Alhaja Wulemotu Ajibona V. Alhaji Surajudeen Kolawole & Anor (1996)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C.

The claims of the plaintiff/appellant in the High Court of Lagos State were for:-

“1. Declaration of title in fee simple against the defendant to the piece or parcel of land, situate lying and being at Apesin Street, known as No. 27/29 Apesin Street, Idi-Araba, Surulere and therefore entitled to the statutory right of occupancy in respect of the said piece or parcel of land situate, lying, being and known as 27/29 Apesin Street, Idi-Araba, Lagos.

2. Possession of the aforesaid piece or parcel of land.
3. Injunction to restrain the defendants, his heir(s), successor(s), agent(s), servants and/or assigns from further interfering (sic) with the plaintiff’s possessory rights as to the aforesaid land.”

The writ of summons was filed in Lagos at the Lagos Judicial Division of the High Court. Pleadings were ordered, filed, settled and exchanged and at the close of pleadings, the matter came up for hearing before Adeniji, J. After hearing evidence of witnesses called by the parties and addresses of counsel, the learned trial Judge gave judgment in favour of the plaintiff. He granted all the reliefs claimed by the plaintiff.

He observed and said:-

“The evidence of traditional history led for the plaintiffs and the supporting exhibits tendered by the witnesses were not effectively discharged by the defendant and I prefer it to that of defendant. I accept the traditional evidence led for the plaintiffs in this case. I hold that it is enough ipso for their claim for declaration to be granted.

The defendants counsel relied on the equitable defences of laches and acquiescence. This argument is that the defendant erected his building on the land in 1953 and no (sic) such the plaintiffs are deemed to have slept on their right.

In the case in question, the plaintiffs were not aware of the presence of the defendant on the land and the building on it until sometime after 1972.

It seems to me that the delay on the part of the plaintiffs is not enough to justify the defence of laches and acquiescence set up by the defendant.

I hold that the plaintiffs have better title to the land in dispute, and the defendant is on the land without the permission of the plaintiffs, and the claim by the plaintiffs for a declaration of title against the defendant has been established and (sic) therefore grant the declaration.

I also make an order for possession of the plots of the land situate and lying at Nos.27/29 Apesin Street, Idi-Araba, Surulere, Lagos. The defendant, his agent, heirs, successors are hereby restrained from future interference with the plaintiff’s statutory right in respect of the said parcel of land.”

Being dissatisfied, the defendant appealed to the Court of Appeal and in his brief of argument raised the following issues for determination:

“1. Was the defence based on limitation law not made out on the evidence and ought it not to have succeeded and the plaintiff’s claim to title barred and extinguished and her claims dismissed

2. Ought the equitable defences of laches and acquiescence not to have succeeded and the reliefs claimed by the plaintiff refused and her claims dismissed.
3. Is the judgment not against the weight of evidence”

In an unanimous decision, the defendant’s appeal was allowed and the plaintiff’s action was dismissed. The three justices agreed that the plaintiff’s claim should have been dismissed on the ground that she did not establish her title to the land in dispute. They disagreed on the operation of the Limitation Law. Uwaifo and Pat-Acholonu, JJ.C.A. were of the view that it did not operate against the plaintiffs. Ayoola, J.C.A. held that the plaintiff’s claim was statute-barred and should have been dismissed on that score alone.