⦿ CASE SUMMARY OF:
ALHAJA WULEMOTU AJIBONA v. ALHAJI SURAJUDEEN KOLAWOLE & ANOR (1996) – SC
by PipAr Chima
⦿ LITE HOLDING
The plaintiff has to prove his case before the defendant can be entitled to reply. Where the plaintiff has not proved his case, there will be nothing for the defendant to reply to.
⦿AREA OF LAW
Statute of limitation
Weight of evidence
Root of title
Alhaja Wulemotu Ajibona
Alhaji Surajudeen Kolawole & Anor.
(1996) JELR 45955 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
The claims of the plaintiff/appellant in the High Court of Lagos State were for:
1. Declaration of title in fee simple against the defendant to the piece or parcel of land, situate lying and being at Apesin Street, known as No. 27/29 Apesin Street, Idi-Araba, Surulere and therefore entitled to the statutory right of occupancy in respect of the said piece or parcel of land situate, lying, being and known as 27/29 Apesin Street, Idi-Araba, Lagos.
2. Possession of the aforesaid piece or parcel of land.
3. Injunction to restrain the defendants, his heir(s), successor(s), agent(s), servants and/or assigns from further interfering (sic) with the plaintiff’s possessory rights as to the aforesaid land.
The writ of summons was filed in Lagos at the Lagos Judicial Division of the High Court.
Pleadings were ordered, filed, settled and exchanged and at the close of pleadings, the matter came up for hearing before Adeniji, J. After hearing evidence of witnesses called by the parties and addresses of counsel, the learned trial Judge gave judgment in favour of the plaintiff. He granted all the reliefs claimed by the plaintiff.
The defendant appealed.
In an unanimous decision, the defendant’s appeal was allowed and the plaintiff’s action was dismissed. The three justices agreed that the plaintiff’s claim should have been dismissed on the ground that she did not establish her title to the land in dispute.
They disagreed on the operation of the Limitation Law. Uwaifo and Pat-Acholonu, JJ.C.A. were of the view that it did not operate against the plaintiffs. Ayoola, J.C.A. held that the plaintiff’s claim was statute-barred and should have been dismissed on that score alone.
Both parties were dissatisfied and appealed to this court.
The plaintiff appealed against the whole decision. The defendant appealed against that part of the decision where Uwaifo and Pats-Acholonu, JJ.C.A. held that the Limitation Law does not operate to bar the plaintiff’s claims.
1. Whether the Court of Appeal was right when it held that the plaintiff failed to establish title to the land?
2. Whether the limitation law applies to bar the plaintiff from claiming against the defendant?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The plaintiff’s case as pleaded is that Aboki family which originally owned a vast area of land conveyed the said vast area to Lawrence Antonio Cardoso by an instrument dated 23:3:15 and registered as No.79 at pages 301 in volume 92. The plaintiff also averred that in 1917, Lawrence Antonio Cardoso sold the said land to Abudu Salami Ajibona for a total sum of 3380 pounds paid to Cardoso by Ajibona. The payment was evidenced by receipts which were admitted in evidence as Exhibits “A” and “B”. The said conveyance of 1915 was not tendered in evidence to enable the court know the extent of the land covered by it which was sold to Abudu Salami Ajibona. Exhibits “M” and “M 1” refer to plans attached to them. The said survey plans were not before the court. The plaintiff pleaded a deed of conveyance dated 1:8:19 and registered as No.26 page 26 in Volume 131 of the Register of Deeds kept at Lagos Land Registry by which Cardoso conveyed the land to Ajibona. This deed of conveyance was not also produced in court. This conveyance was pleaded in paragraph 7(1) of the amended statement of claim. The plaintiff also pleaded in paragraph 9 of the amended statement of claim that part of the land sold to Lawrence Antonio Cardoso by Aboki family in 1915 was the subject of litigation in Suit No. 176/51 and that the title of the said Lawrence Antonio Cardoso was confirmed by the judgment in that case. He neither tendered the conveyance of 1919 nor the court judgment in evidence.
ii. The Court of Appeal could not have come to a different conclusion having regard to the state of the pleadings and the evidence adduced by the parties. The learned trial judge failed to put the two sets of facts on an imaginary scale let alone weighing one against the other. The only evidence led by the plaintiff was that of purchase supported by unreliable and insufficient documents. The purchase was not proved and his case failed. I will therefore say that he did not follow the fundamental procedure laid down in Mogaji and Ors. v. Odofin and Ors. (supra) and his approach is most unfair to the appellant. Had he followed the proper procedure, his finding would have been in favour of the defendant.
2. THE SUPREME COURT HELD THAT THE LIMITATION LAW BARRED THE PLAINTIFF/APPELLANT FROM BRINGING AN ACTION.
i. I am of the same view with Ayoola J.C.A.The defendant has been in actual possession of this land for over twelve years and the plaintiff has been out of possession for the same period of time. This much was agreed by the learned trial judge and the court below. The defendant has made out a case of exclusive possession of this land by building and living on it for these number of years. Assuming that this parcel of land was originally the plaintiff’s, which I do not concede, it is clear to me that she lost it by the uninterrupted possession of the defendant. When one looks at the whole circumstances, and the unquestioned enjoyment of the land by the defendant by doing what I have referred to above on the land, I have no doubt that the defendant has been in possession to the exclusion of the plaintiff.
ii. On the reading of the provisions of the Limitation Law of Lagos State as a whole, they do not merely deny the right of action. They completely extinguish an existing right at the expiration of twelve years from the accrual of the right of action. In this case, there in no dispute that the defendant built two houses on the land between 1953/54 and 1955/56. There is also no dispute that the defendant has lived on the land for over twelve years from then. He made physical use of the whole land to the exclusion of the plaintiff and was therefore in adverse possession of it. On a cumulative reading of the entire provisions of the Limitation Law and in particular, Sections 16, 17, 19 and 21 thereof, knowledge on the part of the plaintiff is not a condition precedent. The knowledge of the plaintiff is immaterial. The words of the Limitation Law of Lagos State are clear and unambiguous and must therefore be accorded their ordinary meaning.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
Sections 17, 19 and 21 of the Limitation Law Cap 118 Laws of Lagos State. They provide:
17. Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof and has while entitled thereto been dispossessed or has discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.
19(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some persons in whose favour the period of limitation can run.
(2) Where – (a) Under the provisions of this Law a right of action to recover land is deemed to accrue on a certain date; and (b) No person is in adverse possession of the land on that date; the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.
21. On the expiration of the period fixed by this Law for any person to bring an action to recover land, the title of that person to the land shall be extinguished.
⦿ REFERENCED (CASE)
Mogaji and Ors. v. Odofin and Ors. (1978) 4 S.C. 91 at 93, Fatayi-Williams J.S.C. (as he then was) said: “When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all.”
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
It is important to bear in mind the nature and scope of omnibus ground of appeal in civil cases. It must be stressed that when a complaint is against the weight of evidence, the complaint is of necessity against the totality of the evidence adduced before the court and not on a finding of fact on a specific issue or document as the case may be. In the latter case, the finding should be raised as a substantive ground of appeal. See Ndiwe v. Okocha (supra). It cannot be used to raise issues of or errors in law. The complaint questions the appraisal and evaluation of all the evidence adduced and not the weight to be attached to any particular piece of evidence. – Ogwuegbu JSC. Ajibona v. Kolawole (1996)
An omnibus ground of appeal is therefore designed to allow a complaint on evaluation of evidence and it encompasses complaint of improper evaluation of evidence. It implies that the judgment of the trial court cannot be supported by the weight of the evidence adduced by the successful party which the trial judge either wrongly accepted or that the inference drawn or conclusion reached by the trial Judge based on the accepted evidence cannot be justified. An omnibus ground of appeal also implies that there is no evidence which if accepted would support the findings of the trial judge. – Ogwuegbu JSC. Ajibona v. Kolawole (1996)
Apart from fraudulent concealment of right of action which itself furnishes a cause of action, knowledge cannot be said to be relevant. In order to constitute such fraudulent concealment as would, in equity, take a case out of the law of limitation, it is not enough that there should be merely tortuous act unknown to the injured party or the enjoyment of property without title while the rightful owner is ignorant of his right; there has to be some abuse of a confidential position some intention at imposition, or some deliberate concealment of facts. To enter a land without the knowledge of the owner does not constitute concealed fraud. Under the Limitation law, the right to land is extinguished, in the absence of fraud, after discontinuance of possession for the period enacted in the law, although the owner so discontinuing possession was unaware that adverse possession had been taken. See Rains v.Buxton (1880) 14 Ch.D.537. The question of fraudulent concealment did not arise in this case. – Ogwuegbu JSC. Ajibona v. Kolawole (1996)
The Limitation Law and all laws of this description ought to receive beneficial construction. They should be construed liberally but not in such a way as to read into them words not intended by the law makers as the majority decision of the court below portrayed. All limitation laws have for their object the prevention of the rearing up of claims that are stale. To contend that the defendant must prove plaintiff’s knowledge of such adverse possession for time to start to run, or the defendant’s presence on the land is to import a strange condition into the Limitation Law. – Ogwuegbu JSC. Ajibona v. Kolawole (1996)