⦿ CASE SUMMARY OF:
Asiru Gbadamosi & Ors. v. Alhaji Salami A. Bello & Ors. (1985) – SC
by PipAr Chima
⦿ NOTABLE DICTA
Besides, a high degree of acquiescence (not just 12 years) is required to extinguish the original owner’s reversionary right in land in favour of an occupier. – Nnamani JSC. Gbadamosi v. Bello (1985)
An estoppel is part of the law of evidence. It is no other than a bar to testimony. It’s sole function is to place an obstacle in the way of a case which might otherwise succeed or to remove an impediment out of the way of a case which might otherwise fail. – Oputa JSC. Gbadamosi v. Bello (1985)
The estoppel put an impediment on its way, Estoppel is thus a shield not a sword; it’s role is defensive not offensive. To use the language of naval warfare, an estoppel must always be either a mine layer or a mine sweeper; it can never be a capital unit. There is nothing like title by estoppel as an estoppel gives no title to that which is the subject matter of the estoppel. – Nnamani JSC. Gbadamosi v. Bello (1985)
Lapse of time is generally evidence of acquiescence but acquiescence is not just mere lapse of time. – Oputa JSC. Gbadamosi v. Bello (1985)
Equitable estoppel thus bears some relationship to the equitable doctrine of laches. The type of conduct that will amount to laches and acquiescence will be such that will be repugnant to equity and good conscience. – Oputa JSC. Gbadamosi v. Bello (1985)
The defence of acquiescence presupposes adverse possession. Such a plea cannot succeed where, as in this case, the appellants were on the land with the leave and licences of the respondents. They ought to know that their root of title derived from the respondents. In putting up those 5 buildings, they could not be acting in the bona fide belief that they were owners. Since laches and acquiescence are equitable reliefs, the bona fides of the possessor becomes material. – Oputa JSC. Gbadamosi v. Bello (1985)
Asiru Gbadamosi & Ors.
Alhaji Salami A. Bello & Ors.
⦿ LEAD JUDGEMENT DELIVERED BY:
M. L. Uwais, J.S.C
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ CASE HISTORY
The latter claimed (on their behalf and as representatives of the Ariori family): (a) a declaration of customary title to a piece or parcel of land, lying siiuate and being at Ariori Compound Idi Aro Ibadan; (b) N400.00 damages for acts of trespass being committed by the defendants, their servants and or agents; and (c) perpetual injunction restraining the defendants from committing other acts of trespass.
After carefully applying his mind to the weight of the traditional evidence adduced, the learned trial judge concluded that the Kuwo drainage or trench as shown on Exhibit A constitutes the boundary, between the plaintiff’s family and the appellant’s family. He therefore granted the declaration sought by the plaintiffs.
On the claim for trespass, the learned trial judge found that the houses erected by the defendants had been on the plaintiffs land for 12 years. He therefore held that the plaintiffs had acquiesced for too long in the defendants act, and that the claim for damages for trespass failed. Consequently the learned trial judge did not restrain Tijani Olapade (2nd defendant), Madam Adunola, Raufu, Alhaji Suara and Olaleye from making use of the structures or houses built on the plaintiffs’ land. However since the houses are scattered over the plaintiff’s land and there were open spaces between some of them, the learned trial judge restrained the defendants from (a) erecting any new structures on the plaintiffs’ land and (b) any further acts of selling, leasing, mortgaging or otherwise disposing of any land in the area in dispute.
The defendants unsuccessfully appealed against the decision of the learned trial judge to the Court of Appeal. This is a further appeal.
⦿ ISSUE(S) & RESOLUTION
1. WHETHER THE PLAINTIFF/RESPONDENT proved title to the said land?
RULING: IN FAVOUR OF RESPONDENT.
i. To start with the first part of the complaint which refers to a party who cannot prove a “title” is inappropriate to this appeal because the plaintiffs had successfully proved, before the trial court, their title over the land in dispute. Hence the grant to the plaintiffs, by the learned trial judge, of the declaration of title.
2. WHETHER THE RESPONDENT CAN obtain an injunction against the appellant in possession?
RULING: IN RESPONDENT’S FAVOUR.
i. It is settled law that a declaration of title will not be granted where long possession is established Akpan v. Cookay Gam 2 N.L.R. 100 Alhaji Suleman and Anor. v. Hannibal Johnson, 13 WACA 213 and Atuanya v. Onyejekwe (supra). However in the present case the defendants failed to establish ownership by the long possession which they averred in their pleadings. There is a fine distinction between Atuanya case (supra) and the instant case. As already stated, the plea of acquiescence was upheld only in respect of the claim for trespass which relates to possession and not title to the land in dispute, which is a matter of ownership. The Court of Appeal was therefore right in observing that the present case is distinguishable from Atuanya’s case and that the plea of acquiescence could not apply to the rest of the land in dispute on which no building was erected by the defendants or members of their family.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
Willmott v. Barber (1880) 15 Ch.D 96 at p. 105 viz: “It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view, that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights.”
“If for instance, a stranger begins to build on my land, supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of Equity will not allow me afterwards to assert my title to the land on which he had expended money on, the supposition that the land was his own. It considers that when I saw the mistake into which he had fallen, it was my duty to be active, and to state my adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion in order afterward to profit by the mistake which I might have prevented”. See Lord Cranworth in Ramsden v. Dyson (1866) 1 H.L. 140: see also Rafat v. Ellis (1954) 14WACA. 430.
⦿ REFERENCED (OTHERS)
⦿ SIMILAR JUDGEMENTS
Atuanya v. Onyejekwe, (1975) 3 S.C. 161