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withdrawn and was accordingly dismissed on 26th September,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.

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.