Dr Davidson Oguocha V. Prof Michael Ayodele Ajomo (2008)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J.C.A
This is an appeal from the Judgment of the High Court of the Federal Capital Territory, Abuja, in suit No.FCT/HC/CV/678/02-PROF MICHAEL AYODELE AJOMO AND DR DAVIDSON OGUOCHA delivered on the 3rd day of January 2007.
Briefly the facts of the case are that Respondent as plaintiff at the lower Court claimed as follows:-
(a) Possession of the premises
(b) An injunction restraining the Defendant whether by himself, his servants, agents, privies or otherwise howsoever from further trespassing on the premises.
The premises in question is the land known as Plot 677, Wuye District, Cadastral Zone B3, Federal Capital Territory, Abuja which was allocated to the Respondent by the Federal Capital Development Authority. The Respondent acquired a right of Occupancy over the land which was evidenced by a Certificate of Occupancy No: FCT/ABU/ED/2274 of 10th February 1999 registered as No:FC78 Page 78 in Volume 92 of the Land Administration, Land Registry Office, Abuja.
The Respondent claimed that the Appellant trespassed into the said plot of land without licence or consent from him. He also claimed that he never sold the plot of land to the Defendant nor did he authorize any person to deal with the land on his behalf.
The Appellant, who was the Defendant at the lower Court, did not deny the legal interest of the Plaintiff but stated that the Respondent through his agents sold the property to him.
At the conclusion of trial, Judgment was given in favour of the Respondent and the Court held that the Appellant has no legal nor legitimate interest in the land and as such the Appellant should deliver possession of the said land, and an order of perpetual injunction restraining the Appellant, his agents, privies, assigns and successors from the said piece of land was made.
The Appellant dissatisfied with the said Judgment now appealed to this Court.
The Learned Counsel for the Appellant formulated two issues for determination in the Appellant’s brief of argument as follows:-
“(1) Whether the Learned trial Judge failed in his duty when he relied on Exhibit “P3″ which is Court process in another proceeding in entering Judgment for the Respondent.
(Grounds 4, 5, and 6)
(2) Whether the Respondent had prior knowledge of any kind of the presence of the Appellant on the land and his activities of carrying on the construction of the said plot to enable Appellant evoke the defence of laches and acquiescence (Grounds 1, 2 and 3).”
The Learned Counsel for the Respondent did not formulate any issue for determination; he adopted that of the Appellant.
At the hearing, the Learned Counsel for the Appellant adopted and relied on the Appellant’s brief of argument deemed properly filed and served on 9th day of July 2008 and also the Appellant’s reply brief deemed properly filed and served on 10th day of November 2008.
He urged that the appeal be allowed and Judgment of the lower Court set aside.
The Learned Counsel for the Respondent on the other hand adopted and relied on the Respondent’s brief filed on 8th day of August 2008, and urged that the appeal be dismissed.
Issue I
Whether the Learned trial Judge failed in his duty when he relied on Exhibit “P3” which is Court process in another proceeding in entering Judgment for the Respondent. (Grounds 4, 5 & 6)
The Learned Counsel for the Appellant submitted that the learned trial Judge failed in his duty when he relied on Exhibit P3 which are Court processes in another proceeding in entering judgment for the Respondent. The said Exhibit “P3″ are the Appellant’s writ of summons, statement of claim and other processes in Tabik Investments, Davidson Oguocha AND Guaranty Trust Bank PLC – Suit No: FCT/HC/CV/1093/02.
Learned Counsel also submitted that prior pleading filed in an earlier case will not ordinarily be accepted as evidence in a later case. He relied on the following cases:-
-Odomba & Others vs. Odise & Others (1990) 1 NWLR Part 125:
-British Thomson Houston Company Limited vs. British Insulated and Helsby Gable Ltd (1924) 1 Ch Page 203 at 210:
-Adisa vs. Saibu (1977) 2 S.G. Page 115.
He also relied on the following cases on agency relationship:-
-Edem vs. Ganon Balls (2005) 12 NWLR Part 938 Page 80:
-Engineer Vassile vs. Pass Industries Nig. Ltd & Others (2000) 12 NWLR Part 681 Page 349.
Learned Counsel contended that had the Learned trial Judge attached little or no weight to Exhibit .P3”, he would have resolved the issue of sale of the land from the commissioned agent of the Respondent in favour of the Appellant.
The Learned Counsel for the Respondent on the other hand, submitted that Exhibit “P3” was relied upon by the Respondent to corroborate the non-existence of any sale transaction by which the Respondent transferred his interest in the land in issue to the Appellant. He stated that the said Exhibit “P3” is made up of the writ of summons and statement of claim in an action filed by the Appellant subsequent to the present action now on appeal.
The Appellant in his reply brief reiterated his earlier stand in the Appellant’s brief of argument and he urged that the appeal be allowed.
In this appeal the ground upon which the Appellant contended that the Learned Trial Judge ought not to have relied on Exhibit “P3” is that it is a prior pleading filed in an earlier case and it will not ordinarily be accepted as evidence in a later case. But a careful examination of Exhibit “P3” showed that it is a later action and later pleading. Exhibit “P3” was filed after this present action now on appeal.
Exhibit “P3” was relied upon by the Respondent to corroborate the nonexistence of any sale transaction between him and the Appellant.
On page 142 of the record of proceedings, the following were reflected.
“Court: Exhibit “P3″ shown to DW1.
DW1: the case was on my instruction. The case was against Guarantee Trust Bank. I made a report to the Police on this matter. Until I was sued by the Plaintiff I did not know that anything was wrong.”
The above proceedings showed that the Appellant had adopted Exhibit “P3” under cross examination and to that extent transformed what was in that pleading to his evidence.
It was therefore open to the Learned trial Judge to make an inference, which he properly did, that the subsequent conduct of the Appellant in instituting the proceeding comprised in Exhibit “P3” clearly shows that he knew he was dealing with swindlers or illegal agents and as it was clear to him that the draft of N5,000,000.00 was not paid to the Respondent, hence his subsequent action for repayment of the value of the draft to him.
Consideration could not have passed, and in the absence of consideration there was no contract.
A glean through the record of proceedings of the lower Court showed that the Learned trial Judge after reviewing evidence on both sides relied principally on the testimony of the Respondent and Exhibit “P3” was merely used to corroborate the testimony.
In view of the foregoing it could not be said that the Trial Judge failed in his duty when he relied on Exhibit “P3”.
This issue is therefore resolved in favour of the Respondent and against the Appellant.
Issue 2
Whether the Respondent had prior knowledge of any kind of the presence of the Appellant on the land and his activities of carrying on the construction on the said plot to enable the Appellant evoke the defence of laches and acquiescence.
The Learned Counsel for the Appellant referred to the testimony of the Respondent before the lower Court and he submitted that the Respondent’s son and Mrs. Iyabo Jegede who looks after the land were in the position to have informed the Respondent of the Appellant’s activities on the land.
He went further in his submission that the Respondent was aware all the while from 2001 and only surfaced in April, when he discovered that the Defendant has completed the house, which conduct the law frowned at. He relied on the case of Willmot vs. Borke 15 Ch. D Page 1105- 1106
He stated that the Respondent had the knowledge of the Appellant’s presence on the land and as such he was caught up with laches and acquiescence.
It was submitted by Counsel for the Appellant that acquiescence which will deprive a man of his legal right must amount to fraud. A man is not to be deprived of his legal right unless he has acted in such a way as would make it fraudulent for him to set up those rights. He stated that the elements necessary to constitute such a fraud are as follows:-
(a) The Plaintiff who sets up the doctrine must have made a mistake as to his legal right.
(b) Such a Plaintiff must have done some acts on the faith of his mistaken belief.
(c) The Defendant, the possessor of the legal right must know of the existence of his own right which is inconsistent with the right claimed by the Plaintiff, because the doctrine of acquiescence is founded upon the conduct with knowledge of one’s legal rights.
(d) The Defendant, the possessor of the legal right must know of the Plaintiff’s mistaken belief of his rights and if he does not there is nothing which calls upon him to assert his own rights.
(e) The Defendant, the possessor of the legal right, must have encouraged the Plaintiff in his expenditure of money or in the other acts which he has done either directly or by abstaining from asserting his legal rights.
Learned counsel for the Appellant referred to the case of:- Okereke vs. Nwankwo (2003) 9 NWLR Part 826 at Page 592. And he submitted that factors required for the application of defence of laches and acquiescence has been determined by the Supreme Court to include:-
(a) Evidence of an agreement by the Plaintiff to give up or release his right.
(b) Delay to enforce the right has resulted in the destruction or loss of evidence by which the claim might be rebutted.
(c) 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.
(d) The Plaintiff has not done anything as to induce the Defendant to alter his position on the reasonable belief that the main claim is being released or abandoned.
He went further in his submission that the above factors are present in this case under consideration. He referred to – Taiwo vs. Taiwo (1958) SCNLR Page 224.
He also submitted that finding of facts, evaluation and ascription of probative value to evidence is the work of the trial court and Court of Appeal will not ordinarily interfere with the finding of facts of the learned trial Judge, except where same is perverse or erroneous as a result of improper evaluation of evidence. He relied on the following cases:
– ACB Ltd v. Nwaodiugbu (1994) 7 NWLR Part 356 Page 330 at 334.
– Atolagbe v. Shorun (1985) 1 NWLR Part 2 Page 360
The learned counsel for the Respondent in his submission stated that the learned trial Judge who had the opportunity of listening first hand to the testimony of the Respondent had no doubt that he had no prior knowledge, actual or constructive of the construction by the Appellant on the land in dispute.
He submitted further that unless the Appellant is able to demonstrate that this finding was manifestly unsupportable by the evidence then it must stand. He relied on – Egri vs. Uperi (1973) 11 SC page 299
He submitted that the finding of the learned trial Judge was made after a proper evaluation of the evidence of the Respondent.
In order to determine whether the Respondent had prior knowledge of any kind of the presence of the Appellant on the land and his activities of carrying on the construction on the said plot, it would be necessary to examine relevant parts of the Respondent’s evidence.
On page 132 of the record of proceeding. The Respondent under cross examination stated thus:-
“I have been to the plot of land. I first visited the land about the year 2000. When I was there in 2000 the land was open, there were no infrastructures. t was wondering why they gave me land there. Each time I come to Abuja I tried to visit the land’ I don’t jive in Abuja but in Lagos. I come to Abuja fairly often because I am doing some job for the Federal Government. I don’t visit the land each time I am in Abuja because there is no cause for that. I cannot remember how many times I visited the site in the year 2001.
Apart from me and my so& the lawyer I have one Mrs. Iyabo Jegede who looks after the land. That’s the only person I do not know if she visits the land. Engineer Dapo Aiomo is my son. He lives in Abuja, it came to my knowledge that the Defendant is doing something on my land in the year 2002, when I asked my son to take the Swiss Company to the site. My son Engineer Dapo knows the location of the land. He is the one who went to the land when the Defendant told him not to come there since he has paid me. t think this happened in April 2002. My son reported to me that he saw a builder on the land and he tried to trace the owner of the building. He discovered that it is the Defendant, when he met the Defendant, the Defendant chased him away saying he has paid me.
Prior to April 2002, my son or anybody never reported to me that anything was going on the rand. As at April 2002, my son told me that there is a structure on the land”.
Delay which is sufficient to prevent a party from obtaining an equitable remedy is technically called laches. But that does not mean that laches consists simply of mere lapse of time. Such lapse of time must be coupled with the existence of circumstances which make it inequitable to enforce this claim.
On the other hand a man is not to be deprived of his legal right unless he has acted in such a way as would make it fraudulent for him to set up the right. Acquiescence which will deprive a man of his legal right must amount to fraud.
If a stranger begins to build on my land supposing it to be his own and I perceiving his mistake, abstained 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. But if a stranger builds on my land without my knowledge and knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive making it inequitable in me to assert any legal rights.
The Respondent in this appeal proved his title at the lower court and in my humble view where trespassers knowingly and unlawfully take possession of another persons land, the defence of laches is not available to the said trespasser and his successors in title.
See the following cases:-
-Okpaloka and Others vs. Umeh & Another (1976) 10 NSCC Page 519:
-Ogundaini vs. Araba (1978) 6 – 7 SC Page 55:
-Owie vs. Ighiwi (2005) 10 WRN Page 35.
After a careful examination of the evidence of the Respondent above, it is my view that the Appellant did not establish the Respondent’s knowledge of development on the land at the material time and therefore it would not be possible to rely laches and acquiescence.
One of the conditions for upholding a Defence of laches and acquiescence is delay. But Delay short of the statutory limitation period cannot however defeat any legal claim.
See – Baker Collins vs. Rhodes (1881) Chancery Division Page 230.
By virtue of Section 15(2) (a) Limitation Act, Laws of the Federation, the Respondent’s claim cannot be defeated by laches and acquiescence over a period of only about 1 year.
In the circumstance, it could not be said that the Respondent had prior knowledge of any kind of presence of the Appellant on the land in dispute.
See – Halsbury Laws of England 3rd Edition Volume 14 Paragraph 1181.
This issue is therefore resolved in favour of the Respondent against the Appellant.
In the final analysis this appeal fails in its entirety and it is hereby dismissed.
The Respondent is entitled to costs, which is fixed at (N35,000) Thirty- Five Thousand Naira against the Appellant.
Other Citations: (2008)LCN/3027(CA)
