Alhaji Raji Oduola & Ors V. Ibadan City Council & Anor (1978)
LawGlobal-Hub Lead Judgment Report
FATAYI-WILLIAMS, J.S.C.
The plaintiffs (now appellants) are the descendants of one Balogun Ibikunle of Ayeye Quarters in Ibadan in Oyo State. The first defendant is the local authority for Ibadan. The second defendants are a limited liability company registered in Nigeria. They carry on business on the land in dispute which is situated at Lebanon Street and Onireke Street in Ibadan.
The land in dispute originally belonged to the late Balogun Ibikunle. It is marked red with letter G in it on plan No. CK22/66 of 22nd 1966.
In 1902, that is about 76 years ago, one Fajinmi who then reigned as the Bale (now designated as the Olubadan) of Ibadan asked the descendants of the late Balogun Ibikunle for a large parcel of land. The land was to be used as a market site by strangers who came to Ibadan for trading and other commercial purposes. At that time, one Oyedeji, a son of Balogun Ibikunle and the father of the second plaintiff, was the head of the Ibikunle family. He was also the Chief Areago to Bale Fajinmi himself. Oyedeji agreed to the request of Bale Fajinmi. He thereupon earmarked some of the lands of the late Bale Ibikunle for the purpose of establishing the said market and commercial centre for strangers in Ibadan. The site thus earmarked included the land now in dispute which is edged red on the plan No. JOL/122 attached to the deed of lease (Exhibit F) registered as No. 11 at page 11 in Volume 87 in the Lands Registry at Ibadan. Oyedeji requested and Bale Fajinmi agreed that tolls would be paid to the Ibikunle family by persons who would erect market stalls on the site but no toll was, in fact, paid by any of the users of the site.
From 1903 to 1933, the Ibadan Native Authority which is the predecessor of the 1st defendant, used the particular land in dispute as its Treasury Office. It was later used as its Electricity Undertaking Office from 1938 to 1941. There was no objection to the user although Alhaji Oduola (1st plaintiff) had been passing and repassing the land in dispute for over 50 years since it was earmarked for the market site. Be that as it may, the plaintiffs, in 1949, commenced proceedings in Suit No. I/120/1949 against the predecessors-in-title of the 1st defendant. In these proceedings, they claimed declaration of title to a large piece of land which included the land now in dispute. The proceedings originally started in the Lands court (Native Court) in Ibadan but was later transferred to the Supreme Court (now High Court). For some inexplicable reason, the hearing was protracted and judgment was not delivered until 2nd April, 1958, when the learned trial Judge, in a reserved judgment, observed as follows:-
“The plaintiffs have satisfied me that in the distant past, they owned all the land shown in the plan Exhibit ‘A’. They admit in their own evidence that, at the request of the defendant they had given at different times portions of this land to the defendant in accordance with their duty under Native Law and Custom, the defendant having promised them certain benefits. I am satisfied that those benefits have not been accruing to them. I am also satisfied that that portion of the land, which is hard to determine, has reverted back to the plaintiff not by operation of law but by some reasons not made clear in evidence; also portions have by consent or acquiescence of the plaintiffs, been given away to non-natives of Ibadan without payments of rents under the speed leases (which only re-establish the purposes of the original acquisition by the defendant).
Certain portions have also found their way to the hands of natives of Ibadan by sale or otherwise. I find it difficult to determine which is which. It will, however, not be difficult to determine if a plan is made out for the purpose although as I stated earlier, the facts are in the possession of the defendant and not the plaintiffs which makes the difficult for the plaintiffs. It is, however, in the interest of justice that the defendants should undertake to make a detailed map or plan showing each plot and the present holder or lessor. With good will on either side the whole matter could easily be settled.”
Following this observation, the learned trial Judge non-suited the plaintiffs after stating as follows:-
“As stated earlier, the plaintiffs themselves are still exercising acts of ownership on a portion of the land they now claim. The extent of that portion is not easy to demarcate and has not been demarcated on the plan, but the fact is in evidence as well as the confused state of other portions. Also, owing to the fact that the plaintiffs themselves have granted the land to the defendant, it is difficult to expect a declaration of ownership to the plan Exhibit ‘A’. They cannot have what they themselves say they had given away. They may, however, be entitled to a declaration in respect of what has reverted to them if that extent of land can be determined, and also declaration as to reversionary rights. What I think they are entitled to from the defendant may possibly be sought in another form of action and not in an action for a wholesale declaration of all the land they had given away.
I do not think their action in the present form is appropriate or if it is, evidence is insufficient to grant a declaration to the whole land claimed, or to portions not specifically carved out.”
(The underlining is ours). There was no appeal against this judgment.
Meanwhile, although the proceedings to which we have referred to above was still pending in the High Court at Ibadan at the time, the 1st defendant in the present case (who was the sole defendant in those proceedings) granted a lease of the land now in dispute in the present case, and which, as we have pointed out earlier, is a portion of the land in dispute in the earlier case (the 1949 case), to the 2nd defendant on 23rd May, 1954, by deed of lease (Exhibit G). The lease in Exhibit G is for a term of 99 years. In other words, the land now in dispute had been transferred to third parties before the judgment of the High Court in 1958.
Notwithstanding what the learned trial Judge said about the claim of the plaintiffs to the larger area of land (which includes the area now in dispute) in the 1949 case, and the leasing of part of the land to the 2nd defendant in 1954, the plaintiffs waited for another 11 years before commencing the present proceedings against the same defendant as in the 1949 case. Admittedly, the lessee in the deed of lease (Exhibit G) was joined as second defendant. Their claims read:-
“The plaintiffs’ claim against the defendants jointly and severally is for:
(1) Declaration of title to all that piece or parcel of land situate at Lebanon Street, Gbagi, Ibadan and more particularly described in the plan to be filed in court.
(2) possession of the said piece or parcel of land.”
At the hearing, Alhaji Raji Oduola (1st plaintiff) made the following admission under cross-examination-
“Since Balogun Ibikunle’s time my family have been resident in Ibadan. In fact I was born in Ibadan. I am about eighty years. I have been passing and repassing the land in dispute over 50 years ago… The land in dispute was used by the 1st defendant predecessors called Native Authority as offices for its Electricity Department. The Electricity Department of the N.A. was on the site in dispute from 1938 to 1941. From 1903 to 1933 the land in dispute was used as Native Authority Treasury. The Native Authority employed one Shodeinde, a carpenter, to work on the land in dispute. I know the Ibadan Native Authority and later the Ibadan District Council and successors got rent on land of Gottschalk Company. Gbagi Street is also called Lebanon Street. In that area we have Gottschalk, then the 2nd defendant, then Babalola’s property, then C.F.A.O. 1st defendant is the landlord to C.F.A.O.” (The underlining is ours)
For the defence, one Salimonu Oyewusi Ladele (1st Defence witness) the Estate and Valuation officer of the 1st defendant, testified as follows:-
“I know the land in dispute. The 2nd defendant is a lessee of the 1st defendant in respect of the land in dispute. There is a deed No. 11/11/87 (tendered and marked Exhibit G). The land in dispute is shown in Exhibit D as verged red. The land in dispute is called Gbagi Block 1 Plot 2 or Block 1(2). The next plot is Gbagi Block 1 Plot 1 or Block 1(1) which also belongs to the 1st defendant since 1900. The first defendant owns the buildings and the land on Block 1(1) Gbagi. First defendant also owns Gbagi Block 1 Plot 3 or Block 1(3)…Block 1(3) was leased to a Mr. Taylor on 13/8/1919. The portion marked C.F.A.O. on Exhibit C belongs to 1st defendant since 1900. The land in dispute was purchased from one Shodeinde in 1903…The Native AuthorityTreasury was on the land in dispute from 1903 to 1929. The Native Authority is constituted by the Bale of Ibadan and his chiefs. The Bale and chiefs leased the land in dispute to the African club from 1930 to 1938. The club paid rent. From 1938 the Native Authority i.e. Bale and council used the land in dispute for its Electricity Undertaking or Office up till 1953 when the Electricity Corporation of Nigeria took over the Electricity undertaking on the land in dispute up till 1954. In 1954 the land was leased to the 2nd defendant by the 1st defendant. In Exhibit G the offices of the E.C.N. are shown on the land in dispute. The buildings or offices were erected by the 1st defendant. The 2nd defendants are still on the land as tenants to the 1st defendant. The 2nd defendants have erected a big building on the land in dispute. The plaintiff’s family is a large chieftaincy family in Ibadan. The plaintiffs’ family were all aware of the dealings with the land since 1900 till now. At no time did 1st defendant concede title to the land in dispute to the plaintiffs.”
(The underlining is ours)
The witness was not cross-examined on this portion of his testimony and no rebutting evidence was adduced by the plaintiffs. Mr. Adebiyi Majekodunmi (2nd D/W), a director of the 2nd defendant and the only witness who testified for the company, confirmed the various uses to which the particular land had been put by the 1st defendant. He also confirmed the lease of the land to the 2nd defendant in Exhibit G and then testified as follows:-
“After the execution of Exhibit ‘G’, the 2nd defendant demolished the existing structures on the land in dispute and erected thereon 200,000 Pounds worth of buildings which stretch from Lebanon Street to the hind street called Onireke Street or Road. From the demolition of the former buildings on the site to the completion of the 2nd defendant’s buildings on the land in dispute nobody disturbed the 2nd defendant. The 2nd defendant’s buildings on the land in dispute are not for residential purposes but 2nd defendants carry on their business as general merchants in the said buildings daily from morning till night. The first time plaintiffs challenged 1st defendant’s title was in 1969.”
After reviewing the evidence adduced before him, the learned trial Judge, in a reserved judgment, found, inter alia, as follows:-
(1) From the totality of the evidence in this case I find as a fact that the land in dispute was part of late Balogun Ibikunle’s land that was granted or set aside by Oyedeji, Balogun Ibikunle’s son, over 70 years ago for the purpose of creating a market centre for strangers in Ibadan and that this grant was made at the request of Fajinmi, the then Bale of Ibadan.
(2) So I accept the plaintiff’s contention that the land in dispute originally formed part of their family land which was set aside at the request of the 1st defendant’s predecessor (i.e. Bale Fajinmi) over 70 years ago for it to be used as a market site or commercial centre for strangers.
(3) If land is granted for such purpose as farming, occupation or market and the farming, occupation or market fails or ceases or is abandoned then the land must revert to the grantor. Similarly, if land is granted for a specified period of time, e.g. a lease or tenancy and the time runs out, the land must revert to its owner. I hold therefore that the original grant of the land in dispute is a grant less than an absolute title because it was for a specified purpose and that when the purpose fails or ceases to exist, the land must revert to the owner unless there are such circumstances that would extinguish the original owner’s title in the land or bar the owner’s action for ejectment or repossession.”
The learned trial Judge then proceeded to consider the defence of laches and acquiescence put forward by the defendants, found that it was well founded, and then dismissed the plaintiffs’ claims.
The plaintiffs appealed to the former Western State Court of Appeal. Their appeal was dismissed and the judgment of the High Court was affirmed for precisely the same reasons.
Being still dissatisfied, they have now appealed to this court on the following grounds
“1. The Court of Appeal erred in law in dismissing the appeal when it was clear from the pleadings and evidence on record that the first respondents (through whom the second respondents claimed) founded their case upon ownership of the land in dispute by conquest but failed to prove that ownership or other title.
- The Court of Appeal erred in law in holding that the equitable defences raised by the respondents were maintainable against the appellants when:
(a) The appellants were not aware of their rights until 1958 or thereabouts.
(b) The appellants’ conduct in the whole transaction was unexceptionable.
(c) The Bale-in-Council (and their successors-in-office) from whom the respondents claimed were in a position analogous to that of trustees for the appellants.
(d) Appellants promptly sued out their writ upon discovering that the respondents raised adverse claims to their land in dispute.
(e) Second respondents who knew (or should know) of the pendency of Suit I/120/49 (judgment delivered on 2nd April, 1958) took a lease of the land in dispute from the respondent and built its shop.”
For the appellants, Mr. Olisa Chukura, learned counsel, who argued the two grounds of appeal together, submitted that once the High Court had found as a fact that the land in dispute originally belonged to the plaintiffs/appellants, it was not open for that court and the Western State Court of Appeal to hold that the plaintiffs/appellants were caught by laches. Learned counsel also contended that where land is granted for a specific purpose and that purpose fails as in this case, the land reverts to the original owners. He, however, conceded that the plaintiffs/appellants did not bring the present action until about fifteen years after the 2nd defendants/respondents had taken a lease of the land from the 1st defendant/respondent and had gone into possession.
After stating that if time is relevant at all, it should not start to run against the plaintiffs/appellants until after the first judgment was delivered in 1958. Learned counsel further submitted that for laches to bite, the original possession of the 1st defendant/respondent must have been adverse, and the plaintiffs/appellants’ conduct must have amounted to fraud. Learned counsel did concede again that the survey plan (Exhibit ‘D’) on which the plaintiffs/appellants’ claim was predicated is inconclusive because the agreement regarding the area verged pink therein (which includes the area in dispute), reached between the plaintiffs/appellants and the 1st defendant/respondent, was not attached to the said plan. Finally it was contended by learned counsel that the fact that the plaintiffs/appellants sued the 1st defendant/respondent in 1949 did not show inaction on their part but had to admit that time would begin to run from the time judgment was delivered in the first case in 1958. Dealing with the case of the 2nd defendant/respondent, learned counsel contended that since they were granted the lease in 1954 while the first case was pending in the High Court, they had no leg to stand on as they must be deemed to have had notice of the 1949 case which they (the appellants) had against the 1st defendant/respondent.
In reply, Chief Akinjide, for the 1st defendant/respondent made the following submissions. The uses to which the land had been put by the Olubadan-in-Council at all material times were known to the plaintiffs/appellants’ family. They knew that these uses were inconsistent with and adverse to their title but they did nothing. In fact, they acquiesced in it. The trial Judge was, therefore, right in holding that the 1st defendants/respondents were in adverse possession of land which included the land in dispute for seventy years. On the defence of laches and acquiescence put forward by the defendant/respondent, learned counsel submitted that the evidence of Alhaji Raji Oduola (1st plaintiff) together with the testimony of the witnesses called by the defence made the conclusion arrived at by the learned trial Judge inevitable. Learned counsel then pointed out that there is incontrovertible evidence, given by the 1st defendant/respondent’s Estate and Valuation Officer (D.W.1), that the land in dispute shown as Exhibit G in the plaintiffs/appellants’ survey plan (Exhibit D) is sandwiched between two other pieces of land described as Block 1(1) and Block 1 (3) which are owned by the 1st defendant/respondent; he then contended that what is true of those two pieces of land must also be true of the land in dispute. Finally, learned counsel submitted that on the evidence adduced and which the learned trial Judge accepted, it would have been most inequitable to grant the plaintiffs/appellants’ claims. Mr. Dele Awoniyi, who appeared for the 2nd defendants/respondents, adopted all the arguments put forward by learned counsel for the 1st defendant/respondent. He, however, added that, in any case, the user to which the land was put, in so far as the 2nd defendants/respondents (who are strangers) was concerned, did not disclose any derogation from the purpose to which the land was originally granted by the plaintiffs/appellants to the 1st defendant/respondent in 1900. He finally submitted that since the plaintiffs/appellants must be deemed to be aware of the developments which the 2nd defendant/respondent was carrying out on the land and did nothing to stop them, it would have been inequitable for the learned trial Judge to hold that the plea of laches could not be sustained.
What in equity is laches In our view, the gist of this equitable doctrine is that a plaintiff will be banned, unless he has been reasonably diligent, from seeking relief from the court. The doctrine is, however, broadly applied by the courts in the light of the type of relief sought and the circumstances. The doctrine applies where it would be practically unjust to give a remedy, either because the plaintiff has, by his conduct, done that which might fairly be regarded as a waiver of it, or where by his conduct and neglect, he has, though perhaps not waiving that remedy, yet put the defendant in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted. Of course, in either of the above cases, lapse of time and delay are most relevant. If, however, the argument against relief, which otherwise would be just, if founded upon mere delay which does not amount to a bar by any statute of limitations, the validity of the defence of laches must be considered upon principles which are substantially equitable. Be that as it may, two important circumstances 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 it relates to the remedy. (See Lindsay Petroleum Co. v. Hurd (1874) L.R. 5 P.C. 221 as per Sir Barnes Peacock at p. 239). But, as had been succinctly explained by Lord Radcliffe in Nwakobi v. Nzekwu (1964) 1 WLR 1819 (P.C. ) at page 1024, -“Laches involves essentially a personal disqualification on the part of a particular plaintiff. It cannot be treated as a stigma on the title to land which, once impressed, necessarily descends with the title and affects all succeeding owners. In this it is to be distinguished from a defence such as estoppel in pais which, given the words or acts upon which a defendant has relied and altered his position, bars the remedy from that time on, both in the hands of the original actor and in the hands of those who claim title through him. Laches is not like this. It does not bite at an identifiable moment of time and it can be relied on only when account had been taken of all the circumstances that affect both the immediate plaintiff and the immediate defendant. Lapse of time is always one of these circumstances, and the inaction of a predecessor is not a matter to be ignored, for such inaction may itself lend some support to the defendants’ equity.”
(The underlining is ours) In the case in hand, the learned trial Judge found as follows:-
“In the case before me it is common ground between the parties that the land in dispute was used by 1st defendant’s predecessors (a) as a Treasury Office for 26 years from 1903 – 1929; (b) for recreational purposes of the African Club for 8 years from 1930 to 1938; (c) as Electricity Office for 14 years from 1938 to 1954; and (d) from 1954 till the present time as 2nd defendants’ trading store or shop. So as far back as 1903 i.e. over 60 years ago, the plaintiffs’ family had had the right to claim their reversionary title and possession of the land in dispute because of non-payment of the promised tolls and non-user of the land in dispute for market purposes. The plaintiffs made weak efforts at one time between 1931 and 1946 and again in 1949 to assert their rights to the land in dispute. Apart from these two solitary occasions, they had, by their neglectful conduct, allowed the 1st defendant and its predecessors to regard the land in dispute as their absolute property by using it as such for their offices and by leasing it out to tenants like the 2nd defendants or the African Club. A plaintiff faced with the defence of laches and acquiescence may succeed in his claim if he can make a reasonable explanation for the cause of his delay to assert his rights. Such explanations may be (i) that he was all the while ignorant of his rights or that he lacked full knowledge of the existence of such rights or (ii) that he was all the while under legal disability or incapacity; or (iii) that he was under undue influence or that he lacked free will. There is no such explanation by plaintiffs in this case. In fact the evidence is to the contrary. For over 70 years the 1st defendant by itself and through its predecessors had been exercising acts of ownership on the land in dispute by way of leasing it out, collecting rents, using it for its offices, failing to pay any toll or fees or rent to plaintiffs’ family in respect thereof and by permitting 2nd defendants, as far back as 1954 i.e. 18 years ago to erect buildings worth 200,000 Pounds on the land. These acts of ownership by 1st defendant and its predecessors are acts which are inconsistent with plaintiffs’ family title to the land in dispute and are acts which are positive and numerous and have extended over a great length of time that in my view I think it quite inequitable to grant plaintiffs’ claim for title and possession of the land in dispute.
In Akpan Awo v. Cookey Gam (1913) 2 NLR 100 it was held that it was inequitable to deprive the defendants of property of which they have held undisputed possession and in respect of which they have collected rents for as long a period of time as 21 years with the knowledge and acquiescence of those who were disputing the defendants’ title. If the plaintiffs’ family had originally granted possession of the land in dispute to 1st defendant’s predecessors then such long possession in 1st defendant and its predecessor would only operate to bar a claim for ejectment or possession and would not bar a claim for title – see Oloto v. Williams (1943) 7 NLR 270 and Oshodi v. Imoru (1936) 3 WACA 93. But plaintiffs’ family only constituted 1st defendant’s predecessors as manager or caretaker of the land granted nearly 70 years ago to be used as a market site by strangers. Contrary to the terms of the grant, 1st defendant and its predecessors went into and have been in possession by itself and through its tenants, thus creating adverse possession for nearly 70 years. Failure to assert one’s rights of title to land for a considerable length of time as 66 years will bar such rights when due regard is paid to the facts of others in respect of the land during the interval – (See Suleman v. Johnson (1951) 13 WACA 213).”
In the face of this finding, the application of the doctrine of laches, as explained above, to the plaintiffs’ claim against the two respondents by the learned trial Judge is inescapable.
As a matter of fact, the facts of the present case are not unlike those in Lajide Onamogha Akuru v. Olubadan-in-Council (1954) 14 WACA 523. In that case the plaintiff claimed against the Ibadan Native Authority a parcel of land as belonging to his family, and damages for wrongfully leasing it to some firms. He also complained of wrongful collection of rents by the defendants. His case, which is similar to the plaintiffs’ case here, was that his ancestor had settled on the land in 1824 and occupied it until 1900 when the Bale’s council established a market there with the permission of the plaintiffs’ family who collected tolls from those using the market. In 1904, the Native Authority began to allow European traders to build on the land and received rents from them without giving the plaintiffs’ family any share of the rents. The family did not protest at the time. Again, in 1919, when a commission of enquiry was appointed to enquire into the holdings of non-natives, they still did not complain. Lastly, when in 1937 a portion of the land was acquired by the government, the family did not put in any claim for compensation. Because of all these facts, the court held that a claim for declaration of title being a discretionary remedy, even if the plaintiff had made out a claim to full ownership of the land up to 1904, the laches and acquiescence of his family since then destroyed any right which they might have had to such declaration.
In the case of the 2nd defendants/respondents, the first plaintiff (Alhaji Raji Oduola), who admitted that he had been passing and repassing the land in dispute during the last fifty years, must have been aware of the expensive development going on on the portion leased to the 2nd defendants/respondents by the 1st defendant/respondent. He and his family did nothing for eleven years. Of course, it may well be that they did nothing because, since the 2nd defendants/respondents were strangers at the time the deed was executed, their user came within the purpose of the original grant to the 1st defendant/respondent. In any case, the learned trial Judge must have considered the position of the 2nd defendants/respondents in the light of this testimony in order to see if the plaintiffs/appellants’ delay had prejudiced them. Of course, this, in our view, is a matter of positive inference from the evidence and it will be a factor to be considered in deciding whether to grant the 2nd defendants/respondents relief or not. Considering all the circumstances, we, for our part, think that quite apart from the contention as to user, this inexplcable delay must have prejudiced the 2nd defendants/respondents. We are, therefore, not surprised that the learned trial Judge came to the same conclustion and then applied the doctrine of laches in their favour as well. We recall that the trial Judge in the 1949 case found that since the plaintiffs/appellants had granted the land then in dispute (which includes the law now in dispute) to the 1st defendant/respondent, it would be difficult to grant them declaration of title to that law because they (the plaintiffs/appellants) could not have what they had given away.
The trial Judge also observed in his judgment in that case that all the plaintiffs/appellants would have been entitled to was a declaration as to their reversionary rights in the said land. The plaintiffs/appellants did nothing for eleven years to assert these rights. We also recall the undisputed testimony of Ladele (1st D/W) that the land now in dispute, which he referred to as Block 1(2), is sandwiched between two other parcels of land (referred to by him as Block 1(1) and Block 1(3) which are owned by the 1st defendant/respondent. There is also the evidence of Oduola (1st plaintiff) that the 1st defendant/respondent is the landlord to the C.F.A.O. in respect of another parcel of land nearby bearing in mind that there was no appeal against the judgment in the 1949 case, and having regard to the facts which we have highlighted above, the decision of the learned trial Judge in the present case that the defence of laches succeeded was inevitable.
For the above reasons, we are unable to see any merit in the grounds of appeal argued before us. The appeal, therefore, fails and it is dismissed. The judgment of the Ibadan High Court dismissing the plaintiffs’ claims as well as the decision of the Western State Court of Appeal dismissing the appeal against that judgment are affirmed. Costs in favour of the respondents are assessed at N330.00.
Other Citation: (1978) LCN/2067(SC)
