Asiru Gbadamosi & Ors. V. Alhaji Salami A. Bello & Ors. (1985)
LawGlobal-Hub Lead Judgment Report
L. UWAIS, J.S.C.
The appellants were the defendants in the High Court of Oyo State and the respondents were the plaintiffs. 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.
The parcel of land (hereinafter called the land in dispute) was described in the statement of claim and is shown on plan (Exhibit A). The gist of the plaintiffs’ case is that their ancestor Ariori settled, many years ago, on the whole of the land verged red on exhibit A. Later the defendants’ ancestor called Alfa Abibu was granted the area verged green in Exhibit A. A drainage or trench called Kuwo was used as boundary between the families of the plaintiffs and the defendants. The areas alleged to be trespassed upon consisted of five separate houses which are variously edged blue in Exhibit A. These houses are owned by Tijani Olapade (2nd defendant), Madam Adunola, Raufu, Alhaji Suara and Olaleye.
The defendants’ case is that the defendants’ ancestor, one Adelere, was granted a large piece of land by Abayomi. The areas on which the houses in question were built are part of the grant by Abayomi to Adelore.
It is quite clear that there was conflict in the traditional evidence which the parties relied upon to show that their ancestors had been in possession of the areas in dispute as full owners.
The learned trial judge, relying on the decisions in Kojo II v Bonsie 1957 1 W.L.R. 1226 and Ekpo v Ita 11 N.L.R. 68, came to the conclusion that the onus was on the plaintiffs to show acts of ownership in recent times, which are numerous and positive to warrant the inference that they (the plaintiffs) were the exclusive owners of the areas of land in respect of which a declaration of title was claimed.
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. They have now appealed further before us.
Four original grounds of appeal were filed and these read as follows:-
“1. The learned trial judge erred in law in holding that grounds 6 and 9 of the appeal are not related to each other, to make it expedient (or all of them to be argued together when the two grounds are distinct and
- The learned trial judge erred in law in holding that the cause of dispute was the building of the houses on the land in dispute when evidence led was in relation to land in dispute between the parties as established by Exhibits A and B.
- The learned trial judge erred in law in holding that the plea of acquiescence having been sustained by the lower court, such plea cannot be extended to the remaining land on which building has been erected.
- The judgment is against the weight of evidence.”
It is necessary to observe in passing that these grounds of appeal merely attack the decision of the trial court and bear no complaint against the Court of Appeal from whose decision the appeal to this court is brought. Be that as it may, on application before us, leave was granted for the defendants to file and aruge two additional grounds of appeal which read as follows:-
“1. Error In Law:
Having held (rightly, it is submitted), that where the defence of acquiescence has succeeded, a declaration of title will not be made in favour of the owner, the Federal Court of Appeal erred in law in dismissing the Appellants’ appeal, when:-
(a) The learned trial judge (at page 28 lines 26-34) had held that the Respondents had been guilty of acquiescence in respect of the buildings erected on the land in dispute by the Appellants without protest from the Respondents;
(b) The learned trial judge had declared the Plaintiffs (Respondents) the owners of the land in dispute;
(c) The learned trial judge had granted an injunction in respect of the land in respect of which the plea of acquiescence was held to have been established;
(d) The Federal Court of Appeal ought to have allowed the appeal because once the claim for declaration of title and for injunction fail (along with the claim for damages for trespass in respect of the land), because the plea of acquiescence had been established by the Defendants, the whole claim of the Plaintiffs should have been dismissed in its entirety.
“2. Error In Law:
Having held in effect that the Plaintiffs claim in respect of:-
(i) Declaration of title to the land in dispute;
(ii) Damages for trespass to the land in dispute; and
(iii) Injunction restraining further trespass to the land in dispute had failed on the ground of acquiescence or stale claim, the Federal Court of Appeal erred in law in holding in effect that the Defendants/Appellants should be restrained from dealing with the undeveloped portion of the land in dispute when:-
(a) once the Plaintiffs’ claim had in effect been dismissed in their entirety, the court had no power to make any order against the successful party restraining them from dealing with the land in dispute.
(b) the claim of the Plaintiffs/Respondents was in respect of the land, and the buildings erected thereon without objection were the cause of the Plaintiffs losing their rights to the land by acquiescence.
(c) the true effect and meaning of the success of the plea of acquiescence was that the Plaintiffs lost the land that belonged to them because of the buildings erected thereon by the Defendants/Appellants.”
However, the gravamen of the defendants’ complaint is as summarized in their brief to be –
“whether a party who cannot prove title to land or maintain a claim in trespass can nevertheless obtain an injunction against the party in possession.”
The appeal was therefore argued on the basis of this summary. 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.
With regard to the claim for trespass, which was defeated by the plea of acquiescence, it is very clear from plaintiffs’ plan exhibit A and paragraph 3 of the Statement of Claim that the houses built by the defendants cover areas of the plaintiffs’ family land as found by the learned trial judge. By their averment in the Statement of Defence, which was supported by their plan, Exhibit B, the defendants claimed that the areas occupied by their houses (on the land in dispute) together with the adjoining spaces were part of the land owned by Alalubosa. But the learned trial judge did not find the averment proved. Consequently, it became necessary for the trial court to restrain the defendants from exercising acts of ownership in the open spaces surrounding the houses. It follows therefore that the injunction granted to the plaintiffs was consistent with the finding of the learned trial judge, that title in the whole of the land in dispute, which was partly occupied by the defendants’ houses, was vested in the plaintiffs’ family.
It is significant to point out that from the facts of the case, the defence of acquiescence raised by the defendants did not apply to the declaration of title claimed by the plaintiffs, but to the claim for trespass which is essentially a claim against possession. With respect, the Court of Appeal appears to have confused the findings of the learned trial when the court made the following observation; (per Ogunkeye, J.C.A.):
“I entirely agree that where the defence of acquiescence has succeeded as in this case, declaration of title will not be made in favour of the owner. In Atuanya v Onyejekwe, (1975) 3 S.C. 161 the Supreme Court observed at page 171:
‘….We think that, as the learned trial judge has granted title to the plaintiff in unmistakable terms, it was no longer open to him to seek, as it were, to dilute his judgment as he purported to do. Acquiescence in law has the effect of extinguishing the plaintiffs title, and in the case of ejectment, of neutralising the plaintiff’s claim. We think that it is not possible for the court to decree title in the plaintiff and at the same time uphold the plea of acquiescence put forward by the defendant. One must give way for the other in as much as acquiescence, once made out, tends to annihilate or defeat the plaintiffs’ claim to title… .’
But the case in hand is entirely different. I think, on the evidence, the learned trial judge was quite liberal in allowing the buildings to stand on the land in dispute and since in my view the cause of dispute is the building of these houses, the effect of the success to plea of acquiescence cannot be extended to the remaining land on which no building has been erected.”
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 & 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. In the former the trial court granted a declaration of ownership to the plaintiffs but refused to grant an injunction against one of the defendants on the ground that he (the defendant) successfully raised a defence of acquiescence. This is what this Court said cannot be done in the quotation above since it is not possible to decree title in the plaintiff and at the same time grant the plea of acquiescence raised by the defendant. But in the case in hand there is no question of the trial court doing so vis-a-vis the claim for title by the plaintiffs. 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.
Consequently, the appeal lacks merit and it is accordingly dismissed with N300.00 costs to the respondents.
A. G. IRIKEFE, J.S.C. (Presiding): I had seen in advance the judgment just read by my learned brother, UWAIS, J.S.C. and I agree with the reasoning and conclusions therein, both on matters of law and fact.
I have nothing further to add. I adopt all the orders made in the said judgment inclusive of the order as to costs.
A. NNAMANI, J.S.C.: I had a preview of the judgment just read by my learned brother, UWAIS, J.S.C. For the reasons so lucidly given by him I too would dismiss this appeal.
The facts of this suit have been so admirably set down in the lead judgment of my learned brother that they cannot bear any repetition. On the pleadings of the parties and the evidence led at the trial, the appellants have not persuaded me that the trial court and the Court of Appeal were in error in the resultant reliefs granted to the respondents which were a declaration of customary title to the land in dispute, and perpetual injunctions against the appellants’ family except 4 members of that family who had buildings on the land in dispute in respect of which the respondents were held to have acquiesced. The appellants’ Alalubosa family were rightly restrained from (a) erecting any new structures on the land in dispute and (b) any more acts of selling, leasing, mortgaging or otherwise dealing with the land in dispute.
The acquiescence held against the respondents arose from their sleeping on their nights for the 12 years in which buildings owned by Madam Adunola, Raufu, Alhaji Suara and Olaleye had stood on the land in dispute. The respondents’ claim for damages for trespass failed for this reason. The main contentions of the appellants before us and as contained in their brief were:
(i) that where a plea of acquiescence laches or stale claim is held to be established because of acts of ownership such as the erection of buildings on part of the land, such acts of ownership relate not only to the locations upon which buildings are actually erected but also to all other portions of the whole land in dispute which are used as one with the parts of the land actually developed:
(ii) that the effect of the success of the plea of acquiescence in relation to the land in dispute is that the plaintiffs i.e. the respondents are no longer the owners of the land in dispute.
I have italicised parts of the first contention as I can find no basis for such a proposition. No authorities were offered to support it. As regards the second contention, the success of the plea of acquiescence was only limited to the areas of the land in dispute already developed not the whole land in dispute. The acquiescence which succeeded merely defeated the claims of the respondents for damages for trespass, the named appellants having been in occupation of their buildings for 12 years. Although there are authorities to the effect that there could be loss of title through acquiescence See Suleman v. Ladejobi (1951) 13 W.A.C.A. 213 and Akuru v Olubadan-in-Council (1954) 14 W.A.C.A. 523) it must be appreciated that in this case that acquiescence as indicated above succeeded only in respect of the areas built on. 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 See Dania v Soyenu (1937) 13 N.L.R. 143. What the two courts below did in my view is in effect to grant customary title to the respondents in respect of the areas of the land in dispute not developed. In respect of areas developed over which the courts refused an injunction and action for trespass what was granted is in fact radical title.
I abide by all the orders in the said judgment of my learned brother, UWAIS, J.S.C.
S. KAWU, J.S.C.: I have had the advantage of reading in draft the judgment just read by my learned brother, Uwais, J.S.C. I entirely agree with the reasons and the conclusion therein. I will also dismiss the appeal with N300.00 costs to the respondents.
C. A. OPUTA, J.S.C.: The Plaintiffs’ claim before the Ibadan High Court was for:
(i) Declaration of Customary title to a piece of parcel of land, lying, situate and being at Ariori compound, Idi Aro, Ibadan.
(ii) Damages of N400.00 for acts of trespass being committed by the defendants, their servants and/or agents.
(iii) Perpetual Injunction restraining the defendants from committing other acts of trespass.
From the pleadings, it appears that both parties fought this case, each representing their respective families. The plaintiffs sued as representing and on behalf of the Ariori family. The defendants defended the action representing the Alalubosa family. The plaintiffs pleaded a grant of portion of their land verged green to the ancestor and predecessor in title of the defendants. This was an outright grant. The area granted was separated from other lands of the Plaintiffs by a trench known as Kuwo, dug by the Plaintiffs’ ancestor Ariori. In 1967, the defendants crossed the area granted to them and trespassed on other lands of the plaintiffs. The defendants denied any grant of any land to their ancestor by the Plaintiffs’ ancestor and pleaded a grant to them by one Abayomi. The defendants pleaded in paragraph 16 of their Statement of Defence that:-
“Tijani Olapade built his house (on the land in dispute) about 15 years ago while Madam Adunola built her own about 14 years ago.”
In their paragraph 28 of their Statement of Defence, the defendants pleaded:
“The defendants will also rely on estoppel, Laches and acquiescence”.
After due hearing, the learned trial judge had “no hesitation in accepting the plaintiffs’ story that the Kuwo trench or drainage is the boundary mark between Ariori family land and the Alalubosa family (that is between the Plaintiffs’ land and the Defendants’ land). The learned trial judge then found as follows:-
i. “That the Kuwo drainage or trench forms the boundary between the Plaintiffs’ family and the Defendants’ family.
ii. That the buildings constituting the Ariori family Compound are so positive and numerous to warrant the declaration that the plaintiffs’ family own the land in dispute.”
From the above findings, the learned trial judge made the following declaration:-
“I hereby declare that the Defendants are the owners of the area verged green on Exhibit A (plaintiffs’ plan) and the Plaintiffs are the owners of the remaining land on that plan.”
It has to be noted that the area verged green was the area the plaintiffs’ ancestor granted to the defendants’ ancestor – the outright grant. On the issues of trespass, the learned trial judge observed:
“The defendants said that there are five buildings on the land in dispute, and that the ages of the buildings range from 12 to 18 years. Accordingly, in my view, I think the Plaintiffs’ claim for damages for trespass is a stale claim; the Plaintiffs have acquiesced for far too long in the defendants’ acts of trespass and they are deemed to have waived their rights to sue for trespass. I therefore dismiss the claim for trespass.”
On the issue of Injunction, the learned trial judge observed and held:-
“I cannot now restrain the 2nd Defendant, Madam Adunola, Raufu, Alhaji Suara, and Olaleye from making use of their buildings or houses which have been built over 12 years ago. But I hereby restrain members of the Defendants’ Alalubosa family from:
(1) making or erecting any new structures on the laud in dispute and
(2) any further act of selling, leasing, mortgaging or otherwise disposing of any land in the area in dispute.”
The trial Court thus granted the plaintiffs a declaration of title and a limited injunction. The claim for damages for trespass was refused as it was in the words of the trial judge “a stale claim.”
The defendants appealed to the Court of Appeal, Ibadan Division against the above judgment of Fakayode, J. (as he then was). The Court of Appeal Ogunkeye, J.C.A., Akanbi and Uche Omo, JJ.C.A. concurring) dismissed their appeal as totally lacking in substance and further observed:”
I think on the evidence, the learned trial judge was quite liberal in allowing the building to stand on the land in dispute and since in my view, the cause of dispute is the building of those houses, the effect of the success of the” plea of acquiescence cannot be extended to the remaining land on which no building has been erected.”
The defendants have now appealed to this Court against the judgment of the Court below dismissing their appeal from the judgment of Fakayode, J. (as he then was).
I have had the privilege of reading in draft the leading judgment of my learned brother Uwais, J.S.C. just delivered. I am in complete agreement with him that this appeal should be dismissed and for the reasons so lucidly and ably advanced. I will however like to comment briefly on the defence of Estoppel, Laches and Acquiescence with regard to the respondents’ claim for declaration of title under customary law.
Estoppel
In London Joint Stock Bank v. Macmillan (1918) A.C. 777 at p. 818 Vis-count Haldane observed:
“Estoppel is hardly a rule of what is called substantive law in the sense of declaring an immediate right or claim. It is rather a rule of evidence capable none the less, on that account, of affecting gravely substantive rights.”
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. In the case now on appeal but for the estoppel, the respondents’ claim for damages for trespass would have succeeded. 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: Simm v. Anglo American Telegraph Co. (1879) 5 Q.B.D. 188 CA per Brett L.J. Estoppel is only a defence and not a cause of action.
Acquiescence in Adverse Possession
The estoppel found by the learned trial judge in the case on appeal is that the Plaintiffs/Respondents by their conduct; by failing to assert their rights over a period of 12 to 18 years (as alleged by the defendants/appellants) should be taken to imply that they consented to the appellants’ erecting the 5 buildings on the land, at least they are debarred from asserting the contrary. And this why the Court of first instance dismissed the respondents’ claim for trespass. The respondents, according to the learned trial judge, are estopped by their acquiescence from complaining about, or having redress for, the injury or wrong to their possession (trespass) by the building of those 5 houses.
But the appellants’ main contention is that the respondents should also lose their right to title and consequently and inferrentially that they (the appellants) should have a prescriptive title. Lapse of time is generally evidence of acquiescence but acquiescence is not just mere lapse of time.. In Abbey v. Ollenu (1954) 14 WACA 564 at p. 568, the West African Court of Appeal quoted with approval and adopted the dictum of Fry, J. in 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.”
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. “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 no 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.
The question that now arises is this – From the pleadings and evidence of the parties, is there anything in the conduct of the respondents that will give rise to the conclusion that the respondents behaved fraudulently; that they wilfully remained passive when the five buildings were being erected by the appellants in order afterwards to profit from their mistake From the pleadings and from the evidence accepted by the trial court, the answer should be in the negative. The learned trial judge in his judgment stated categorically – “I have no hesitation in accepting the plaintiffs’ story that the Kuwo trench or drainage is the boundary mark between Ariori family land and Alalubosa family land especially if due regard is paid to the incredible evidence of the defence.” But before we come to the Kuwo trench, what was the respondents’ case It was this:-
- That their ancestor Ariori made an outright grant of the area verged green to the ancestor of the appellants Alfa Abibu.
- That Ariori also allowed appellants’ ancestor permission to use the marshy area to plant onions hence he was nicknamed Alufa Alalubosa.
- That the appellants were therefore on the marshy land now in dispute with the leave and licence of the respondents. In other words, their possession of the land in dispute was not adverse possession.
- That for over twenty years the appellants’ family ceased to use the land in dispute for planting onions.
- That about 1967 the appellants started putting up buildings on the land in dispute and the respondents protested; warned the appellants to desist; reported the matter to the Olubadan in-Council. In spite of all these steps taken by the respondents to assert their right the appellants persisted in their acts of trespass – the building of the 5 houses.
With the greatest respect to the learned trial Judge, the above facts (which he believed) do not support his conclusion that “the plaintiffs have acquiesced for too long a time in the defendants’ acts of trespass and they are deemed to have waived their rights to sue for trespass.” There was no acquiescence at all. But the respondents have not appealed against the dismissal of their case for trespass. In the court below, it was submitted, as was also done in this Court that acquiescence in law has the effect of extinguishing a plaintiffs title and reliance was placed on the case of Atuanya v. Onyejekwe (1975) 3 S.C. 161 at p. 171. In that case this court held at p. 171 that:-
“It is our view that the evidence and the particular circumstances of this case are such that the doctrine of acquiescence cannot be invoked … ”
The Court below after referring to Atuanya’s case supra observed and rightly in my view:-
“But the case in hand is entirely different. I think, on the evidence, the learned trial judge was quite liberal in allowing the buildings to stand on the land in dispute.”
I share that view too. 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. I entirely agree with Lord Cranworth that “if a stranger builds on my land, knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights: Ramsden v. Dyson ibid pp. 140-141: Nwakobi v. Nzekwu (1961) All N.L.R. 445 at p. 450.
As the Court below observed, the learned trial judge was very liberal in allowing the 5 buildings to stand on the land in dispute. For my part, I will only add that the appellants are very lucky that the respondents did not file a cross appeal.
We did not call on learned counsel for the respondents to reply because there was no need for that.
In the final result, for the above reasons and for the fuller reasons given in the leading judgment of my learned brother Uwais J.S.C., I too will dismiss this appeal and it is hereby dismissed with costs to the respondents which I assess at N300.00.
Appeal Dismissed
SC.66/1983
