Jimoh Adekoya Odubeko v. Victor Oladipo Fowler & Ors

I have read the judgment of my learned brother Onu, J.S.C. in this appeal. I agree with the reasoning and conclusion that this appeal should be dismissed. I only wish to make my contribution to the effect of the defence of the Limitation Law of Lagos State on the action of the plaintiff. In my view a successful defence based on the provisions of sections 16(2)(a) 19(1) and 21 of the Limitation Law determines the action in favour of the defendant/respondent.

This appeal is against the judgment of the Court of Appeal Lagos State Division, which on the 17th June, 1986 allowed the appeal against the judgment of W. Ajao Oshodi J. of the High Court of Lagos State delivered on the 8th day of October, 1982.

THE FACTS

Plaintiff in a writ of summons dated 16th Nov., 1977, brought an action against the defendants claiming a declaration of title to a piece or parcel of land situate, lying and being at No. 20 Idera Street, Palm grove, Mushin West, Lagos State. There was a claim for N200 general

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damages for trespass and an injunction restraining the defendants, etc. from committing further acts of trespass on the said land. The action was tried on pleadings.

In their pleading and oral evidence before the court at the trial, it was common ground that the land in dispute originally was part of a very large piece of land belonging to the Ojomo Eyisha Family.

Plaintiff traced his title to the Ojomo Eyisha family, through Larinde Agba, who in 1910 had bought a piece of land measuring about 41,786 acres including the land in dispute. In 1912 Larinde Agba sold this land to Emmanuel Seton. In March, 1936 the land was sold by Public Auction to Messrs J. O, Adewunmi and J. A. Adebiyi pursuant to an Order of Court to satisfy judgment debt incurred by Emmanuel A. Seton in Suit No. 169/1932 – Bello Larinde v. Emmanuel Seton. In 1938 a certificate of purchase was issued to Adewunmi and Debiyi and in whose names the land was duly registered.

In 1944, Adewunmi and Adebiyi sold the land to Mrs. Janet Ebun Adesola Wilson. On the death of Mrs. Wilson and her husband Ezekiel John Adeyinka Wilson, letters of administration were taken out by their blood relations, that is Thomas Abisola Olayide Wilson, Mrs. Elizabeth Kofoworola Adewunmi, Nathaniel Akinbowale Williams, and Alhaja Aminatu Alake Idris. The administrators of the Estate who took possession of the land, sold part of it to the plaintiff in 1970 when in 1977 plaintiff wanted to erect a building on the land sold to him, he was obstructed by the defendants. He then brought this action.

On their part, defendants, as plaintiff have also traced their root of title to the same Ojomo Eyisha Family, in

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Their claim is that in 1913, one Larinde Jaguniwon (probably the same as plaintiffs Larinde Agba) bought from the Ojomo Eyisha Family under customary law, a large piece of land, of which the land in dispute is a part. In 1915 Larinde laguniwon sold the land to one Abudu Kadiri. Kadiri later transferred the land to Dorcas Bukosi Seton, the mother of Emmanuel Seton, through who plaintiff claims. Dorcan Seton caused the land to be laid out into plots and sold through her agent, Mr. J. O. Ogundipe.

In 1939. Cornelius Kolade Fowler, father of the defendants bought plots 124 & 125 measuring SO’ x 100′ each. He was put in possession of the two plots. He later built on the land. He completed the house he built on the land in 1945 and let the rooms to tenants. On the death intestate of Cornelius Kolade Fowler, the defendants succeeded him under customary law.

As I am concerned in this judgment only with the defence of limitation, I shall confine myself essentially to the pleadings raising the defence, and the evidence in support of the pleadings.

In the amended statement of defence, it was pleaded as follows:

“5. The said Larinde sold the same to one Abudu Kadiri in fee simple sometime on 23/12/1915 and later the same was transferred to one Dorcas Bukosi Seton and was put in possession thereof.

6. The said Dorcas Bukosi Seton caused the hereditaments to be laid out into plots and caused the same to be sold by auction by one Mr. J. O.Ogundipe whereby the defendant’s father became the purchaser of

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Plots No. 124 and 125 measuring 50′ x 100′ each and a receipt No. 44 of 24th August, 1939 was issued to the said purchaser who was put in possession of the same. The defendants will rely on this receipt.

7. After the defendants’ father had been in possession for some time and in 1943 caused a conveyance of the same to be prepared and was registered as No. 91 at page 91 in Volume 661 of the Lands Registry in the office at Lagos.
8. That the said Late C.K. Fowler erected a residential building on a portion of the land with an approved building plan in 1945 plan No.B.A. 126/45. The defendants will rely on this plan.
9. Since the completion of the building in 1945 the defendants’ predecessor in title has been in undisturbed possession of the land including the portion built upon.
10. The defendants’ predecessor had been letting the house to tenants and amongst the tenants was one Kosoko Gbadebiyu who owned No. 27 Idera Street, Odiolowo, a contiguous property. The defendants will rely on suit No.ID/24n4 between T.A.G. Wilson and E. K. Adewunmi (Adm. of Mr. & Mrs. Wilson) v. Kosoko Ghadebiyu.
11. The defendants aver that the land in dispute belong to one Madam Dorcas Bukosi Seton on her right by purchase for value and she was in possession for a long period before parting the same to the defendants’ father in 1939 as per the purchase receipt pleaded in paragraph 6 above.
12. The defendants will also rely on long possession, Limitation Law, Laches and all equitable defences etc.”

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These averments remained unanswered by the plaintiff in his amended pleadings. At the trial defendants led evidence in support of the averments. It is important and relevant to the defence raised to refer to the evidence of D.W.1, D.W. 2 and D.W.5.

In examination-in-chief, Victor Oladipupo Fowler testifying as D.W.1 said,

“There are tenants staying in the concrete building. My brother and I collect rents every month from the tenants in respect of the building. One of the tenants is Chief Gbadabiu Kosoko (sic) another tenant is Mr. Oghen, who lives in the temporary (sic) building.

My brother and I own the property together after the death of our father (sic) we found documents relating to the property in dispute in the wardrobe. My brother and I are the only two surviving children of our late father C. K. Fowler. When we found the documents we took the conveyance executed in favourof our father and the other documents to the Lands Registry, Lagos, to process …….. I first went on the land in dispute in 1950 with my father and there was then the only concrete building.”

D.W. 2, Chief Gbadabiu Kosoko corroborating the evidence of the defendants said:

“I know Emmanuel Seton. I also know his mother Dorcas Seton. Dorcas sold land to me. Fowler also bought from Dorcas.”

D.W. 5 had testified as follows:

“20 Idera Street is a large tract of land which was sold by Ojomo Eyisha Family to one Larinde who in turn sold to Kadiri and from Kadiri to Dorcas Bukosi Seton. Dorcas Seton then caused the land to be laid out in plots. These

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plots were auctioned by Joseph Ogundipe and my late father bought plots 124 and 125…………….My late father also obtained a conveyance from Ogunbayode and Dorcas Seton. This is a certified true copy of the conveyance, Exhibit ‘L’.

In 1946 my father put up a building on the land and the building is still in existence till this moment……….my father died in December, 1962 with two of us surviving him, the 1st and 2nd defendant (sic) respectively. I have been going on the land since 1950. On several occasions I went with my dad to collect rents and to effect repairs.”

The learned trial Judge rejecting the defence that the Limitation Law applied, observed:

“It is also admitted in paragraph 20 of the amended statement of defence as follows -that the plaintiffs’ purported predecessor – in title, Mrs. Ebun Adesola (deceased) in her life time made enquiry from the defendants’ predecessor-in-title as to his right to possession and title over the land in dispute. This act in my view shows a claim to possession. There is no evidence led by the defendants to establish that the claim was ever restored in favour of their late father.”

Subsequent thereto, and referring to conveyances in favour of the defendants, the learned Judge added.

“There are Exhibit ‘L’ and ‘U’ which I have dealt with and I could not accept that the defendant’ predecessor-in-title had anything since 1944. but from the evidence led assuring that defendants’ predecessor was on the land in 1944, they (the defendants) in their amended statement of defence in paragraph 20 admitted that the right of their father was challenged by Mrs. Ebun Adesola who died in

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obviously the right of their father had been challenged ever since he thought he became possessed of the land”

The learned trial Judge finally concluded.

“Applying the facts in this case to the law as is set out above, it is my view that the facts do not amount to estoppel by conduct on the part of the plaintiff. The plaintiff and his predecessor-in-title did all within their power to apprise the defendants and their predecessors of his claim to the property, but in spite of that knowledge they embarked on the erection of the building. From the evidence or the 1st, 2nd and 5th D.W. it is clear that the building was put up around 1950 and that will be nearly two years after the death of Mrs. Ebun Adesola Wilson who died in 1948. It is also my view that the money was expended with knowledge of the real state of the title and I am reinforced in this belief by the urge of the defendants in preparing Exhibit M instead of going to Court for declaration of title. The defendants had actual and constructive notices of the plaintiffs’ title, hence they will be precluded from raising the defence of an estoppel.”

It is clear from the conclusion of the learned Judge that he was concerned only with the defence of estoppel. He did not properly advert to the issue of limitation of time raised in paragraph 20 of the amended statement of defence. The learned trial Judge was right ill his conclusion that the claim of the plaintiffs’ predecessor-in-title to the land in dispute was not resolved. He was however wrong in his view that the feeble confrontation which was not even sustained was any challenge to the assertion of the possession by C.K. Fowler, the defendants’ father. It is

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this defence available to the defendants on the evidence before the learned Judge which the Court of Appeal relied upon ill reversing the decision of the learned Judge. Nnaemeka-Agu, J.C.A. (as he then was), reading the judgment of the Court correctly observed:

“But by far the most glaring error of the learned Judge is in the way he handled the limitation of action pleaded and relied upon by the appellants. He simply considered possession by the appellants alone, and not that of their father and held that the action was not barred by statute. In my view he should have considered that by their father and their predecessors-in-title also. As I have said, appellants’ father had been in continuous possession at least since 1946 when he built a house on the land. But this action was filed on the 16th November, 1977, that is after a period of 31 years. Evidence of the 1st, 2nd, 3rd and 5th defence witnesses as well as Exhs. Q,R.J. and M. put it beyond question that he and his successors-in-title (appellants) have been in continuous possession or the land in dispute since then, Their possession is clearly adverse to the respondents and his predecessor-in-title. Ebun Adesola Wilson did not institute any action against the appellants’ father till she died in 1948. There is evidence that she knew of appellants’ father’s presence on the land. All that her executors could boast of was that they issued warning notices. Exhs. J-12 in 1960; 1969; 1970; but clearly these do not amount to instituting a suit…………….It is clear from the evidence outlined above that the appellants and their predecessors-in-title have been in adverse possession of the land in dispute since at least 1946, that is at least 31 years before the institution of this suit.”

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The Court of Appeal then pointed out that the answer to the effect of the above facts will be found in the provisions of section 16(2)(a), 19(1) and 21 of the Limitation Law Cap. 70 Laws of Lagos State 1973. After setting out the above sections, the Court went on to observe, in part, as follows:

“It is clear from the facts outlined above that the respondents’ suit is caught by the statute. The effect is not only that he cannot sue at the time he went to court, but that by the provision of section 21 of the Law, his title had been extinguished. See on this Mrs. GAR. Sosan & Ors v. Dr. M.B. Ademuyiwa (supra).”

The Court accentuated the difference between the effect of section 21 of the Limitation Law Cap. 70 of Lagos State which extinguishes a pre-existing right and many other similar laws including the Public Officers Protection Act, 1958, Cap 168, which merely destroys the remedy and not the right by providing that “no action shall be brought” or that “no proceedings shall lie” and concluded as follows:

“It follows, therefore that at the time the respondents, as plaintiffs, went to Court, if he had any title to the land in dispute it had been extinguished.”

Learned counsel to the appellant has challenged this conclusion of the court below of the application of the Limitation Law. It was submitted that the Court below failed to ascertain the punctus temporis of the accrual of the right of action of the plaintiff or his predecessors-in-title. It was also submitted that there was no evidence on the record that plaintiff or his predecessor-in-title in

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possession of the land in 1946 failed to take action against the defendants. Referring to the evidence of the plaintiff and his witnesses, learned counsel to the appellant submitted that on the evidence before the trial Court, the right of action could not have accrued to the plaintiff until 1977. This was when plaintiff was disturbed by the defendants. It was submitted that there was no evidence to support the finding by the Court of Appeal, that Ebun Adesola Wilson, predecessor-in-title of the plaintiff who knew of the presence on the land of the defendants’ father in 1946 could have instituted action against the defendants’ father before she died in 1948.

Learned counsel relying on Atunrase & Anor v. Sunmola & Anor (1989) 1 NWLR (Pt.1) 105, finally submitted that the Limitation Law cannot be invoked against the predecessors-in-title of the plaintiff, who are not parties to the action. In his own submission, learned counsel to the respondent observed that the learned trial Judge did not find as a fact the date on which the right of action accrued to the plaintiff. He referred to the unchallenged and uncontradicted evidence of D.W.1, D.W.2 and D.W. 3, that defendants’ father had been on the land in dispute since 1946 when he built on the land as evidenced by Exhibit Q, the approved building plan. D.W.3’s evidence was to the effect that in 1953 when he bought his own land, the building of the defendants’ father was already there.

The findings of fact of the trial Judge is not to be lightly interfered with, unless where it is shown to be perverse, or does not follow from the evidence before the Court. See Orji v. Zaria Industries Ltd. (1992) 1 NWLR (Pt.216)

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124 S.C. It is the law that where the trial Judge has failed to evaluate the facts before him, or has not drawn the proper conclusions or inferences, the appellate court is entitled to draw the proper conclusions. See Okunzua v. Amosu (1992) 6 NWLR (Pt. 248) 416. I have already referred to the judgment of the Court below. I am satisfied the Court was entitled in the circumstances of this case and on the facts before title learned trial Judge, and the fact that he failed to properly assess the evidence of the witnesses and come to the proper conclusion which he could have reached, to come to the conclusion it did.

The Court below also referred to Exhibit “L” or “U” and the recitals therein. It also relied on Section 129 of the Evidence Act, that where there is no evidence that the recitals are inaccurate, they constitute the truth of the facts so recited. I think the Court below was right in its criticism of the manner in which the learned trial Judge treated Exhibit ‘L’. This is because, based on the evidence before him, that at least since, 1943, defendants and their predecessors-in-title have been in possession of the land in dispute. There is also evidence that Mrs. Janet Ebun Wilson, who challenged their right in 1945 failed in her bid. There was no other evidence of another challenge before she died in 1948. He ought to have held that defendants have been in possession from 1943.

It is appropriate at this point to interprete the provisions of Sections 16, 19 and 21 of the Limitation Law of Lagos State relied upon by the appellants. These provisions relate to actions For the recovery of land.

Section 16(1)

“Subject to the provisions of subsections (2) and (3) of

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this section, no action shall he brought by a State Authority to recover any land after the expiration of twenty years from the date on which the right of action accrued to the State authority or if it first accrued to some person through whom the State authority claims, to that person.’

(2) 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 dare on which the right of action accrued to the person bringing it or if it first accrued to some person through whom he claims, to that person.

(b) if the right of action first accrued to a State authority, the action may be brought at any time before the expiration of the period during which the action could have been brought by the State authority, or of twelve years from the date on which the right of action accrued to some person other than the State authority, whichever period first expires.

(3) X     X   Not applicable  X

“19(1) No right of action to recover land shall be deemed to accrue unless available to the plaintiff was extinguished by section 21 of the Limitation Law in 1958. i.e. twelve years after C.K. Fowler entered on the land and Mrs. Ebun Adesola Wilson, failed to exercise her right of action for a declaration of title to the land.

I entirely agree with the interpretation of the provisions of sections 16, 19 and 21 of the Limitation Law of Lagos State and their application to the facts of this case. The submission of learned counsel to the appellants before us

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that the cause of action accrued only in 1977 when the plaintiff was disturbed by the defendants would appear to me to have ignored the established facts staring the Judge unwaveringly straight at the face.

The Court of Appeal was also criticised for its finding that Mrs. Ebun Adesola Wilson, the predecessor-in-title of the plaintiff who was aware of the presence, on the land in dispute of the defendants’ father, Mr. C.K. Fowler, never instituted any action, was wrong, there being no evidence on which the Court based such a finding. There is no doubt, there is abundant evidence on the record from which the inference could be drawn. The Court below was right in drawing the inference.

The decision of this Court in Atunrase & Anor v. Sunmola & Anor (1985) 1 NWLR (Pt. 1) 105 relied upon by appellant is different both on the facts and in the principle relied upon. Besides only Oputa, J.S.C. of the five Justices, dealt with this issue. Kawu. J.S.C.. who read the leading judgment did not consider the issue. Concisely, stated the title involved in Atunrase’s case is that of the Oyero family, which is not a party to the litigation. On the other hand, in the instant case, the plaintiff has acquired all the interest of Madam Ebun Adesola Wilson and relies on her title. Plaintiff is a party to the case.

Section 16(1) specifically provides that the twelve years to bring the action “accrues to {he person bringing it or, if it first accrued to some person through whom he claims, to that person.” Hence in this case the right of action accrued first to Mrs. Ebun Adesola Wilson, the predecessor-in-title of the plaintiff in 1946, and the period would be reckoned from that date. Mrs. Wilson’s title was

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extinguished in 1958. Learned counsel has cited my learned brother Oputa, J.S.C’s well reasoned statement out of context. Although the issues of joinder was discussed and the dictum credited to Oputa, J.S.C. was made. The more relevant and pertinent dictum appears at p. 120, when he said:

“Acquiescence, when available should relate to and he personal to the parties to the action or to those who derived title from those parties – their privies and not contra mundum.”

He went on to say. at p. 120.

“In the present case on appeal no one pleaded any acquiescence against the two defendants. The Oyero family was not joined and neither acquiescence nor limitation could have been pleaded against them and yet the courts below are now depriving them of their rights to sell or lease their land without as much as giving them a hearing, let alone a fair hearing under section 33(1) of the 1979 Constitution.”

In effect the dictum was based on the fact that neither acquiescence nor Limitation Law was pleaded. It therefore cannot govern the instant case where the Limitation Law was pleaded and relied upon.

Plaintiff claims to have derived title from the administrators of the Estate of Mrs. Wilson in 1970. This was after her title had been extinguished. The Administrators of the Estate of Mrs. Wilson can only convey to the plaintiff whatever title they had at the time. Nemo dot quod nail habet. It is clear on the law that in 1970 when plaintiff bought from the Administrators of Mrs. Wilson, her

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right of action in respect of the land in dispute had been extinguished by section 21 of the Limitation Law. Plaintiff had no title in respect of the land in dispute, and the action should have failed in limine.

In view of my conclusion above, and for the fuller reasons given in the judgment of Onu, J.S.C., to which I agree, I hereby dismiss this appeal. Appellants shall pay N1,000.00 as costs to the respondents.

I have read in advance the lead judgment of my learned brother, Onu, J.S.C. and with which I agree.

For those reasons stated in the judgment, 1 agree with the conclusion that the Court of Appeal was right in interfering with the trial court’s judgment since the learned trial 1udge had failed to properly evaluate and assess the evidence adduced.

The plaintiff’s case was not only statute barred but the title he was claiming was extinguished by section 21 of Limitation Law, Cap. 70, Laws of Lagos State, 1973.

The appeal lacks merit and same is dismissed with N1,000.00 costs to the defendants. The judgment and order of the Court of Appeal are hereby affirmed.

I had a preview of the judgment of my learned brother Onu, J.S.C. just delivered. My learned brother has stated in details the facts and the law applicable. I therefore agree with his reasoning and conclusion. I will also dismiss the appeal. I will also award the sum of N1,000.00 in favour of the respondents.

The plaintiff by a writ of summons

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sued the defendants claiming declarations of title to a piece or parcel of land situate, lying and being at No.20 Idera Street, Palmgrove, Mushin West, Lagos State, N200.00 general damages for trespass and an injunction restraining the defendant etc. from committing further acts of trespass on the said land. Pleadings having been ordered, were duly filed and exchanged and with leave of court amended. The action proceeded to trial on the amended pleadings. After hearing evidence and addresses of learned counsel for the parties, the learned trial Judge in a reserved judgment found in favour of the plaintiff and entered judgment for him in terms of his claims. Being dissatisfied with that judgment, the defendants appealed to the Court of Appeal and the latter Court in a well considered judgment allowed the appeal, set aside the judgment of the trial court and dismissed plaintiff’s claims. It is against that judgment that the plaintiff has now appealed to this Court upon four original and one additional grounds of appeal.

In his brief of argument filed on 18/5/88 and the supplementary brief filed on 15/11/91 the following issues are set out as calling for determination in this appeal:

“1. Whether the Court of Appeal has the right to introduce extraneous matter into the respondent’s case on which no evidence was adduced in the lower court.

2. Whether the defendant (respondent herein) has adduced sufficient’ evidence to prove acts of long possession to justify the findings of fact made by the Court of Appeal to enable it allow the appeal, and to interfere with the findings of the lower court.
3. Whether the statute of Limitation applies in this case.
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5. Whether the long possession ascribed to the defendant without the knowledge of the plaintiff or his predecessor-in-title can defeat the established title of the plaintiff.
6. Whether the law of limitation can defeat the title of a family without joining the party to the action.”

Issue (4) above does not arise any longer as this Court refused leave to the plaintiff to argue the ground of appeal encompassing it:

The defendants for their part set out the following three issues in their amended brief of argument filed on 16/12/91:

“1. Whether or not the learned Justices of the Court of Appeal were right in not supporting the findings made by the trial Judge having regard to the pleadings and evidence on record.

2. Whether or not, in the circumstances of this case the Court of Appeal was right in holding that the respondents have adduced sufficient evidence to prove acts of ownership and long possession by their predecessor-in-title superior to those of appellant.
3. Whether or not, as between the respondents and the appellant, the statute of limitation applied to extinguish the interest of any of the appellants.”

Before I go further I need to set out the facts rather briefly:

Both parties agree that the land in dispute forms part of a larger piece of land originally belonging to the Ojomo Eyisha Family. According to plaintiff, the larger piece “measuring about 41.786 acres including the land in dispute” was sold to one Larinde Agba in 1910. The latter sold the land to one Emmanuel Adekunle Seton in 1912.

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In March, 1936the land was sold to Messrs. Joseph Obayemi Adewunmi and Joseph Adebowale Adebiyi by public auction pursuant to an order of court to defray judgment debt incurred by Emmanuel Adekunle Seton in Suit No. 169/1932, Bello Larinde v. Emmanuel Seton. A certificate of purchase was issued in favour of Adewunmi and Adebiyi and duly registered. In 1944, Adewunmi and Adebiyi sold the land to one Mrs. Janet Ebun Adesola Wilson. Following the death of both Mrs Wilson and her husband Ezekiel John Olayinka Wilson intestate, their blood relations, that is Thomas Abisola Olajide Wilson (P.W.2), Mrs. Elizabeth Kofoworola Adewunmi, Nathaniel Akinbowale Williams and Alhaja Aminatu Alake Idris, obtained letters of administration to administer the estate of the late Mrs. Janet Ebun Adesola Wilson. The said administrators took possession of the land bought by Mrs. Wilson and later sold a part of it to the plaintiff. It is this part that is now in dispute. Following the sale to him, plaintiff wanted to erect a building on the land in 1977 but was obstructed by the defendants. Hence this action.

Defendants on the other hand traced their root of title to Ojomo Eyisha Family. They claim that in 1913 Ojomo Eyisha Family sold under customary law a large piece of land (of which the land in dispute fanned part) to one Larinde  Jaguniwon (presumably the same person as Larinde Agba mentioned by plaintiff) who in turn sold the land in 1915, toone Abudu Kadiri. Kadiri later transferred the land to Dorcas Bukosi Seton (agreed by both sides to be the mother of Emmanuel Adekunle Seton, through whom plaintiff claimed title.) Madam Dorcas Seton caused the land to be laid into plots and sold the plots through her

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agent. Mr. J.O. Ogundipe. In 1939 defendant’s father. Cornelius Kolade Fowler bought Plots 124 & 125 measuring 50 feet by 100 feet each. Mr Fowler was put in possession of the two plots and later built on the land. He completed the house he built on the land in 1945 and let the rooms in the house out to tenants. On his death intestate in 1962 the defendants succeeded him under customary law.

There have been some litigations over parts of the land originally sold by the Ojomo Eyisha Family and which devolved in succession to various people. The main question in those cases as well as in the present action was as to whom between Madam Dorcas Seton and her son Emmanuel Adekunle Selon, the land at one time devolved. The trial High Court accepted the history of devolution as put forward by the plaintiff the Court of Appeal, found there was no proper evaluation of the evidence by the trial Judge and on are-evaluation exercise carried out by it, it found for the defendants. The plaintiff has attacked in the appeal before us the findings of the Court or Appeal. In view, however, of the effect of whatever title one may find in the plaintiff or his predecessor-in-title of questions (3)and (6) raised in his Brief (which form question (3) in defendant’s brief) if successful. I will first concern myself in this judgment with the issue raised by those questions. This is so, because if it is found that the title of plaintiff’s predecessor-in-title had been extinguished by operation of law, as found by the Court of Appeal, that would be the end of his claim. I now proceed to consider that issue.

The defendants had in their amended statement of

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defence pleaded inter alia as follows:

“5. The said Larinde sold the same to one Abudu Kadiri in fee simple sometime on 23/12/1915 and later the same was transferred to one Dorcas Bukosi Seton who was put in possession thereof.

6. The said Dorcas Bukosi Seton caused the hereditaments to be laid out into plots and caused the same to be sold by one J.O. Ogundipe whereby the defendants’ father became the purchaser of plots No. 124 and 125 measuring 50′ x 100′ each and a receipt No. 44 of 24th August 1939, was issued to the said purchaser who was put in possession of the same. The defendants will rely on this receipt.
7. After the defendants’ father had been in possession for some time, in 1943, he caused a conveyance of the same to be prepared and it was registered as No. 91 at page 91 in volume 661 of the Land Registry in the office at Lagos.
8. That the late C.K. Fowler erected a residential building nee vi nec clam nec precario on a portion of the land with an approved building plan No. E.A. 125/45 registered as IKJ/181 at the divisional office at Ikeja. The defendants will rely on this plan.
9. Since the completion of the building in 1945, and until his death in 1962, the defendants predecessor in title had always been in undisturbed possession of the whole land including the portion built upon.
10. The defendants’ predecessor in title had been letting the house to tenants and amongst the tenants was one Kosoko Gbadebiyu who owned No. 27, Idera Street, Odiolowo a contiguous property. The defendants will rely
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on suit No. ID/24/74 between T.A.O. Wilson and E.K. Adewunmi (Adm. of Mr. and Mrs. Wilson) v. Kosoko Gbadebiyu.

(a) The defendants had been going on the land with their predecessor in title, in his life time to collect rent, effect repairs etc. and since his demise have been doing the same as owners exercising in various ways act of ownership without disturbance and are still very much in possession of the land till today.

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20. The defendants aver that the plaintiff’s purported predecessor in title Mrs. Ebun Adesola (deceased) in her life time made enquiry from the defendants’ predecessor in title as to his right to possession and title over the land in dispute, the defendants’ late father Mr. C. K. Fowler, proved his title to the satisfaction of the late Mrs. Ebun Adesola and it was resolved that C.K. Fowler (deceased) had an unassailable title to the land in dispute.

(i) The defendants aver that the plaintiff is estopped from bringing this suit by the conduct of Mrs. Ebun Adesola (deceased) and her vendors Messrs Adewunmi and Adebiyi who all saw Mr. C.K. Fowler (deceased) effectively occupying the land in dispute, and acquiesced in it up to the date including the date of the death of Mrs. Ebun Adesola (deceased in 1953, and the death of C.K. Fowler in 1962.

(ii) The defendants further aver that their predecessor in title was neither the tenant of any description of either Adewunmi and Adebiyi nor that of Mrs. Ebun Adesola (deceased) but occupied the land in dispute by virtue of his purchase from Madam Dorcas Bukosi Seton pleaded

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in paragraph 11 above.”

The plaintiff did not file a rely to these averments. Evidence was however led at the trial in support of the averments by the defendants. The learned trial Judge in his judgment observed as follows:

“It is also admitted in paragraph 20 of the amended statement of defence as follows that the plaintiff’s purported predecessor-in-title Mrs. Ebun Adesola (deceased) in her life time made enquiry from the defendant’s predecessor-in-title as to his right to possession and title over the land in dispute. This act in my view shows a claim to possession. There is no evidence led by the defendants to establish that the claim was ever resolved in favour of their late father.”

Later he added:

“There are Exhibit ‘L’ and ‘U’ which I have dealt with and I could not accept that the defendant’s predecessor-in-title had anything since 1944. But from the evidence led assuming that the defendant’s predecessor was on the land in 1944, they (the defendants) in their amended statement of defence in paragraph 20 admitted that the right of their father was challenged by Mrs. Ebun Adesola who died in 1948. Obviously, the right of their father had been challenged ever since he thought he became possessed of tile land.”

Finally, the learned trial Judge found:

Applying the facts in this case to the law as set out above, it is my view that the facts do not amount to estoppel by conduct on the pan of the plaintiff. The plaintiff and his predecessor-in-title did all within their power to apprise the defendant and their predecessors of his claim to the

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property in spite of that knowledge they embarked on the erection of the building. From the evidence of the 1st, 2nd And 5th D.W., it is clear that the building was put up around 1950 and that will be nearly two years after the death of Mrs. Ebun Adesola Wilson who died in 1948. It is also my view that the money was expended with knowledge of the real state of the title and I am reinforced in this belief by the urge of the defendants in preparing Exhibit ‘M’ instead of going to Court for Declaration of Title. The defendants had actual and constructive notices of the plaintiff’s title hence they will be precluded from raising the defence of an estoppel.”

The Court of Appeal in its own judgment per Nnaemeka-Agu, J.C.A. (as he then was) held the following view:

“But by far the most glaring error of the learned Judge is in the way he handled limitation of action pleaded and relied upon by the appellants. He simply considered possession by the appellants alone, and not that by their father and held that the action was not barred by statute. In my view, he should have considered that by their father and their predecessor-in-title also. As I have said, evidence shows that the appellants’ father had been in continuous possession at least since 1946 when he built a house on the land. But this action was filed on the 16th of November, 1977, that is after a period of 31 years. Evidence of the 1st, 2nd, 3rd and 5th defence witnesses as well as Exhs, Q, R, T and M put it beyond question that he and his successors-it-title (appellants) have been in continuous possession of the land in dispute since then. Their possession is clearly adverse to the respondents and his predecessor-in-title. Ebun Adesola Wilson did not

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institute any action against appellant’s father till she died in 1948. There is evidence that she knew of appellants’ father’s presence on the land. All that her executors could boast of was that they issued warning notices, Exhs. J-12 in 1960, 1969, and 1970: but clearly these do not amount to instituting a suit. When confronted with the above facts, the answer of the learned counsel for the respondent is that before the period of limitation could be held to have started to run, there must be persons who could sue on behalf of the respondent; and that there were none. He relied for this submission on the case of Lasisi Fadare & Ors. v. Attorney General of Oyo State (1982) 4 S.C. 1, at p. 25. In my view, this cannot be true because respondent’s predecessor-in-title, Ebun Adesola Wilson was alive in 1946 when the appellants’ father built on the land, she only died in 1948. There have been administrators to her estate who sold the land to the respondent in 1970. He had the land conveyed to him by Exh. F dated 5th day of July. 1972; but he did not institute this action till over five years later. Two judgments Exhs. D and E were tendered by the respondent to, as pleaded in paragraph 18 of the amended Statement of claim ‘fortify his title.’ It was not averred that the appellants were parties or privies to the parties in those cases nor were any facts pleaded upon which the judgment could be held binding on them. As Oputa J.S.C. pointed out in the recent case of Mrs. G.A.R. Soson & Ors. v. Dr. M.B. Ademuyiwa; S. C. 3/1984 of the 16th day of May, 1986 now reported in (1986) 3 NWLR (Pt. 27) 241.

‘Decisions between parties as a plea operate as a bar and as evidence they are conclusive: Duchess of Kingston’s

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Case (1776) 2 Smith L.C. (13th Edn) 644. But it must be decisions interpartes, strictly between parties, or their privies. Strictly speaking none of the parties to the present case was a party in Onosanya v. Anifowoshe(supra).’

See also Odunsi v. Boulos (1959) SCNLR 291: (1959) F.S.C. 234, per Brett F.J. at P. 237. In the instant case the appellants are not claiming through the defendant who lost in Exhs. D or E. As far as the plea of limitation of action in this, case goes, Exhs. D and E are useless. The respondent’s counsel probably realised this while drafting his pleading; this was why he was content to use them to ‘support his title.

It is clear from the evidence outlined above that the appellants and their predecessor-in-title have been in adverse possession of land in dispute since at least 1946, that is at least 31 years before the institution of this suit. What then is the effect of this? The answer is to be found in the provisions of sections 16(2)(a). 19(1) and 21 of Limitation Law, Cap. 70, Laws of Lagos State 1973, which provide as follows:

16(2) 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 person through whom he claims, to that person;

“19(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitarion can run.

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“21 On the expiration of the period fixed by this Law for any person to bring an action to recover land, the title of that person to the land shall be extinguished.”

It is clear from the .facts outlined above that the respondent’s suit is caught by the statute. The effect is nor only that he could not sue at the time he went to court, but that by the provision of section 21 of the Law, his title had been extinguished. See on this Mrs. G.A.R. Sosan & Ors v. Dr. M. B. Ademuyiwa (supra). It is important to note the difference between the effect of the provision of section 21 of the Limitation Law of Lagos State and that in many other statutes of limitation. Many statutes of limitation including the Public Officers Protection Act (Cap. 168) of 1958 merely provide that after the expiration of the period, ‘no action shall be brought’ or that ‘no proceedings shall lie. ‘They merely destroy the remedy and not the right. But section 21 of the Limitation Law of Lagos State and section 20 of the Limitation Decree 1966 destroy the title of the plaintiff. See also in Re Allison: Johnson v. Mounsey (1879) 11 Ch. D 284, at p. 296. It follows, therefore, that at the time the respondents, as plaintiff, went to court, if he had any title to the land in dispute it had been extinguished.”

The appellant, in his supplementary brief, argued that the Court of Appeal was wrong in the view expressed in the passage above and that that Court wrongly invoked the Limitation Law of Lagos Stale. It is submitted as follows:

“I humbly submit that the Court of Appeal before coming to this conclusion failed to ascertain the time the right of plaintiff or plaintiffs predecessor-in-title to take action against defendant accrued. There is no evidence on

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record that the plaintiff or his predecessors-in-title in possession of the land in 1946 failed to take action against the defendants.”

After reference has been made in the brief to portions of the evidence of the plaintiff and that of his witness (P.W. 2) who sold land to the plaintiff, it is then submitted:

“I humbly submit with respect that if the Court of Appeal has carefully considered the evidence of the parties it should have found that the right of action did not accrue until 1977 when the plaintiff was disturbed by the defendant. I further submit that the Court of Appeal came to a wrong conclusion when it found at page 245 lines 30 – 32:

‘Ebun Adesola Wilson did not institute any action against applicant’s father till she died 1948. There is evidence that she knew of applicant’s father’s presence on the land.’

I humbly submit that there was no such evidence on which the Court of Appeal based the above findings during trial.

Furthermore, the limitation law cannot be invoked against the predecessors-in title of the plaintiff who were not parties to this action and before title of the family can be extinguished the predecessors-in-title of the plaintiff must be joined. I rely on the case of I.MB. Atunrase & Anor V. Alhaji Abdul Mojid Sunmola & Anor. (1985) 1 NWLR (Pt. 1)105 at 123.

Title cannot be declared in the owner in proceedings to which they are not panics. Similarly the real owners cannot be divested of their title in such proceedings.

I finally submit that the limitation law does not apply in this suit.”

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I find no substance whatsoever in the above submissions. There is unchallenged evidence of D.W.2 to show that the defendants’ father. Mr Fowler had been on the land from at least 1946, built on it and let the house to tenants who occupied same. Madam Ebun Adesola Wilson, through whom plaintiff claimed, was-alive at the time and although she inquired from Mr. Fowler how he came on the land, she did not sue him for recovery of possession until she died. Her personal representatives did not do so either until they sold to the plaintiff who did not sue the defendants until 1977, that is some thirty-one years at least after Mr. Fowler had occupied the land by building on it. Although plaintiff and his witness (P.W. 2) claimed that the land was vacant when it was sold to the former and that there were no permanent structures on it six months before plaintiff testified at the hearing of this action on 12/3/81, his surveyor, John Ayodele Adegboye (P.W. 3) testified under cross-examination thus:

“I drew the plan attached to Exhibit F (that is, plaintiff’s deed of conveyance) in 1971. Within the area verged brown in the plan attached to (the) Exhibit I indicated some structures, 3 of them made with planks and the one facing Idera Street, is made of concrete.”

(Brackets are supplied by me)

Earlier he had testified:

“The land in dispute is the area verged green in Exhibit ‘K’ and falls within the area edged brown in the plan attached to Exhibit F. which land is said to belong to the plaintiff.”

It is clear from the evidence of this witness that at the time he surveyed, in 1971, the land claimed by the plaintiff there was a concrete structure on it facing Idera Street

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and some other structures. Plaintiff and his vendor (P.W. 2) could, therefore, not be speaking the truth when they deposed that the land was vacant when it was sold to the plaintiff in 1970.

It is the case of the defendants that that building was built by late Mr. Fowler before 1946 and when Madam Ebun Adesola Wilson was alive. That was the time  that any cause of action Madam Wilson had, arose and not  1977 as erroneously submitted in plaintiff’s supplementary brief. I agree entirely with the Court of Appeal’s interpretation of sections 16, 19 and 21 of the Limitation Law, Cap. 70 Laws of Lagos State and its application to the facts of this case. Whatever interest Madam Ebun Adesola Wilson and her predecessors-in-title might have in the land in dispute extinguished since at least 1958, they having failed to institute action against late Mr. Fowler in respect of his adverse possession of the land.

The Case of Atunrase v. Sunmola (supra) relied upon by the plaintiff is of no assistance to him. I say this because it was the plaintiff who claimed title and not the defendants whose defence is that plaintiff’s predecessor-in-title’s interest had been extinguished by operation of law since at least 1958, they, and their father before them, having been in possession of the land in dispute since at least 1946 adverse to the title of Madam Wilson and her successors-in-title. The defendants re not claiming any prescriptive title. Nor did the administrators of the estate of Madam Wilson claim to still have any interest in the land in dispute. The plaintiff’s case is that the totality of their interest in the land had been sold and conveyed to him. Hence the statement of law contained in the passage

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in the judgment of Oputa, J.S.C. in Atunrase v. Sunmola (supra) at p.123, to the effect:

“Title cannot be declared in the real owners in proceedings to which they are not parties. Similarly, the real owners cannot be divested of their title in such proceedings.”

would not apply to the facts of this case. Madam Wilson’s title having been extinguished by operation of law since at least 1958 – See section 21 of the Limitation Law of Lagos State – her administrators had no title to pass on to the plaintiff in 1970 and the latter’s claim to a declaration of title must, therefore, fail.

In view of the conclusion I have now reached. it is unnecessary for me to consider the other issues raised in plaintiff’s appeal.

For the reasons given above. I agree with the conclusion reached by my learned brother Onu, J.S.C. that this appeal be dismissed. I too dismiss it and award N1,000.00 (One thousand naira) costs in favour of the defendants.

Appeal dismissed.