S.A.T. Taylor And Ors V Kingsway Stores Of Nigeria Ltd & Anor (1965)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN

In this appeal the plaintiffs complain of the judgement given by Onyeama J. On 17th October, 1962 when a judge of the High Court of Lagos, and dismissing their suit for recovery of possession of the property described in the plan attached to the conveyance dated the 16th December, 1936, and registered under Title No. L00039, now unlawfully occupied by the defendants, which has a rental value of £50,000.

The plaintiffs’ grandfather devised the property by his will to be held first by his children in joint tenancy during their lives, and afterwards to be held in common tenancy by the eldest sons of his children; that is agreed by the parties, and what is said further in the devise is immaterial here. The grandfather died in 1912; two of his children died before him without issue, and another in 1920, also without issue; the remaining three other children survived Into the year 1936 and beyond, and the last surviving child died on 14th February, 1961. These three children were

(a) a daughter, Alice Agnes, who married Mr E.J.A. Taylor; the 1st appellant and the 4th are her twin sons, born on 8 January, 1915;

(b) a son, Frederick Charles Labode Williams; the 3rd appellant is his elder son, born on 20th May, 1917;

(c) another son, Thomas Ekundayo Williams; the 2nd appellant is his eldest son, born on 11 August, 1916.

On the 1st December, 1936 a suit was begun in the Supreme Court of Nigeria for partition or sale of the property, then known as Manchester House; the plaintiffs were child (a), child (c), the 4th appellant and the 2nd appellant; the defendants were child (b) and the 3rd appellant, with the father appointed as guardian ad litem of his son. On the 2nd December counsel appeared before Butler Lloyd, acting Chief Justice, who by consent ordered the suit to be heard forthwith, and gave judgement by consent ordering as follows:

“The property is ordered to be sold by private treaty at a price not less than £10,000.

Proceeds to be pail to Mr E. J. A. Taylor for distribution among the parties entitled.”

The reason for the hurry was stated in an affidavit to be that the parties had agreed on the price for sale of the premises to the United Africa Co. Ltd., who were anxious to take immediate possession in order to begin building. Later the plaintiffs applied for an order directing Mr E.J.A. Taylor to execute a conveyance to the present 2nd respondents; the order was made on the 15th December, and the conveyance executed on the 16th. The appellants allege in paragraph 27 of their Statement of Claim, that the conveyance purports to convey the fee simple; and that is admitted by the Defence.

The statement of Claim alleges that, for certain reasons the proceedings in the 1936 suit were defective, the orders void, and the conveyance ineffectual; all of which the Defence denies. The Defence adds that ever since the time of the conveyance the 2nd respondents by themselves or through their tenants, the 1st respondents, have been in lawful and undisturbed possession, and have made developments at great expense to the knowledge of the appellants, who, however, made no objection but stood by, and are estopped by their conduct from relying on defect or want of jurisdiction in regard to the said proceedings; and also barred by laches and acquiescence from making their claim.

The learned trial judge deals with this part of the Defence under the label of laches, towards the end of his judgement, from which it will be enough to quote this passage:

“It is beyond doubt, and 1 find this as a fact, that the plaintiffs know in 1938 that the second defendant(s) believed they had bought, and had had conveyed to them, the fee simple estate in the property free of incumbrances. They knew further that acting on this belief the second defendant[s] leased the property to the first defendant who expended a large sum of money in erecting “a fine new building” on the site.” The plaintiffs did nothing for nearly a quarter of a century to assert their claims to any subsisting interest in the property. No reason for this inordinate delay has been offered, and even If I thought that the defendants had no title because of some defect in the title of their vendor I would have held that the plaintiffs (assuming they had title) had been tardy in asserting their claim and that the claim was stale.

The plea of laches appears to me well founded and sufficient by itself to defeat the claim of the plaintiffs and I hold accordingly.” The findings of fact were not challenged in the opening address on appeal, and could not be in reply. As none of the appellants gave evidence at the trial, there was no material on which any useful argument could have been built. The argument turned on the law of laches as a defence, on which the appellants argue that the leamed trial judge misdirected himself.

The locus classicus is in Lindsay Petroleum Co. v. Hurd (1874) L.R. 5 P.C. 221, 239, where Sir Barnes Peacock stated the law as follows: “Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivilent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him ff the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most meterial. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”

That is cited in Agbeyegbe v. Ikomi 12 W.A.C.A. 383, 386, by Lord Oaksey, with the observations of Lord Blackburn in Erlanger v. New Sombrero Phosphate Co. (1878) L.R. 3 App. Cas. 1218. In Agbeyegbe v. Ikomi Lord Oaksey states (supra) at bottom of p. 386 that:

“In no other case to which their Lordships’ attention has been drawn has there been anything like a delay of nine years and having regard to the length of the delay, the adequacy of the explanation of the delay and the consequences of setting aside the sale of land as against a bona fide purchaser for value who had been in occupation of the land during the whole period and had apparently altered the buildings thereon, their Lordships are of opinion that the case ought not to have been re-listed and having been re-listed ought to have been dismissed.”

As learned counsel for the respondents pointed out, the delay here is twenty five years, during which from time to time beginning with the year 1938, the respondents have spent vast sums of money on building and Improving what are known as the Kingsway Stores, in the belief that they had the fee simple; the appellants knew of that belief as far back as 1938, but they gave no explanation at the trial on why they stood by during those twenty-five years. As to the bona fides of that belief, the appellants’ learned counsel had wished to argue on bad faith or knowledge on the respondents’ part of the defect in their title, but learned counsel for the respondents pointed out that bad faith or such knowledge was neither pleaded nor cross- examined upon at the trial, and it was not open to the appellants to speak about it on appeal.

There was in the 7th ground of appeal an objection that laches did not apply to a claim for possession; it was not argued, probably in the light of Nwakobi v. Nzekwu [1964] 1 W.R.L. 1019 (the Issue for July 17, 1964) where Lord Radcliffe explains (at p. 1024) what laches is, and goes on (at p. 1025) to cite with approval the statement of Sir Barnes Peacock (quoted earlier in this judgement).

The argument for the appellants on the law is to the following effect: their tenancy in common under the will did not vest in possession until the death of the last surviving joint tenant on 14 February, 1961, about a year before the present action was brought; the dispute was whether the respondents got a conveyance of the fee simple or only an estate pur autre vie of the tenants for life; the conveyance could not confer more than what those who appointed Mr E.J.A. Taylor could confer; and as for the 1st appellant, he was not a party to the 1936 suit, and he in any event should have one-third share and was entitled to a non-suit. The answer for the respondents has been given under the quotation from Agbeyegbe v. Ikomi; it was also pointed out on their behalf that on the pleadings the conveyance was for the fee simple, and that there was nothing said on that either in argument in the court below or in the notice of appeal. In reply learned counsel for the appellant said that paragraph 27 of the Statement of Claim (on what the conveyance purported to convey) was inaccurate; that the trial judge was wrong in finding that the appellants knew of the respondents’ belief that they had the fee simple, for the finding was not supported by evidence, and, as to delay, the appellants could not have sued before the death of the last surviving life tenant.

It was too late, in reply, to attack the findings of fact for the first time. The final argument is at bottom an argument on the facts; for its offers an explanation of the appellants’ inaction to which none of them testified. Moreover, there Is the finding in the judgment that they knew in 1938 that the respondents believed they had obtained the fee simple free from incumbrances, and in that belief spent a large sum of money in erecting a fine new building on the site: which made it their duty to assert at once that their interest in the land was not affected by the court orders or the conveyance. By June

Other Citation: (1965) LCN/1291(SC)