BRIG GEN. O.B. OLORUNKUNLE (RTD.) & ANOR. V. ALHAJI ABAYOMI SHAKIRUDEEN ADIGUN & ORS.
BRIG GEN. O.B. OLORUNKUNLE (RTD.) & ANOR. V. ALHAJI ABAYOMI SHAKIRUDEEN ADIGUN & ORS.
In The Court of Appeal
Lagos Judicial Division
On Thursday, the 9th day of February, 2012
Suit No: CA/L/747/09
Before Their Lordships
JOHN INYANG OKORO ……. Justice, Court of Appeal
SIDI DAUDA BAGE ……. Justice, Court of Appeal
RITA NOSAKHARE PEMU ……. Justice, Court of Appeal
1. BRIG GEN. O.B. OLORUNKUNLE (RTD.)
2. XTADOK NIGERIA LIMITED – Appellants
1. ALHAJI ABAYOMI SHAKIRUDEEN ADIGUN (for and on behalf of ADIGUN FAMILY)
2. CHIEF AKEEM AGBOLADE OTEBIYA (for and on behalf of IDOWU OTEBIYA FAMILY)
3. ABDUL RASHEED ISIAKA (for and on behalf of SUAIB OGUNBIYI FAMILY)
4. PASTOR RASHEED RAMI (for and on behalf of ODUNIYI AN JOLAIYA FAMILY)
5. CHIEF NOJIU BALOGUN (SANNI BANKOLE FAMILY)
6. MR. RASAQ LASISI (IFASEMIRO LASISI FAMILY)
7. ALHAJI GAZAL DOSUNMU (LAWANI DOSUNMU FAMILY)
8. CHIEF SIKIRU JIMOH (JIMOH MOMOH FAMILY)
9, CHIEF RAFIU MOGAJI (MOGAJI FAMILY)
10. MR. RAFIU YUSUF (IBIJOKE FAMILY)
11. MR. KAMORU OLATUNJI (BOREKE FAMILY)
12. MR. GANIYU ABDUL (IGINLA FAMILY)
13. CHIEF NOJIU BALOGUN (BANKOLE FAMILY)
14. MR. SAHEED ADEROUNMU (ADEROUNMU FAMILY)
15. MR. ISIMAILA RUFAI (MOTIMOJU FAMILY)
16. MADAM SILIFATU LAWAL (BAMGBALA FAMILY)
17. MADAM MUTIAT OKETIRI (OKETIRI FAMILY)
18. THE ATTORNEY-GENERAL, LAGOS STATE
19. THE REGISTRAR OF TITLES, LAGOS STATE Respondents
Taiwo Kupolati Esq., K.U. Ani Esq., For the Appellants
G. K. Lawal Esq., B.E. Raimi (Miss) -For the Respondents
JOHN INYANG OKORO, JCA.: (Delivering the Leading Judgment): This judgment is in respect of an interlocutory appeal from the decision of the Lagos State High Court in suit No. LD/336/2006 delivered on 30th June, 2009 by Hon. Justice T. Ojikutu-Oshodi wherein the learned trial Judge refused to consider the issues raised in the application of the Applicants but rather directed that the issues be heard and determined together with the substantive case in view of the stage of the proceedings. A brief facts of the case are as stated below.
By a writ of summons dated 3rd March, 2006 and an amended statement of claim dated 7th December, 2007, the 1st to 17th Respondents, as Claimants at the court below, filed the action giving birth to this appeal and sought, among others, the following relief:
"A DECLARATION that the purported compulsory acquisition of the Claimant's land at Addo Town, Eti Osa Local Government by the Lagos State Government as published in the Lagos State Government Notice No. 36 in the official gazette No. 20 vol. 26 of 13th May, 1993 and official gazette No. 11 vol. 30 of 1 May, 1997 without notice of acquisition and compensation is illegal, null and void".
The Appellants who were the 3rd and 4th Defendants responded by fifing their statement of defence and other processes. The matter went through pre-trial proceedings and the pre-trial Judge recommended it for trial sequel to which it was assigned to the learned trial Judge herein. The Respondents listed four witnesses to be called while the Appellants listed one witness. The trial commenced and the Respondents called three of their four witnesses. At that stage the Appellants filed a motion on notice for amendment of their statement of defence and raised, for the first time that the suit was statute barred. The 1st to 17th Respondents filed their counter-affidavit against the motion contending that the suit was not statute barred. In a considered Ruling the learned trial Judge held as follows:-
"Obviously now that trial has commenced, the proper approach that better serves the overriding objective of the 2004 Rules is for the Claimants to close their case and for the Defendants to a/so adduce their own evidence including the issue of statute of limitation after which they would then adjourn for Judgment to determine all issues touching title to the land in dispute as well as the statute of limitation. The forensic value and advantage of this approach is that it allows this part heard stage of proceedings to deal in a just, efficient, speedy and economic manner with all the composite issues in dispute with finality. It is also economical because in having dealt with all the issues at one time the parties if they choose to go on appeal can take all the issues under one appeal rather than having a separate appeal on issue of limitation law and a separate appeal on issue of title to the land. Consequently, and on the foregoing the motion on notice dated 6/02/2009 filed by the 3rd and 4th Defendants/Applicants fails, it is refused and is hereby dismissed".
Dissatisfied with the Ruling of the learned trial Judge, the Appellants filed their notice of appeal on 13th July, 2009 which said notice contains three grounds of appeal. The learned counsel for the Appellants, Taiwo Kupolati Esq., has distilled two issues for the determination of this appeal, namely:-
"1. Whether the trial court did not err when it failed or refused to determine one way or the other the point of law raised by the Appellants pertaining to the Claimants/Respondents' action being statute barred under Section 16(2)(a) and 21 of the Limitation Law of Lagos State and pursuant to Order 22 Rule 2(1) and (2) of the Lagos State (Civil Procedure) Rules 2004. (Ground 1 of the Notice of Appeal).
2. Whether the Claimants/Respondents' action is statute barred. (Ground 2 and 3 of the Notice of Appeal)".
In the brief of the 1st to 17th Respondents settled by K. S. Lawal Esq., of counsel, it is stated on page 5, paragraph 3.1 as follows:
"The 1st to 17th Respondents adopt the two issues formulated by the Appellants".
The appeal shall therefore be determined based on these two issues. Before I proceed to resolve these issues, I wish to observe that the learned counsel for the Appellants has devoted paragraphs 4.6 on page 3 of his brief to paragraph 4.12 in page 5 of the said brief to canvas argument on the issue that the learned trial Judge suo motu raised the issue of the effect of order 1, Rule 1(2) of the High court of Lagos state (Civil Procedure Rules 2004) on the proceedings. But looking at the three grounds of appeal filed by the Appellants as contained in the Notice of Appeal, there is no ground which the argument on the issue of the Judge raising the point suo motu can be anchored. As there is no such ground of appeal, there is also no issue formulated which the argument can be based. The argument only surfaces from the blues and as it is, it lacks the ground or an issue to rest its feet. It is trite that all arguments in an appeal must necessarily flow from an issue for determination which must also be formulated from a competent ground or grounds of appeal. Where an argument is not related to an issue before the court which cannot be traced to any ground of appeal, such an argument is incompetent and ought to be discountenanced. See Ideozu v. Ochoma (2006) 4 N.W.L.R. (Pt. 970) 364; Mani v. Sliannono (2006) 4 N.W.L.R. (Pt. 969). That being the case all that argument contained in paragraphs 4.6 to 4.12 on pages 4 – 5 of the Appellants' brief are hereby discountenanced. And in any case, a court can only be accused of raising an issue or a matter of fact suo motu if the issue or matter of fact did not exist in the litigation. A court cannot be accused of raising an issue or a matter of fact suo motu if the issue or matter of fact exists in the litigation. A Judge by the nature of his adjudicatory functions can draw inferences from stated facts in a case and by such inferences the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. Moreover, where a Judge refers to a piece of legislation or rule of court which assists him to exercise his discretion one way or the other, he cannot be accused of introducing the rule of court suo motu. See Ikenta Best Nig. Ltd. v. Attorney-General Rivers State (2008) 6 N.W.L.R. (Pt.1084) 612 at 642 paragraphs A – C. I shall now consider the remainder of the arguments which relates to the first issue.
It was contended on behalf of the Appellants by their counsel that there is nothing in Order 1 Rule 1(2) of the Lagos State High Court (Civil Procedure) Rules 2004, hereinafter referred to as "the rules" which suggests and abrogation or nullification of Order 22 Rule 2(1) of the said rules. That the enforcement of Order 1 Rule 1(2) is a policy declaration of the object of the Rules to deal with all proceedings coming thereunder justly, efficiently and speedily. It was submitted that it was wrong for the learned trial Judge to rely on Order 1 Rule 1(2) to refuse to consider a point of law raised in the Appellants' pleading pursuant to Order 22 Rule 2(1) and pertaining to the incompetence of the main action on grounds that it is statute-barred.
Learned counsel further opined that each of the provisions of the Rules is intended to achieve justice if justly, efficiently and speedily enforced and that none of the provisions is intended to be subjugated to or undermined by the other. It was his view that the provision of Order 22 Rule 2(2) of the Rules of the Lagos State High Court is intended to be determined by the court once it is of the opinion that – "the decision on such point of law substantially disposes of the whole proceedings or of any distinct part thereof'. He submitted that rules of court must be wholistically interpreted relying on the case of Olaniyan v. Oyewole (2008) All FWLR (pt.399) 503 and Consortum M.C. v. NEPA (1991) 7 SCNJ 1.
Learned counsel reasoned that whereas Order 22 Rule 2(1) allows a party to raise by his pleadings any point of law and the Judge is duty-bound to dispose of the point so raised "before or at the trial", the trial court erred in not disposing of the point even when it was raised at the trial. He emphasized that the rules of court must be complied by the court and not to breach same relying on the case of Nnaji v. Chukwu (19s8) 3 N.W.L.R. (pt.81) 184. Also, that the issue raised before the court is that the action is statute barred. Being a weighty issue of law bearing jurisdictional significance, he contends that the lower court ought to have given it a hearing. It is his assertion that the posture taken by the learned trial Judge is a drawback for the 2004 Rules and a setback for the main action itself. He urged this court to resolve this issue against the Appellants.
In his reply, the learned counsel for the 1st to 17th Respondents submitted that the provision of the Rules of the High Court under which the Appellants brought their objection is order 22 Rule 2(1) and by it, the Judge has a discretion to dispose of the point of law so raised before or at the trial. The rule, according to him, gives the Judge a discretion as to when the point of law will be disposed of.
Learned counsel further contends that ground 1 (one) of the grounds of appeal is a ground of mixed law and fact as it requires the examination of Section 16(2)(a) and 21 of Limitation Law of Lagos State and Order 1, Rule 1(2) of the High Court Rules of Lagos State and that the discretion exercised by the Judge in postponing the determination of the matter to the end of trial as limitation of action, at times requires adducing evidence and a consideration of the pleadings especially the writ of summons and statement of claim to see if it was done judicially and judiciously.
The learned counsel submits that it is trite that a ground of appeal challenging the exercise of discretion by the lower court is a ground of mixed law and facts. Being a ground of mixed law and fact, counsel submits that the Appellants needed to obtain leave of the court below or this court for the appeal to be valid He opined that having not obtained the requisite leave, the ground of appeal ie., ground one, is incompetent and urged this court to strike out both the said ground one and issue one arising therefrom. He cites and relies on S.242(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the case of Ene v. Asikpo (2010) 10 N.W.L.R. (pt.1203) 477 at 509.
On the merit of the application he submitted that the discretion given to the learned trial Judge in Order 22 Rule 2 of the High Court of Lagos State Rules to dispose of the point of law raised "during trial" includes when the Judgment is delivered. He cites the case of Oyediran v. The Republic (1966) NSCC, 22 where the Supreme Court held that the trial of an accused person does not ends until the rendering of Judgment. He also cited the case of NAB Ltd. v. Barri Engineering Nigeria Ltd. (1995) 8 N.W.L.R (pt.413) 257
Learned counsel submitted further that even if a point of law is an issue of jurisdiction, it can be taken together with argument on the substantive matter. He relies on the cases of Amadi v. NNPC (2000) 10 N.W.L.R. (pt.674) 76 at 100; International Agricultural Industries Ltd. & Anor. v. Chuka Brothers Ltd. (1990) 1 N.W.L.R. (pt.1124) 1 N.W.L.R. (pt.319) 204
Referring to the case of Ikenta Best Nigeria Ltd. v. Attorney-General of Rivers State (2008) 6 N.W.L.R. (pt.1084) at 647, he urged this court not to set aside the exercise of discretion by the lower court.
In conclusion, he submitted that in this appeal, the main contention of the parties has to do with the date of the accrual of the cause of action. That whilst the Appellants contend that it was in 1993, the Respondents' pleadings show that it was in 2001. Learned counsel states that this difference can best be resolved after evidence has been taken by the trial Judge citing the cases of Kasandubu v. Ultimate Petroleum Ltd (2008) 7 N.W.L.R. (pt.1080) 274. He then urged this court to resolve this issue against the Appellants.
The Appellants herein had filed a motion on notice on 6th February, 2009 pursuant to Order 39 Rule 1 and order 22 Rule 2(1) & (2) of the High Court of Lagos State (Civil Procedure) Rules 2004 seeking for the following relief-
"AN ORDER setting down the point of law raised in paragraphs 22, 23 and 24 of the' 3rd and 4th Defendants amended statement of defence dated 3rd February, 2009 for hearing".
In her wisdom and absolute discretion, the learned trial Judge decided that the issue involved can conveniently be taken in the final Judgment and gave her reason as follows:-
"This is because it is already a part heard matter in which substantive plenary trial has commenced and the Claimants have already called 3 witnesses who have given evidence and who have been cross-examined by the 3rd and 4th Defendants counsel. The claimants have indicated that the 4th witness will be the last and their case will be closed."
Instead of abiding by the above directive of the learned trial Judge, the Appellants are before this court to challenge same. The provision of the Rules of the Lagos State High Court Rules, 2004, under which the Appellants brought their motion is Order 22 Rules 1 &2 and it states:-
"2(1) Any party may by his pleading raise any point of law and the Judge may dispose of the point so raised before or at the trial.
(2) If in the opinion of the Judge, the decision on such point of law substantially disposes of the whole proceedings or of any distinct part thereof, the Judge may make such distinction as may be just".
The above rule of court clearly and unequivocally gives the learned trial Judge a discretion to dispose of the point of law so raised before or at the trial. That is to say, the rule gives the Judge a discretion, depending on the facts available and other circumstances in the case, as to when the point of law will be disposed of. As was rightly pointed out by the learned counsel for the Respondents in their brief, Ground 1 in the Notice of Appeal from which issue No. 1 under consideration is distilled from, is challenging the exercise of discretion by the learned trial Judge and the circumstances under which she exercised her discretion.
It has long been held that a ground of appeal challenging the exercise of discretion by the lower court is a ground of mixed law and facts in view of the fact that in such a situation, this court or an appellate court will be bound to look at the surrounding circumstances to determine whether the lower court exercised the discretion judiciously and judicially.
In the instant case, there is no way the exercise of discretion of the lower court can be examined without looking at the law i.e , Section 16(2) and 21 of the Limitation Law of Lagos State and Order 1, Rule 1(2) and order 2 Rules 1 & 2 of the High Court of Lagos State (Civil Procedure) Rules and the facts of this case to determine whether the lower court was right in postponing the time the point of law raised would be determined. Clearly the ground of appeal is that of mixed law and fact.
By section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), this ground of appeal ought to have been filed with the leave of either the High court or of this court. The section states:-
"242(1) Subject to the provision of section 241 of this Constitution, an appeal shall lie from decisions of the Federate High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or the High Court or the Court of Appeal".
What then is the effect of filing a ground of appeal of this nature without obtaining the leave of court? It has been held in a long line of cases that such a ground of appeal is incompetent and is liable to be struck out. See Abdulsalam v. Salawu (2002) 13 N.W.L.R. (pt. 785); (2002) 6 SC (pt.11) 196; Yaro v. Arewa Construction Ltd. (2008) All FWLR (pt. 400) 603 at 623 paragraphs E – F; Erisi v. Idika (1987) 4 N.W.L.R. (pt.66) 503; Opuiyo & 2 Ors. v. Omoniwari & Anor. (2007) 6 SC. (pt.1) 38.
I observed that the learned counsel to the Appellants did not react to their failure to obtain leave before filing this appeal. I do intend to speculate on the reason he failed to reply to this weighty submission.
Maybe it is because the Respondents did not comply with order 10 Rule 1 of the Court of Appeal Rules by giving the Appellants at least three clear days notice before the hearing of this appeal. Maybe.
Let me emphasize here that the requirement for leave to be obtained, before filing this appeal, is a constitutional requirement. Therefore where a party fails to comply with a constitutional requirement in the process of filing his case or an appeal thereof, even where the other party fails to raise the issue for consideration at the trial, the court can raise the suo motu because it goes to the jurisdiction of the court. This ground of appeal, no doubt, is incompetent and is liable to be struck out including the issue distilled therefrom.
Whenever a plea that an action is statute barred is raised at the trial, as in this case, the court is to determine when the cause of action arose and when the suit was filed. The court must decide by looking into the statement of claim for the date when the cause of action arose, and the writ of summons for the date when the action was filed. However, where the date as to when the cause of action arose is disputed by the parties, the trial court should not determine the issue until evidence has been called on the issue. See Kasandubu & anor. v. Ultimate Petroleum Ltd. & Anor. (2008) 7 N.W.L.R. (pt.1086) 274. In the instant case, whereas the appellants have pleaded that the cause of action arose in 1993, the Respondents however plead that the cause of action arose in 2001. This is an issue which evidence has to be taken and resolved before a court can decide whether the action was statute barred or not.
Based on the above analysis, I am of the view that the learned trial Judge was on firma terra in holding that the matter could be taken in the final Judgment so as to allow evidence on the issue to be adduced and considered. This exercise of discretion by the learned trial Judge is unfettered and unassailable.
The suit giving birth to this interlocutory appeal commenced in 2006 i.e. about six years ago and at the time the Appellants decided to file the interlocutory appeal, the Respondents had called three of their four witnesses and the Appellants had only one witness to call. Had the Appellants allowed the wisdom of the lower court to prevail, by now, hopefully, the final Judgment could have been written and parties would have been in a position to know their fate one way or the other. The objective of Order 1 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004 would also have been met. But as it is, this case may stay a little longer in the courts.
It is instructive that the Supreme Court has given support to the position taken by the learned trial Judge in that an objection to jurisdiction where facts are needed to resolve it can be heard together with the substantive matter and an appeal taken together if need be. In Amadi v. NNPC (2000) 10 N.W.L.R. (pt.674) 76 at 100 Uwais, JSC (as he then was) stated thus.
"It has thus taken thirteen years for the case to reach this stage. With the success of the Plaintiff's appeal before us the case is to be sent back to the High Court to be determined, hopefully, on the merit after a delay of 13 years. Surely this could have been avoided had it been that the point was taken in the cause of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on the merits in the proceedings as the case may be I believe that counsel owe if as a duty to the court to help reduce the period of delay in determining cases in our courts by avoiding unnecessary preliminary objections as the one here, so that the adage justice delayed is justice denied' may cease to apply to the proceedings in our courts."
I agree as I am bound.
Even as far back as 1990, the Apex court in International Agricultural Industries Ltd. & Anor v. Chika Brothers Ltd, (1990) 1 N.W.L.R. (pt. 124) 81 held that parties should not throw to the wind the wisdom of leaving the prosecution of issues or points that can be taken advantageously after the final decision of the High Court till the High Court has given its final decision and appeal against the decision is lodged. See also Olu of Warri v. Nnaemeka-Agu (1994) 1 N.W.L.R. (pt.319) 204.
Therefore, even on the merit, this issue cannot avail the Appellants since the court below acted in line with the above admonition of the Supreme Court. Again, where a matter depends on the exercise of the discretion of the trial court, an appellate court will rarely, if at all, interfere with the decision of the trial court and an appellate court is not entitled to substitute its own discretion for that of trial court. In other words, an appellate court will not interfere simply because faced with a similar situation it would have exercised its discretion differently. See 7-up Bottling Company Ltd. & 2 Ors v. Abiola & Sons Nig. Ltd. (1995) LPELR-SC.191/1989; Adejumo v. Ayantegbe (1989) 3 N.W.L.R. (pt.110) 417; Ceekay Traders Ltd. v General Motors Ltd. (1992) 2 N.W.L.R. (pt.222) 132. I need not say more on this issue.
The Appellants on the second issue has asked the question, "whether the Claimants'/Respondents' action is statute barred". He went on to ask this court to invoke section 15 of the Court of Appeal Act and hear this matter. I wish to observe that this matter is still pending at the court below and I have held while resolving the first issue that there is need to take evidence before the matter can be resolved. This court, is therefore not in a position to take evidence in order to resolve this matter' I rather leave it to the trial court which is properly positioned and equipped to handle such matters.
In their various briefs, issues of possession or adverse possession, giving of notice, proper or improper acquisition and others are there to be decided based on evidence before the court. Therefore, there are not enough materials in this court to undertake such an exercise. Therefore, I shall refuse to take over the job of the learned trial Judge in the circumstance. I rather leave it to the trial court. I so hold.
In the final analysis, I hold that this appeal lacks merit and is hereby dismissed by me. Suit No. LD/336/06 is hereby remitted back to the High Court of Lagos State for continuation of hearing before the Hon. Justice T. Ojikutu-Oshodi who has already taken three witnesses. Where the learned trial Judge is no longer available, the Chief Judge of Lagos State shall assign the case to another Judge of the Lagos State High court for hearing de novo. I shall award N30,000.00 costs against the Appellants in favour of the 1st- 17th Respondents only. The 18th & 19th Respondents did not file any brief in this appeal.
SIDI DAUDA BAGE. JCA.: I had the honour of reading in draft the judgment of my learned brother J.I. Okoro, JCA, which I am in complete agreement with. I intend to add just a few words of my own on the proper exercise of court's discretion.
For judicial discretion to be properly exercised, it must be founded upon the facts and circumstances presented to the court' from which the court must draw a conclusion, governed by law, and nothing else. The exercise of that discretion must be honest and in the spirit of the statute, otherwise any act so done will not find a solace in the statute and such a discretionary act must be set aside. It therefore follows that where a judicial discretion has been exercised bonafide, uninfluenced by any irrelevant considerations and not arbitrarily or illegally, the general Rule is that an Appellate Court will not ordinarily interfere. Legal discretion or what is termed in latin maxim as "Legalis Discretio" requires a court or a Judge to administer justice according to prescribed Rule of Law. See:- Ebe vs. Commissioner of Police (2008) 1 SC (Pt.11) 194.
For the detail reasons as contained in the lead judgment, I too hold that, this appeal lacks merit, and is hereby dismissed by me. I abide with the consequential order as contained in the lead judgment.
RITA NOSAKHARE PEMU. JCA: I have read in draft the Judgment just delivered by my brother John Inyang Okoro JCA.
I agree with the reasoning and conclusions arrived at, and I adopt same as mine.
I subscribe to the consequential order made that appeal lacks merit and same is hereby dismissed with N30,000.00 costs in favour of the 1st – 17th Respondents only.