land without success, hence their resort to court.
On the other hand, the Appellant’s case as per his Amended Statement of Defence, was that he purchased the six rooms bungalow standing on the land in dispute from one Lamidi Dairo, a butcher and native of Ode Remo in Ogun State on 15/02/1975. He took possession immediately and caused a survey plan to be drawn by a licensed surveyor. That his vendor was a lessee of the family of one Mohammed Bello Bashorun of Bariga, who was noted to have purchased two large tracts of land (of which the land in dispute is a part) from Esugbayi Oloto Ajayi Oloto vide Deed of Conveyance dated 17/04/1923. After purchasing the Bungalow, the Defendant approached the representative of the Bashorun family who sold the land to him for the sum of N1,000 (One thousand Naira) vide family receipt dated 19/02/1975. It is his case at the lower court that his vendor has been in possession of the land since 1959 by building a six-room bungalow which he bought in 1975 and therefore the claim of the Respondents that they noticed somebody trespassed onto their land in 2006 is not true. Appellant said he moved into the Bungalow in 1975 with his first son, Olutayo Sotikare and thereafter had four other sons on the property, born between 1975 and 1984. The Appellant pleaded the Limitation Law of Lagos State, 1994 and the doctrine of laches and standing-by.
As required by the Rules, parties filed and exchanged Briefs of Argument. The Appellant’s Brief settled by Prince Debo Oduguwa, filed on 01/03/2018 and the Respondents’ Brief settled by Ogunniyi Oguntola with Kuforiji John Kolawole, filed on 08/12/2020, were both deemed properly filed and served on 20/01/2022.
In the Appellant’s Brief, the following two issues were distilled for determination:
The Respondents also formulated two issues which, in their view, will dispose of this appeal, couched thus:
My assessment of the issues formulated by both parties is that they are speaking the same language in different tongue or intonation. The issues are the same in substance but only differ in semantics. My second observation is that from the two issues formulated on either side of the divide, I can decipher only a single issue for determination in this appeal, not two. The parties merely split the single issue into two. I will however take the issues as they are without any attempt at rephrasing. I will adopt the issues formulated by the Appellant in the resolution of this appeal, after all, he is the person aggrieved.
Argument
Learned counsel for the Appellant submitted that even though the Appellant pleaded Limitation Law, doctrine of laches and standing-by and raised same under issue 4 of his final written address, the lower court completely ignored same as if they were not placed before it. He relied on Adekeye vs Adesina (2011) ALL FWLR (Pt.571) 1509-1526; N.B.C. vs. Okwejiminor (1998) 8 NWLR (Pt.561) 295 @ 300; Ito vs. Ekpe (2000) FWLR (Pt.6) 927 @ 946, to support the principle of law that the court is bound by the pleadings filed before it as they represent the grievances and claims of the parties, as well as the principle that a Judge has obligation to deal with all the life issues placed before him. It was argued that parties having joined issues on the limitation law and the doctrine of laches and standing-by, it was incumbent on the trial Judge to make findings one way or the other on whether the equitable defences were available to the Appellant and whether the action was barred by limitation. He contended that this is a case where the trial Judge abdicated her judicial duty thereby arriving at a wrong decision which occasioned a miscarriage of justice. Learned counsel submitted that if the trial Judge had considered these defences she would have come to the conclusion that the action was statute barred and that the defence of laches and standing-by were available to the Appellant. The court was urged to invoke section 15 of the Court of Appeal Act and assume full jurisdiction over the matter in view of the lower court’s abdication of responsibility, citing Iwuoha vs. Mobil Producing (Nig) Ltd (2013) ALL FWLR (Pt.664) 144 @ 155.
On issue 2, counsel submitted that the learned trial Judge was wrong not to have considered the facts in the Appellant’s pleadings that he has been on the land since 1975 and that his vendor, Mr. Lamidi Dairo has been in possession of the same land since 1959 and that the Respondents’ father who died in 1986 has, during his lifetime, neither challenged the Appellant nor the Appellant’s vendor who has been in possession of the land for 36 years before the death of the Respondents’ father. Relying on section 16 (2) of the Limitation Law of Lagos State Cap 67, learned counsel argued that the Respondents’ suit was state barred as it was filed more than 12 years after the Appellant’s vendor took possession of the land. The authorities of Chigbu vs. Tonimas (2006) 9 NWLR (Pt.984) 189 @ 211; Olagunju vs. Power Holding Company of Nigeria PLc (2011) 10 NWLR (Pt.1254) 113 @ 133; Donbraiye vs. Preyor (2015) ALL FWLR (Pt.774) 127; Ajayi vs. Adebiyi & Ors (2012) ALL FWLR (Pt.634) 1, (2012) SCNJ (Pt. II) 458 @ 480-481; were cited on the purpose and essence of statute of limitation. Learned counsel submitted that statute of limitation extinguishes the right of action and the court has no discretion in the matter, citing Eboigbe vs. NNPC (1994) 5 NWLR (Pt.34) 649 @ 659; Adekoya vs. Federal Housing Authority (2008) 4 SC 167; Camreoon Airlines vs. Otutuizu (2011) 1-2 SC (Pt.111) 200. The court is urged to resolve issue 2 in the negative by holding that the Respondents were not entitled to judgment as their suit was barred by limitation, laches, acquiescence and standing-by.
On the whole, the Appellant urged the court to hold that the lower court lacked jurisdiction to entertain the suit for the reasons stated in the two issues argued in his Brief.
The Respondents argued issue 1 in their Brief, thus: After conceding that the Appellant pleaded the doctrine of laches and standing-by, the Respondents contended that the Appellant failed to lead evidence in support of his pleading, as he merely relied on his long possession and Deed of Conveyance, which he failed to tender in evidence. Learned counsel for the Respondents submitted that an averment in pleading upon which no evidence is led is deemed abandoned, citing Boniface Anyika & Co. Lagos (Nig) Ltd vs. Uzor (2006) 15 NWLR (Pt.1003) 560 @ 572; Ifeta vs. SPDC Nig. Ltd (2006) ALL FWLR (Pt.314) 305 @ 316-317. He argued on the authority of The State vs. Collins Ojo Aibangbe & Anor (1988) 7 SC 96. He argued that a trial Judge only decides a case on the evidence before him and that in the absence of evidence of limitation, laches and standing-by, the lower court cannot be expected to manufacture evidence for the Respondents. Learned counsel submitted that the Court of Appeal is only concerned with the rightness of the decision and not the reason for arriving at the decision. He urged the court not to interfere with the finding of facts by the lower court and to resolve issue 1 in favour of the Respondents.
On issue 2, Respondents’ counsel submitted that the Appellant has failed to lead evidence to show that the cause of action arose before the year 2006 when the Respondents noticed the encroachment on their land. He submitted that the only materials the trial court will look into to determine when the cause of action arose are the Writ of Summons and the Statement of Claim, beyond which the trial court could not go. Relying on the case of Okereke vs. Nwankwo (2003) 25 WRN 88, learned counsel stated the conditions that a party who set up the defence of laches and standing-by must establish, which conditions, the Appellant failed to lead evidence thereon. He argued that the failure of the Appellant to tender his Deed of Conveyance was fatal to his case just as his defence of limitation, laches and acquiescence have collapsed for want of evidence. The court was urged to resolve all the issues in favour of the Respondents, dismiss the appeal and affirm the judgment of the lower court.
Resolution
All the two issues formulated in this appeal are interwoven and centred around statute of limitation and the doctrine of laches and standing-by. Due to this interrelatedness of the issues, I will treat them together.
At paragraph 22 of the Amended Statement of Defence, found at pages 143-146 of the Record, the Defendant/Appellant pleaded the defence of laches and the limitation law, thus:
“Following upon the averments contained in paragraphs 16 to 21 hereof, the Claimants’ action is caught by the provisions of the Limitation Law of Lagos State,1994. This action is also caught by the doctrine of laches and standing by.”
In joining issues with the Defendant/Appellant, the Claimants/ Respondents averred in paragraph 24 of their Amended Statement of Claim, at pages 109-111 0f the Record, as follows:
“The Claimants aver that since the land in dispute is not even the same claimed by the Defendant all the equitable defence (sic) will not avail the defendant.”
The above pleadings clearly shows that parties have joined issues on limitation law and doctrine of laches and standing-by. But as pleadings do not speak, except when laced or backed by evidence, I checked the Record of Appeal with a view to finding whether or not evidence was led on this pleading. I found at pages 251-255 of the Record that the Appellant adopted his written statement on oath made on 28/11/2012 as his evidence before the lower court, tendered exhibits K, L, M, N, P, Q - Q2, and was subsequently duly cross examined by the Respondents’ counsel. In his evidence, the Appellant said he is not a trespasser as he bought the six-room bungalow on the land from one Mr. Lamidi Dairo, a Lessee of the family of one Mohammed Bello Bashorun, on 15/02/1975 and has been living in the Bungalow since then with his family. He testified that between 1975 and 1984 he sired three children in the Bungalow on the land. He said he has been on the land for eleven years before the Respondents’ father died in 1986, and that during his life time, the Respondents’ father did not challenge his possession of the Bungalow in any way. It was his further evidence that the Respondents have abandoned or slept over their rights, if any, and therefore lacked the legal capacity to institute the action against him. Other than asking him his root of title under cross examination, the Appellant was not cross examined on his claim that he has been in occupation of the Bungalow on the land since 1975. See pages 254-255 of the Record. In her judgment at page 265 of the Record, the learned trial Judge isolated three issues for determination as follows: “(1) Identity of land in dispute. (2) Which of the parties has better title to the land in dispute? (3) Whether a case of trespass has been established.” The lower court proceeded to dealt with the three substantive issues identified above and concluded the judgment without addressing the issue of limitation of action and the doctrine of laches and standing by. The law is that a court of law, particularly lower court, has a statutory duty to consider and decide on all issues raised and submitted to it for determination. The essence of considering and determining all issues raised before a court is to accord with the principle of fair hearing as enshrined in our Constitution and to avoid the breach of a complaining party’s right to fair hearing. It will amount to a serious lapse in the performance of his/her judicial duty for a Judge to shy away from determining all issues properly raised before him/her, as done by the trial judge in the case now on appeal. In the case of Brawal Shipping (Nig.) Ltd vs. F.I. Nwadike Co. Ltd & Anor (2000) LPELR-802 (SC), Uwaifo, JSC, held as follows:
“It is no longer in doubt that this court demands of, and admonishes the lower courts to pronounce, as a general rule, on all issues properly placed before them for consideration, in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal.”
See also Owodunni vs. Registered Trustees of Celestial Church of Christ & Ors (2006) LPELR-2852 (SC); Samba Petroleum Ltd vs. U.B.A. PLC (2010) 6 NWLR 530; Dingyadi vs. INEC (2010) LPELR-40142 (SC); Sule vs. State (2009) LPELR-3125(SC). A deliberate failure by a court to consider all issues raised before it amounts to a miscarriage of justice and a failure to perform a statutory duty. See Ovunwo vs. Woko (2011) LPELR-2841 (SC).
In the case now on appeal, the lower court conveniently and completely ignored the issues surrounding statute of limitation and the defence of laches and standing-by upon which parties have joined issues in their pleadings and evidence led by the Defendant/Appellant to that effect. This is despite the fact that the court took time to review the elaborate submissions of the Appellant’s counsel on the said issues of limitation law and the defence of laches and standing-by in its judgment. See pages 5 and 6 of the Judgment at pages 262 and 263 of the Record. I think, without mincing words, that the lower court was in grave error for abdicating its sacred judicial responsibility of dispassionately treating and determining every issue raised by the parties before it one way or the other. This failure or omission by the lower court has no doubt occasioned a miscarriage of justice to the Appellant who raised the issues that were not considered and determined. There is a reasonable probability that the Appellant may have gotten a favourable outcome had the lower court considered his contentions that the Respondents’ action was statute barred and further that the Respondents were caught by the doctrine of laches and standing-by. The consequence of failure by the lower court to consider all the issues raised, especially by the Appellant, which occasioned failure of justice, is that the judgment appealed against cannot stand, it is liable to be set aside. Consequently, I allow the appeal and set aside the judgment of the High Court of Lagos State in Suit No. ID/740/2011 delivered on 22/03/2017.
Now, among the reliefs sought by the Appellant at paragraph 4 of the Notice of Appeal, specifically at page 271 of the Record, is an order striking out the main suit in its entirety same having been caught by Limitation Law of Lagos State and on the principle of laches and acquiescence. In the Appellant’s Brief of Argument, this court was urged to invoke section 15 of the Court of Appeal Act and assume full jurisdiction over the matter in view of the lower court’s abdication of responsibility.
Section 15 of the Court of Appeal Act, 2004, empowers this court to rehear a case in whole or in part and make orders that a court of first instance could have made in appropriate cases towards the attainment of substantial justice to the parties in an appeal before it. The section is designed to facilitate speedy administration of justice thereby obviating the necessity of the parties returning to the lower court for re-hearing in the event an appeal succeeds. The application of the section is however subject to the fulfilment or existence of some conditions as laid down by the Supreme Court. The conditions are:
See Ezeigwe vs. Nwawulu (2010) LPELR- 1201 (SC); Amaechi vs. INEC (supra); Agbakoba vs. INEC (supra); Obi vs INEC (supra); Inakoju vs. Adeleke (supra) & Dangombe vs. Lassanjang (2016) LPELR- 40791 (CA).
It is not in doubt that the lower court has the requisite power and jurisdiction to adjudicate on suits founded on declaration of title to land, such as the instant one. My concern with the invocation of section 15 of the Court of Appeal Act for this court to determine the Appellant’s contentions is that the materials upon which this court can act, as prayed for by the Appellant, are not before us. This has created an intractable hurdle in the way of a complete and effectual determination of the case by this court sitting in its appellate jurisdiction. I have combed through the 308 pages Record of Appeal, comprising of all the processes filed by the parties, judgment of the lower court and Notice of Appeal, and found that none of the exhibits tendered by the parties and marked by the lower court were transmitted to this court as part of the Record of Appeal. The exhibits are, no doubt, the relevant materials that will enable this court determine when the cause of action accrued for purposes of the application of limitation law. The exhibits are also the materials that will assist this court determine whether the Respondents slept over their rights as alleged by the Appellant. In the absence of the marked exhibits, this court is confronted with an incomplete Record of Appeal which makes it impossible for us to accede to the Appellant’s supplication to invoke section 15 of the Court of Appeal Act, 2004. Condition number 3 for the invocation of section 15 of the Court of Appeal Act has therefore not been met by the Appellant as all the necessary materials for consideration by this court have not been made available to this court. This failure or omission is fatal to the Appellant’s’ request for this court to assume full jurisdiction over the matter at the lower court. Painful as this action may be, the only option available to this court is to remit the case back to the Chief Judge of Lagos State for trial de novo by another Judge. I so order.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
PRINCE DEBO ODUGUWA FOR THE APPELLANT.
O.O. OGUNTOLA FOR THE RESPONDENTS.
