Differentiating Between the Applicable Law in Customary Land Transactions

In the Supreme Court of Nigeria Holden at Abuja On Friday, the 18th day of December, 2020

Before Their Lordships

Olabode Rhodes-Vivour

Musa Dattijo Muhammad

Kudirat Motonmori Olatokunbo Kekere-Ekun

Amina Adamu Augie

Ejembi Eko

Justices, Supreme Court

SC.636/2015

Between

OTERI HOLDINGS LIMITED APPELLANT

And

1. CHIEF MUKAILA KOLAWOLE OLUWA

(The reigning Oluwa of Lagos and Apapa)

2. DR. AKEEM OSENI (Odofin Branch)

3. MR. JAIYE OLUWA (Odofin Branch)

4. ALHAJI IMAM ISHOLA AKAPO (Asalu Branch)

5. ENGINEER WAHEED BAKARE OLUWA (Asalu Branch)

6. CHIEF NASIRU OLUWA (Idewu Branch)

7. PRINCE BABAJIDE SUMONU (Idewu Branch)

8. MR. ABIODUN TIJANI OLUWA (Amore Branch)

9. MR. SALISU OLUWA (Amore Branch)

10. ALHAJI AKEEM OTOTO (Faro Branch)

11. DR. MONDIU BABATUNDE SARUMI(Faro Branch) RESPONDENTS

(For themselves and on behalf of the Oluwa

Chieftaincy family of Lagos and Apapa)

(Lead Judgement delivered by Honourable Amina Adamu Augie, JSC)

Facts

In 1970, a dispute arose within the Oluwa Chieftaincy Family of Lagos and Apapa, over the number of branches that constitute the family. This led to the institution of Suit No. LD/828/70 at the High Court of Lagos State. In 1975, and while the suit was pending, the Appellant acquired a leasehold over a portion of land at Industrial Road, off Kirikiri Road, Apapa, belonging to the Respondents’ family and took possession following the transfer of the property by the then Head of Oluwa Chieftaincy Family and six principal members of the three branches of the family. The said lease was duly registered in the Register of Deeds at the Land Registry, Ikeja, Lagos.

Judgement in Suit No. LD/828/70 was delivered on 15th May, 1987. Therein, the court held that there are five branches of the Oluwa Chieftaincy Family namely – (i) Asalu; (ii) Odofin; (iii) Idewu; (iv) Faro; and (v) Amore. The appeal lodged at the Court of Appeal was dismissed for want of diligent prosecution, and the decision went on appeal to the Supreme Court, but the appeal was withdrawn and dismissed on 26th September, 1992.

Following the appointment of the First Respondent (from the Odofin branch) as the new Oluwa of Lagos and Apapa by the Lagos State Government on 25th November, 2004, he constituted and inaugurated a fresh executive of the family with members drawn from the five branches, in line with the decision of court. Thereafter, the Respondents requested a meeting with the Appellant in respect of the lease granted to it in 1975, but the Appellant refused to honour the invitation. The Respondents therefore, filed an action by way of Origination Summons dated 22nd September, 2011, at High Court of Lagos State, seeking to recover the piece of land the family leased to the Appellant. The Appellant countered that the Respondents’ action, was statute barred. The trial court raised suo motu, the issue of whether the lease of the land to the Appellant was created lis pendens, and invited parties to address it on the issue. In his decision, the learned trial Judge held that from the date of the decision of the Supreme Court in 1992, the coast became clear for anyone in the Respondents’ family to challenge the disposition of the family land based on the three branches representation, and which was upturned by the High Court in favour of five branches. The court held that, by the provision of Section 16(2)(a) of the Limitation Law, the Respondents ought to have filed the action within twelve years from the date of the decision of the Supreme Court in 1992. The trial court concluded that the action was statute barred, and afortiori, incompetent. On the issue of lis pendens, the court held that Suit No. LD/828/70 was neither about the sale of any real property nor recovery of possession or declaration of title; thus, the doctrine of lis pendens did not apply.

The decision above was successfully challenged, at the Court of Appeal. The appellate court, in upturning the judgement of the trial court, reasoned that the trial court failed to read the provisions of Section 16(2)(a) together with Section 68(1) of the Limitation Law of Lagos State, to determine the Respondents’ customary rights to the land in dispute. The court held that in view of Section 68(1) thereof, the Respondents are not debarred from claiming their customary rights to the land, and that the action was not caught up by the Statute of Limitation. Regarding the issue of lis pendens, the Court of Appeal held that the Claim of the Respondents being recovery of land, is a claim to real property and not personal property; therefore, the doctrine of lis pendens applies.

The Appellant, who was aggrieved by the judgement of the appellate court, appealed the decision to the Supreme Court, while the Respondents filed a Cross-appeal on the decision about lis pendens.

Issue for Determination

Two main issues were formulated for determination of the court. However, the Supreme Court adjudged the second issue as academic, after consideration of the issue below:

Whether the learned Justices of the Court of Appeal were right in holding that the provisions of Section 68(1) of the Limitation Law of Lagos State is applicable to the Deed of Lease dated 31/12/1975, executed under the general law by the head and principal members of the Respondents’ family.

Arguments

Counsel for the Appellant argued that the Court of Appeal wrongly applied the provisions of Section 68(1) of the Limitation Law of Lagos State, and that for the said provision to be applicable, the transaction in question must be regulated by Customary Law. Counsel submitted that the framers of the said Section 68(1) could not have intended that owners of land held under Native Law and Custom, cannot for all purposes, transact outside Customary Law; and that it will amount to an absurdity if the said provision is construed to mean that customary land owners are denied the right to transact outside Customary Law. He relied on the authority of A-G, ADAMAWA STATE v A-G, FED. (2014) 4-6 SC 127, in support of his position that three conditions must come to play in determining whether an action is caught by a Statute of Limitation. Counsel contended that the cause of action in this case, was not in respect of any customary tenure between the parties, but arose from the Deed of Lease, which is governed by the general law. Thus, the cause of action accrued on 26th February, 1992 when the Supreme Court in Appeal No. SC.253/1991, paved the way for an aggrieved branch of the Respondents’ family to commence an action for recovery of possession of the land, acquired under the Deed of Lease in 1975.

Negating the position of the Appellant, Counsel argued on behalf of the Respondents that the conclusion reached by the Court of Appeal was “orthodox and correct”. He submitted that the claim of the Respondents was for possession of land held under Native Law and Custom, and provided for under Section 68(1) of the Limitation Law of Lagos State. Counsel argued further that by the relevant provision, the phrase used is “in respect of any matter” and that the said provision does not make reference to “cause of action”. Hence, it is the underlying nature of the matter that must be considered, and not simply the cause of action. He submitted further that in construing provisions of a Statute, clear and unambiguous words must be given their natural and ordinary meaning, save for where it would lead to absurdity or injustice – AMOBI v NZEGWU (2014) 2 NWLR (Pt. 1392) 510. Counsel reasoned that since the claim of the Respondents is on a matter regulated by Customary Law, then Section 68(1) is applicable in the instance.

Court’s Judgement and Rationale

Deciding the main issue, Their Lordships highlighted the provisions of Section 16(2)(a) of the Limitation Law of Lagos State, which provided for a twelve-year limitation period for an action for recovery of land, and Section 68(1) thereof, which provides that the limitation law shall not apply to actions in respect of any matter which immediately before the commencement of the law, was regulated by customary law.

The court noted that the purpose of limitation laws, expressed in the Latin phrase – interest rei publicae ut sit finis litium, is that litigation shall be automatically stifled after a fixed length of time, the merit of the case notwithstanding. Another factor is the need to prevent Plaintiffs from prosecuting stale demands, and protecting Defendants from disturbance after a long lapse of time after being accustomed to their position, or lost the evidence to defend it – AMADI v INEC (2012) LPELR-7831(SC).

The issue in contention between parties in this case, is whether the action filed by the Respondents is statute barred because the cause of action arose from the Deed of Lease which is governed by General Law, or that the action is not statute barred because the claim was for possession of land held under Native Law and Custom. Under the Nigerian Law, transfer of land can either be under (i) Customary Law; or (ii) Received English Law. There is also the need to distinguish the nature under which land is held (the Respondents’ land is held under Customary Land Law), and the nature under which the said land is transacted (either in a lease, tenancy or alienation). In this case, the land devolved on the Respondents as descendants of Amodu Tijani, but the transaction was executed under General Law as shown in the Deed of Lease. It is trite that requirements guiding the transaction of customary land, are distinct from that under general law – ABIOYE v YAKUBU (1991) 5 NWLR (Pt. 190) 130.

The root of title to the Appellant’s possession of the land, is traceable to the transaction under General Law. It is not the case of the Respondents, that the transaction was executed otherwise. The reference of the Respondents to Customary Law relates only to the holding of the land, and not the transaction with the Appellant. It follows that the applicable law, is the General Law. A follow-up issue is when did the cause of action accrue, having established that the General Law is the applicable law.

A cause of action is the bundle or aggregate of facts, which gives the Plaintiff a substantive right to make the claim for the relief sought. In this case, it is clear that the cause of action is not founded on the ownership or devolution of the land to the Respondents. The disagreement over the number of branches of the Oluwa Chieftaincy Family was the subject of the 1970 suit, and the transaction in dispute here was entered into with the Appellant by the three branches of the family then, before the subsequent judgement of court to the effect that there are five recognised branches of the family. Thus, the cause of action in relation to the Respondents, challenging the Deed of Lease executed by a fraction of the Respondent’s family, further to the decision of the Apex Court in the matter, accrued in 1992 upon the dismissal of the appeal of the Oluwa family. However, the Respondents slept and woke up from their slumber only in the year 2011, to file the action leading to this appeal.

The action was filed in contravention of Section 16(2)(a) of the Limitation Law, having been filed after a period of nineteen years. The Respondents’ suit was statute barred by Section 16(2)(a) and so, their claim became extinguished and unenforceable.

Appeal Allowed; Cross-Appeal Struck Out.

Representation

I.A. Ovbagbedia for the Appellant.

Adebayo Oyagbola for the Respondents.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An Affiliate of Babalakin & Co.)