ADEGBAYI & ORS v. AKANDE (2018)

In The Court of Appeal of Nigeria

On Tuesday, the 13th day of February, 2018

CA/IB/274/2011

Before Their Lordships

MONICA BOLNA’AN DONGBAN-MENSEM  Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI  Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO  Justice of The Court of Appeal of Nigeria


Between

1. CHIEF HAMMED ADEAGBO ADEGBAYI
2. ALH. (CHIEF) YEKINNI SANUSI ADEGBAYI
3. MR. SAFIU ADESINA ADEGBAYI
4. ALH. OLADOYE ADEYOSOYE ADEGBAYI
5. MR. ABIDOYE BEYIOKU ADEGBAYI
6. MR. SUNDAY OLADELE AHAYI ADEGBAYI
7. MR. ONAOLAPO ADEGBITE
(FOR THEMSELVES AND ON BEHALF OF ADEGBAYI FAMILY MEMBERS)-Appellants

AND

MRS. OMOLOLA AKANDE-Respondent

…………………….A…………………….

NONYEREM OKORONKWO, J.C.A.(Delivering the Leading Judgment): The claim of the appellants as claimants in the Court below is as follows:
(i) A declaration that the plaintiffs on behalf of themselves and other members of Adegbayi family are entitled to Certificate of Statutory Right of Occupancy over all that piece or parcel of land situate, lying and being at Adegbayi Area in Ibadan, bounded on the first part by Ife Road, and on the other sides by Adegbayi landed properties as shown in Survey Plan No. SOF/331/002/002 (D) 2006/OY and together edged RED in the survey plan drawn up by Tunji Fajobi & Co. Registered Surveyors and dated the 24th of July, 2006 attached to this suit and being trespassed upon and claimed by the defendants.
(ii) N5,000.000 being general damages for trespass committed and still being committed by the defendants, agents, privies and servants on the said plaintiffs landed property.
(iii) PERPETUAL INJUNCTION restraining the defendants, their servants, agents, privies and all other persons claiming through them from further trespassing on the said parcel land.

The Writ of Summons was dated 7 -11  2005.
Background 
From the facts given by the trial Court the case of the appellant was that their ancestor Adegbayi was founder of the Land in dispute situate along Ibadan/Ife Road in Ibadan shown on Survey Plan No. SOF/331/002/002/D2006/OY.
The said ancestor begat children as pleaded who through succeeding generations begat the appellants. The land in dispute as well as other portions of land of Adegbayi has remained family land without partition and all dealings in the land has always been with the consent of all the nine sections of the Adegbayi family. The defendant was alleged to have trespassed onto the land sometimes in 1999 whereupon the appellants sued defendant in suit No. 1/455/99 but discontinued the action before the present.
Four witnesses testified for the appellant in the trial at which PW2 therein testified that the people who sold the land to the defendant are from one branch of the family.
The gist of the respondent???s case is that the present respondent’s late husband became seized of the land in dispute by deed of conveyance dated 6th May 1970 and registered as No. 59 in Vol. 1192 of the Lands Registry of Ibadan, contending that respondent exercised acts of ownership on the land without let or hindrance since 1970. Two witnesses testified for the respondent one of whom DW1 testified that as a bricklayer he had worked for the respondent’s husband in erecting the fence on the land in dispute in 1982 but that although part of the fence was destroyed during the re-construction of the Ife/Ibadan road, they went back to re-erect the fence that was demolished giving a set-back of 100 feet backwards from the Centre of the road. DW2 who succeeded her husband defendant testified that her late husband received compensation from the Federal Ministry of Works for the demolition of the fence aforesaid and the re-erection of the damaged fence in 1982/83 without interference from the appellants and that they (respondent) have been on the land for about 37 years to the knowledge of the appellants. It was stated in evidence that respondent’s husband had successfully prosecuted a trespasser Dr. Attie in suit No. 1/538/99 in respect of the land.
DW3, an official of the Federal Ministry of Lands, Housing and Urban Development tendered Exhibit F showing among that compensation was paid to the respondent’s late husband.
In the address of the respondent, it was contended that the appellant did not prove by evidence that all nine sections of the Adegbayi family must concur in the disposition of family land citing Egesimba vs. Onuzuruike(2003) 13 WRN 78 at 108 and Section 149 (d) of the Evidence Act. More importantly, it was contended on respondent’s behalf that the action of the appellant is caught by the Provisions of Section 4 of the Limitation Law of Oyo State because the possession of the respondent and the Survey Pillars on the land date back to 1970 while the suit was instituted in 2005 citing Akibu vs. Azeez (2003) 5 NWLR (pt. 814) 643.
It was further argued that the respondent having been on the land since 1970 without interference from the appellants for over 35 years the appellants were affected by the doctrine of laches, acquiescence and standing by relying on Akpon vs. Cookey Gam 2 NLR 100, Sulieman vs. Johnson 13 WACA 213.

…………………….B…………………….

One significant procedural issue that arose in the case at trial was the statement of defence of the defendant which was not properly signed by a Legal Practitioner as envisaged by the Legal Practitioners Act but was signed by Messrs Tunde Gade & Co. 1st defendant’s solicitors a firm of solicitors. See cases of Okafor vs. Nweke (2007) 10 NWLR (pt. 1043) 521 at 534 and Peak Merchant Bank vs. Nigeria Deposit Insurance Corporation (2011) 12 NWLR (pt. 1261) 253 and Ogundele vs. Agiri & Anor. (2009) 12 S.C. (pt. 1) 135 at 165
The effect of the prohibition is that the statement of defence so signed was a nullity. However evidence was led by the defence and at the conclusion of evidence, the trial judge granted an amendment of the statement of defence. The appellants contend that the evidence led by the respondent go to no issue not being supported by a valid statement of defence and that the trial Court had no competence to grant an amendment in such circumstance.
On the action being statute barred, the trial judge on the evidence held that the respondent moved in to the land in dispute by virtue of a deed of conveyance Exhibit B in 1970 and the survey beacons buried on the land since 1970 remained on the land in addition to other acts of possession like erecting concrete pillars and claiming compensation in 1982. The Court found that the appellants??? action instituted in 2005 was 35 years after the cause of action arose when respondent went into possession by virtue of Exhibit B and physical occupation.
Relying on Ibrahim vs. JSC Kaduna State (1998) 14 NWLR (pt.584) 1 at 32 and Nwaogwugwu vs. President FRN (2007) 6 NWLR 4030 (Pt. 1030) 237 at 275 and the Limitation Law of Ogun State the trial Court held that the appellants action is statute barred.
In the alternative, the trial Court considered the case on the facts presented and found that even if the persons who sold the land, to the respondent had no authority of the entire family to sell, the appellants action would still fail as their action had become stale and that appellant had been caught by the doctrine of laches and acquiescence relying on Maji vs. Shaffi (1965) NMLR 33 at 37. 
On the grounds of the action being statute barred and lacking in merit, the trial Court dismissed the appellants suit.
Appeal
Being dissatisfied, the appellant lodged this appeal vide Notice of Appeal raising several grounds of appeal out which three issues were distilled namely:-
ISSUES FOR DETERMINATION
1. Whether by the state of pleadings and evidence led, the 1st Defendant could be held to have any Statement of Defence and led evidence to sustain it having regard to the irregular Statement of Defence filed after the close of trial, when the case had been adjourned for adoption of Written Addresses. (Covers grounds 1 and 8).
2. Whether the action of the Appellants is statute barred having regard to the state of pleadings and evidence led. (Covers grounds 2, 3, and 6).
3. Whether in a sale of family land, the onus is on the Claimant to approve that the land is a family land and those who sold the land to the Defendant has no authority to sell. (Covers grounds 4 and 5).
Argument on issues
The first issue relates to a procedural issue and would be disposed at first. The statement of defence filed by the respondent as defendant in the Court below was signed in the name of Tunde Gade & Co. which renders the pleading incompetent and a nullity. See Okafor vs. Nweke (2007) 10 NWLR (Pt. 1043) 521 at 534; Ogundairo vs. Onyekigbo (2005) 16 NWLR (pt. 950) at 80. The error persisted in the proceedings and the respondent led evidence on the ineffectual statement of defence. However sometime after evidence, the statement of defence was amended to correct the defect. Appellant have contend that the trial judge had no jurisdiction to grant the amendment.
The general rule is that the Court will grant an amendment for the purpose as ascertaining the real issues in controversy between the parties and in so far as the purpose of amendment is not to over-reach the adverse party, the Court will have jurisdiction to grant it Cropper vs. Smith (1884) 26 Ch.D 710 at 711; Jessica vs. Bendel Insurance Co. Ltd (1993) 1 SCNJ 240.
It may sometime happen that evidence is led without objection and received by the Court without supporting pleading. The practice has long developed that the statement of defence can be amended in order to embrace the evidence already led and the trial Court would be just entitled to allow such amendment. The amendment when made relates back to the original pleadings or claim

…………………….C…………………….

which must be regarded as having been discarded. Madam Sarufatu Salami & Ors vs. Summonu Eniola Oke(1987) 9-11 SC 43; Victor Adegoke Adewumi vs. Att. Gen Ekiti State.
The issue of penalty for late filing raised by appellant does not go to validity. With the amendment, the evidence of the respondent by DW1, DW2, and DW3 are amply supported by pleadings of the respondent.
This issue is therefore resolved against the appellants.
Issue No.2
The question raised in this issue raises important considerations in relation to presumptions of law in relation in communal ownership whether by a family or Village community.
Family land implied that the title is vested in the family or community and this raises presumption of Customary Law that in cases of family land holding the onus is on the defendant who asserts against the family to prove that there has been a conversion from family holding to individual ownership. See Eze vs. Igiliegbe (1952) 14 WACA 61. Iguh JSC in recent time re-echoed this principle in Stephen Onowhosa vs. Peter Ikede Odiuzou (1999) 1 NWLR (pt. 586) 173 at 190 thus:-
The law is well settled that where a plaintiff leads evidence that a land in dispute is communal property, the onus is on the defendant to establish that the land belongs to him exclusively. See Udeakpu Eze v. lgiliegbe (1952) 14 W. A.C.A 61; Atuanya v. Onyejekwe (1975) 3 S.C. 161 at 167. This onus, the defendants were unable to discharge in this case. I think both Courts below are right in holding that the land in dispute is in the communal ownership of both the appellants and the respondents.
The position under the law remain therefore that where family or communal land is in question, the onus of proving that there has been a conversion to the individual claimant is on that claimant but whether that onus was discharged in this case is now irrelevant as the trial Court found on the facts that the appellants case was stale and affected by the statute of Limitation of Ogun State. This was how the trial judge treated the matter.
Even if l am wrong in my finding above and that on the evidence before this Court, the claimant has proved that those who sold had no authority to sell or that the sale is void, are they entitle to succeed? I think not, first, their claim is stale. Secondly, the claimants in my view are caught by the doctrine of laches and acquiescence. It is my view and l so hold that it is not only when a party has built a house on a land that the other party claiming tilte will be guilty of acquiescence.
In Maji vs. Shaffi (1965) NMLR page 33 at 37, the Supreme Court held as follows:-
Now, in order to ground a plea of long possession showing acquiescence on the part of the other party, it is necessary to show that such possession as is relied upon was adverse and of such a character that the other party would be deemed to have actual or constructive notice thereof. On this point counsel for the appellant submitted that the Court should not have disturbed the long and uninterrupted possession of the appellant even in favour of the real owner of the land. There is number of legal authorities on this point, but is sufficient to point out here that in all the cases constituting the long line of decision on this point it was established that the possession relied upon must be adverse. Unless such possession was inconsistent with the right of the other party and was exercised in circumstances in which 
a Court of Equity would attribute actual or constructive notice thereof to the other party, it is difficult to see on what grounds any equities in favour of the person in possession can be predicated.
In the instant case, the defendant’s husband buried pillars on the land in dispute in 1970, erect a fence on the land in 1982, he collected compensation in respect of the demolished fence, and he instituted an action against a trespasser and obtained judgment in 1999. PW2 tried to avoid the truth when he was asked whether the Federal Government paid compensation to his family in respect of the land in dispute when the New Ife road was constructed by evading the question put to him by the defendant’s counsel. He even stated categorically that he would not answer the question. When he finally answered the question, he admitted the fact that the Federal Government did not pay compensation to his family in respect of the area verged red in exhibit A2 which is the area sold to the defendant’s husband in 1970. He could not say whether he was surprised to hear that the defendant’s husband was paid compensation in respect

…………………….D…………………….

of the part of his fence which was demolished for the construction of the road, he said he is less concerned. He said he and members of his family were aware of the construction of the road and were also aware that people whose houses, land and fences were affected by the construction of the road were duly compensated. PW2 is a journalist, he is therefore not illiterate, he knows the implication of someone collecting compensation in respect of land and a family who claim to own the land standing by, hence he did all he could to avoid answering the question but he failed. He is the same witness who was asked whether he was aware that the defendant’s deceased husband sued a trespasser to Court in 1999 on the land in dispute and won the case, he refused to answer the question. He said he did not want comment on the issue.
On the issue at hand (No. 2) while I agree that in a proper case, it is for the defendant to discharge the onus by evidence that the family ownership has been altered by purchase or otherwise, as I heighted earlier, in this case, the burden does not arise because the Limitation Law has taken away the cause of action of the appellants and the doctrine of laches, acquiescence and standing by has rendered the cause of action stale. This issue again is resolved against the appellants.
Issue No.3 
Whether the action of the appellant is statute barred having regards to the state of the pleadings.
The trial judge admitted in evidence a deed of conveyance Exhibit B which was executed in 1970. There was survey pillars buried on the land in 1970. In 1982 the respondents re-fenced the land after part was demolished by road construction. The respondent, the judge, found received compensation for damage done to the land in 1982. From 1970 (Exhibit B) or 1982 fence and compensation is a period of 35 and 23 years in 2005 when the action was commence. In either case, the 10 year period of Limitation had lapsed and the cause of action became extinguished by operation of law. The learned trial judge made those specific findings.
Where a Law provides for the bringing of an action within a prescribed period in respect of a cause of action accruing to the plaintiff, proceedings shall not be brought after the time prescribed by statute had expired. This means an action brought outside period offends the provision of the statute and does not give rise to a cause of action. See NPA PLC vs. Lotus Plastics. Ltd. 2005 ALL NLR 322; Congress for Progressive Change (CPC) vs. Independent National Electoral Commission & 41 Ors. (2011) 12 S.C. (pt. V) 80.
I find it difficult to fault the trial judge on the evaluation of facts which was accepted and justified the finding that action is statute barred. This last issue again lacks merit.
All the issues raised, having failed, the appeal is not sustained and lacks merit and is accordingly dismissed.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment of my learned brother Nonyerem Okoronkwo, JCA.
This appeal raises inter alia, fundamental issue which touches on the very root of the suit.
By the pleadings, the suit of Appellant hinges on a deed of conveyance (Exhibit B) executed in 1970. A suit which has limitation period of ten years (10 yrs.) which was commenced in 2005 against a grievance which occurred since 1982 most certainly was dead on arrival at the Registry of the trial Court such a suit is said to be statute barred or caught by the limitation period. (See BAUCHI STATE GOVERNMENT V. NPC & ANOR (2014) LPELR 23729 (CA).
A suit which has run out of time is like a lifeless electric wire – it has lost all its potency.
This appeal fails on this ground and the suit of the Appellant at the trial Court is hereby dismissed as stale.
HARUNA SIMON TSAMMANI, J.C.A.: I read in advance the judgment delivered by my learned brother, Nonyerem Okoronkwo, JCA.
My learned brother has ably and clearly resolved this appeal on the issue of the action filed by the Appellant being statute barred. It is beyond dispute that the cause of action in this case arose in 1970 when the Respondent’s husband exercised various acts of ownership on the land in dispute. By Section 4 of the Limitation Law of Oyo State, this action having been instituted in 2005 is statute barred. The Appellants’ right of action has therefore fizzled out, and the claim can no more be entertained.
I therefore agree that the appeal has no merit and is accordingly dismissed.

Appearances

Modupe I. Johnson Esq-.For Appellant

AND

Mrs. Yemisi Abimbola with him, Olabisi Oluyedun Alamu-For Respondent

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