Redefining The Law Of Limitation in Land Cases -By Ebun-Olu Adegboruwa, SAN
On Friday, December 18, 2020, the Supreme Court redefined the principles guiding the determination of limitation law in relation to land cases, in a landmark decision. Consequently, except in very rare cases in the remote parts of Nigeria, it will be very difficult henceforth, to revive litigation beyond the period permitted by statute, based on this latest decision. In the case of Oteri Holdings Limited v. Chief Mukaila Kolawole Oluwa & 10 Ors (For themselves and on behalf of the Oluwa Chieftaincy Family of Lagos and Apapa), the principle of law is now firmly established that the exception granted to file actions for declaration of title after the twelve-year limitation period is not applicable where the mode of acquisition of title is governed by English law. In other words, the usual reliance on customary law to file an action in court to claim title to land beyond the period permitted by the limitation law is now abolished for good. It was great reading and digesting the rationale given by their Lordships for this bold declaration of the law and I commend the decision to all those involved in real estate development and other stakeholders in the building industry.
The facts of this case as reported in Oteri Holdings Ltd v. Oluwa (2021) 4 NWLR (Pt.1766) 334 are as follows. In or about 1970, a dispute within the Oluwa chieftaincy family of Lagos and Apapa over the number of branches that constitute the family led to a suit at the High Court of Lagos State. While that suit was pending, three branches of the family, represented by the then head and other principal members, leased a portion of the family land at Industrial Road, off Kirikiri Road, Apapa to the appellant, who took possession thereof. The deed of lease dated 31st December, 1975 was subsequently registered in the Register of Deeds kept at the Land Registry, Ikeja, Lagos State. On 15th May, 1987, the High Court of Lagos State delivered judgment in the suit, holding that there are five branches of the Oluwa chieftaincy family. The defendants in that suit, who claimed three branches, appealed to the Court of Appeal, but the appeal was dismissed for want of diligent prosecution. A further appeal to the Supreme Court was withdrawn and was accordingly dismissed on 26th September, 1992.
On 25th September, 2004, the Lagos State Government approved the appointment of a new Oluwa of Lagos and Apapa, who thereafter constituted and inaugurated a fresh executive of the family, with members drawn from the five branches of the Oluwa chieftaincy family. Subsequently, the Oluwa chieftaincy family requested a meeting with the appellant to discuss the lease and as this was not granted, they filed an action against the appellant, by way of originating summons dated 22nd September, 2011, seeking an order of recovery of possession of the land. In their affidavit in support of the summons, they deposed to the fact that they were the descendants of the Oluwa chieftaincy family that owned the land at Apapa and its environs under native law and custom from time immemorial. On the other hand, the appellant filed a counter-affidavit and deposed that it was occupying the land in dispute with the consent of the Oluwa chieftaincy family in general, by virtue of the deed of lease dated 1975. The appellant also averred that the respondents’ suit for recovery of possession in respect of the deed of lease was statute barred. The High Court upheld the contention of the appellant that the respondents’ claim was statute barred under section 16 (2) (a) of the Limitation Law of Lagos State, on the ground that it should have been filed within twelve years after the Supreme Court dismissed the final appeal in the initial case on the intra-family dispute. The family’s appeal to the Court of Appeal was allowed, on the ground that their interest in the land enures under customary law and was not subject to or caught by the provisions of the Limitation Law, by virtue of the combined provisions of sections 16 (2) (a) and 68 )1) of the said Law. Being aggrieved with the decision of the Court of Appeal, the appellant appealed against it to the Supreme Court, which considered these two provisions.
Sections 16 (2) (a) and 68 (1) of the Limitation Law of Lagos State provide as follows:
“16 (2) (a) – The following provisions shall apply to an action by a person to recover land:
(a) Subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or if it first accrued to some persons through whom he claims, to that person.
68 (1) Subject to the provisions of subsection (2) of this section, this law shall not apply to actions in respect of any matter which immediately before the commencement of this law, was regulated by customary law.”
In a unanimous decision, the Supreme Court allowed the appeal, cleverly distinguishing the facts of this case from its previous decision in the case of Ogunlade v. Adeleye (1992) 8 NWLR (Pt. 260) 409, relied upon by the Court of Appeal. The Panel was presided over by the Honourable Justice Olabode Rhodes-Vivour, whilst the leading judgment was delivered by the Honourable Justice Amina Augie. I cannot but agree totally, with the reasons given for this landmark decision, as they are sound and logical. No doubt it will go a long way to affect many cases pending in the courts and indeed the capacity of many land owners to pursue their rights through the law courts. Before now, it is common with land-owning families all over the country to just wake up, comb the archives and dig up some history that will throw land transactions concluded many decades ago into needless controversies. Aided by very smart lawyers, descendants of many popular chieftaincy families in Lagos State in particular are in court, relying on customary law rights which devolved on them from their progenitors through ages. Personally, I have read so many traditional histories of families, some of which are so inconsistent with the existing trajectory of land ownership in Lagos and Yorubaland.
The apex court picked on the salient facts of the case, to determine the time of accrual of the cause of action, holding, most commendably, that right from 1992 when the Supreme Court decided the intra-family dispute involving the Oluwa chieftaincy family, their right of action against the respondent matured immediately.
“A cause of action accrues when there is in existence a set of facts giving rise to a right to sue and a person who can be and all facts have happened which are material to be proved to entitle the plaintiff to succeed. In this case, the respondents’ cause of action accrued on the dismissal of the appeal on the intra-family suit by the Supreme Court on 26th September, 1992.
“In this case, the subject matter of the litigation is a land situated in Lagos State, and the lease of the land to the appellant is governed by the general law. So, the respondents had twelve years to institute the action against the appellant to recover possession of the land leased to it by the Oluwa chieftaincy family. After the appeal against the trial court’s judgment on the intra-family suit was dismissed by the Supreme Court in 1992, the respondents could have taken steps to challenge the validity of the deed of lease, but they did nothing and only sought a remedy in 2011, nineteen years after. In the circumstance, the trial court rightly held that the action filed by the respondents to recover the land from the appellant was statute-barred. On the other hand, the Court of Appeal erred in holding that the exception in section 68 (1) of the Law applies to this case.”
More importantly however, is the judicial clarification of the mode of acquisition of title to land in relation to the issue of limitation of land law cases. The Supreme Court in this case held that under Nigerian law, land can be validly transferred or acquired in two distinct ways, either by: (a) customary law; or (b) under the received English law. In this case, the root of title to the appellant’s possession of the land in dispute is traced to the transaction under general law. The respondents never claimed that the transaction was executed otherwise and any reference to customary law was only as to the holding of the land and not the transaction with the appellant. So, the applicable law is the general law, which prescribes that the respondents should have filed their action in court within twelve years of the final decision of the Supreme Court on their intra-family litigation.
The rationale for this decision of the apex court is hinged upon the choice of the parties in the kind of land transaction they choose to bind them. Where it is land granted under customary law, such as customary tenancy or freehold, normally assigned in the presence of witnesses and at times accompanied with gifts, then any case arising therefrom can qualify for the exception created in section 68 (1), to enable the plaintiff take up the court case, even after twelve years. But where parties opt to transact under the general law by executing a deed of assignment, a lease or such other mode of conveyance created under the received English law, then such an action will be caught by section 16 of the Limitation Law, if it is not filed in court within twelve years of the accrual of the cause of action. This principle aligns with the same principle developed by the Courts for the determination of marital disputes. Once the couple elects to be married under the received English law, followed with the procedure at the Marriage Registry or church ceremony (white wedding), then such marriage will be governed by the general law and exempted from the application of customary law.
Why should this be so, you may ask me? According to the Supreme Court, the purpose of limitation law is that litigation shall be automatically stifled after a fixed length of time, irrespective of the merits of a particular case. The second point is that it is reasonable that a plaintiff should be prevented from prosecuting stale demands, in order to protect the defendant from disturbance after a long lapse of time when they have grown accustomed to their position or lost the evidence to defend it. We all wait to see how this decision will change the face of litigation, especially land transactions in urban areas.
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