⦿ CASE SUMMARY OF:
Inspector Kayode v. Alhaji J. A. Odutola (2001) – SC
by PipAr Chima
⦿ LITE HOLDING
For laches and acquiescence to hold, there must be evidence that there was knowledge on the part of the party, and yet he slept on his right.
⦿AREA OF LAW
Deed of conveyance
Earlier in time
Proof of title
ALHAJI J. A. ODUTOLA (2001)
(2001) JELR 40848 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FINDING OF FACT
The appellant/defendant had been on the land in dispute since 1957 and that by 1964 the latter had completed his building on the disputed land. However, plaintiff/respondent instituted an action against the appellant/defendant in 1964 in which the former was non-suited.
Exhibit D, the deed of conveyance, were executed in favour of the plaintiff/respondent on 15/2/52 by Ikuola family, which is earlier in time to Exhibit J purportedly executed on 27/6/64 by accredited members of the same family in favour of the appellant/defendant.
In the High Court holden at Ibadan Coram Ademakinwa, J., the appellant who was defendant, was sued by the respondent who was then the plaintiff, claiming from him (appellant) the following reliefs: “(a) The sum of ₦1,200 being special and general damages in respect of continuing trespass committed by the defendant on the plaintiff land situate at Molete, Ibadan sometime in 1964. Injunction restraining the defendant, his agents, servants or assigns from continuance of the aforesaid trespass.”
The learned trial Judge then considered the case of each party and came to the conclusion that although the appellant proved his root of title yet the defences of laches, acquiescence, stale claim and adverse possession robbed him of his title as the evidence of laches etc put up by him was not contradicted, controverted or challenged by the respondent. Hence, the trial court dismissed the Respondent’s claim when it held in the penultimate paragraph of its judgment thus: “In my view there is sufficient evidence of acquiescence and laches in this case to warrant the restraining of the plaintiff from exercising his legal right in respect of the land in dispute. See Morayo v. Okiade (1940) 15 NLR 131. In the circumstances, the plaintiffs claim fails and it is accordingly dismissed …”
Aggrieved by this decision, the respondent appealed to the Court of Appeal sitting in Ibadan (hereinafter in the rest of this judgment referred to as the court below).
In a unanimous decision, that court (per Okunola, J.C.A. concurred in by Mukhtar and Dalhatu Adamu, JJ.C.A) held, allowing the appeal on 16th June, 1997, inter alia, as follows: “I have considered the submission of both learned counsel to the parties vis-a-vis the records and the prevailing law. As conceded (sic) by both sides learned trial Judge found at page 42, lines 27 – 35 on title between the parties which is the bone of contention thus: “Whichever way one looks at it, the plaintiffs title to the land in dispute is unimpeachable. Having found that the appellant is the legal owner of the land in dispute and since the defence of acquiescence as reviewed supra had collapsed, the learned trial Judge ought to have rejected the defences of acquiescence and laches and the appellant ought to have succeeded in his claim for trespass and injunction and I so hold.”
Upon this holding, the defendant has appealed to this Supreme Court.
Whether the learned Justices of the Court of Appeal were right when they held that the registration of deed of conveyance was a notice to the appellant.
Whether the learned Justices of the Court of Appeal were justified in making use of evidence elicited from cross-examination particularly when such facts were not pleaded.
Whether the plea of laches, acquiescence etc. were not available to the appellant when the lower court had found that the plea was made out.
Whether the learned Justices of Court of Appeal were right in holding that the appellant relied only on Exhibit J. when he in fact pleaded in paragraph 7 of his amended statement of defence the equitable defences of laches, acquiescence etc.
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The truth of the matter is that the respondent did not only buy first from Ikuola Family, he even registered the conveyance in 1952 before the alleged sale under native law and custom to the appellant in 1957 and its subsequent execution and registration of a deed of conveyance by him in 1964 in respect of the same land. See Amankra v. Zankley (1963) 2 SCNLR 223, (1963) All NLR 3 0 at 313. Clearly therefore, the legal title of the appellant to the land in dispute as per Exhibit ‘J’ is not proved and his equitable defences are made to prop up a defective legal title as claimed.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
3 & 4. ISSUES 3 & 4 ARE RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In my view, appellant knew or ought to have known that the land in dispute belonged to the respondent and that the respondent and his brother acquired it in 1952, five years before the appellant purported to have purchased the land from the accredited representatives of the respondent’s Vendor. I am therefore of the opinion that the registration of the deed of conveyance (Exhibit ‘D’) in favour of the respondent constitutes a notice to the appellant and he ought to have known that the respondent is the owner of the land. Consequently, I take the firm view that the plea of acquiescence and laches does not and could not avail the appellant.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
In Abbey v. Ollenu (1954) 14 WACA 567 at 568, the West African Court of Appeal adopted and quoted with approval the dictum of Fry J. in Willmot v. Barber (1880) 15 CH.D 96 at 105 thus: “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 acted in such a way as would make it fraudulent for him to set up those rights.” See also Gerrard v. O’Reilly 3 D and WAR 414.
In Taiwo v. Taiwo (1958) SCNLR 244 particularly at 247 – 248, this court in dealing with the equitable defences of acquiescence and laches, stated as follows:- “Acquiescence does not bar a claim unless certain conditions are fulfilled. One of the most important is that the party who relies upon his opponent’s acquiescence must have been led by it to expend money or otherwise alter his position. There is nothing to show here that the plaintiffs or their predecessor in title, Rebecca, have been led to do anything of the sort by the defendants’ failure to assert their claim. However, the plaintiffs here do not rely, upon bare acquiescence, but upon acquiescence over a long period; I should prefer to say that they rely on the defendants’ laches. Laches is not delay alone; some other factor must exist, or at least the delay must be such that the existence of some other factors may be inferred. Laches may be evidence of the waiver of a party’s right, but waiver is incomplete without consideration in some shape or form proceeding from the other party. There is no evidence of that here; neither the plaintiffs nor their predecessor in title here acted in any way upon the defendants’ failure to assert a claim to Rosannah’s share of the rents which they were taking. Counsel for the plaintiffs speaks of the defendants’ case as a stale claim. There is a stale claim when laches has brought about the destruction or loss of evidence which might have supported or rebutted it. In the present case the rights of the parties depend on native law and custom, not on any dealings between individuals giving rise to private rights which the passage of time might have made more difficult to establish. Evidence relevant to the native law and custom governing the case is as available now as it was 14 years ago. In my view, the defendants’ inactivity, by itself and unaccompanied by any other circumstance which would make it a fraud or unconscionable on their part to maintain whatever rights they may have to a share in Rosannah’s estate, has not relieved the plaintiffs from the burden of showing positively that the native law and custom in this matter is what they assert it to be. It still rests with the plaintiffs to show that native law entitled them to succeed to Rosannah’s share to the exclusion of Fredrick’s children.” See also Solomon v. Mogaji (1982) 11 SC 1.
In Kaiyaoja and Ors. v. Lasisi Egunla (1974) All NLR 913, a situation which is not completely dissimilar to the one at hand, in considering the applicability of the doctrine of acquiescence and laches this court held – “3. that the doctrine of laches and acquiescence was wrongly applied to this case. 4. that mere lapse of time is not enough to justify the defence of laches unless such lapse of time is coupled with the existence of circumstances which make it inequitable to enforce the claim; 5. that, though there may be acquiescence without undue delay, yet the acquiescence which will deprive a man of his legal rights must amount to a fraud. 6. that the appellant’s conduct in the present case was such that they could not be said to have slept upon their rights.”
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
Essentially the equitable defences of acquiescence and laches involve a loss of time and substantial delay in asserting the right being claimed of. Either of the defences will only apply if:- i. there is evidence of an agreement by the plaintiff to give up or release his right; ii. the delay to enforce the right has resulted in the destruction or loss of evidence by which the claim might be rebutted; iii. the claim is to a business for the plaintiff for which he should not be allowed to adopt the attitude of wait and see the business if it would prosper; iv. the plaintiff has not done any thing as to induce the defendant to alter his position on the reasonable belief that the claim has been released or abandoned. – Wali JSC. Kayode v. Odutola (2001)
A person may not be deprived of his legal rights on grounds of acquiescence or laches unless it will be inequitable and unjust to grant him such a right because he has done by his conduct that which might fairly be regarded as equivalent to a waiver of it or he has by his conduct or neglect put the other party in a position where it will not be reasonable to place such other party if the remedy were to be asserted. Two factors are always taken into consideration in granting the remedy sought and these are – (i.) the length of the delay; and (ii.) the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in so far as it relates to the grant of the remedy. – Wali JSC. Kayode v. Odutola (2001)
There is no duty on a person having estate or interest in land or other property for that matter to raise protest against a trespass or encroachment on the property or invasion of his right on same if he has no reason to believe that such a trespasser, encroacher or invader mistakenly conceives himself to be acting lawfully because in such a situation there cannot be said to be any misrepresentation, delusion or inaction from the owner’s part, encouraging or fostering the trespasser in expending money by developing the property. There is nothing to stop the owner from asserting his right against the trespasser at any time however that may be, subject to any applicable statutory provision of limitation. – Wali JSC. Kayode v. Odutola (2001)
It cannot be disputed that where two competing deeds are registered, each takes effect as against the other from the date of registration and the benefit of earlier registration is preserved. – Iguh JSC. Kayode v. Odutola (2001)
Accordingly, it has been said that if a stranger begins to build on another’s land supposing it to be his own and the real owner, perceiving his mistake, abstains from setting him right and leaves him to persevere in his error, a court of equity will not allow such real owner afterwards to assert his title to the land on which the stranger has expended money on the supposition that the land was his own. It considers that the owner saw the mistake into which the stranger had fallen and that it was the duty of such owner to be active and to assert his adverse title; and that it would be dishonest in the owner to remain willfully passive on such an occasion, in order afterwards to profit by the mistake which such owner might have prevented. See Ramsden v. Dyson (1866) L.R.H.L. 129 at 140. One vital point has, however, been made. This is the fact that laches and acquiescence which will deprive a man of his legal rights must amount to fraud. It is added that a man must not 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. See Willmot v. Barber (1880) 15 Ch. D. 96 at 105 and Abbey v. Onenu (1954) 14 W.A.C.A. 567 at 568. – Iguh JSC. Kayode v. Odutola (2001)