Inspector Kayode V. Alhaji J. A. Odutola (2001)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

In the High Court holden at Ibadan Coram Ademakinwa, J., the appellant who was defendant, was sued by the respondent who was then the plaintiff, claiming from him (appellant) the following reliefs:

“(a) The sum of N1,200 being special and general damages in respect of continuing trespass committed by the defendant on the plaintiff land situate at Molete, Ibadan sometime in 1964.

Injunction restraining the defendant, his agents, servants or assigns from continuance of the aforesaid trespass.”

After pleadings were ordered, filed and exchanged by the parties – the respondent having earlier sought leave which was granted for him to amend his statement of claim – case went to trial. The respondent gave evidence and called only one witness in support of his case while the appellant thereafter testified in support of his case and called five witnesses. Learned Counsel for either side addressed the court and in a considered judgment delivered on 16th July, 1981, the learned trial Judge (per Ademakinwa, J.) dismissed the respondent’s claims in their entirety.

Briefly stated, the facts of the respondent’s case before the trial High Court were predicated on a root of title from IKUOLA Family, Thadan and for the purpose of tracing his source of interest, he equally relied on a deed of conveyance dated 28th day of May, 1946 registered as No.49 at page 49 in Volume 327 of the Land Registry in Lagos. He equally relied on the deed of conveyance dated the 16th day of August, 1949 and registered as No. 50 at page 50 in Volume 2 of the Lands Registry, Ibadan as well as possession vide paragraphs 5, 11 and 14 of the statement of claim. The respondent further relied on some judgments he got against some earlier trespassers on the land and the deed of 15th December, 1952, registered as No.26 at page 26 in Volume 50 of the Lands Registry, Ibadan.

The appellant on the other hand, relied on a grant under native law and custom from the representatives of the same IKUOLA Family in 1957 and a subsequently executed deed of conveyance dated 29th day of June, 1964 registered as No.23 in Volume 759 of the Lands Registry’s Office, Ibadan.

By paragraph 7 of his amended statement of defence, the appellant admitted that the respondent had earlier sued him in Suit No. III 83/64. He finally relied on the equitable defences of laches, acquiescence, stale claim and adverse possession.

The learned trial Judge then considered the case of each party and came to the conclusion that although the appellant proved his root of title yet the defences of laches, acquiescence, stale claim and adverse possession robbed him of his title as the evidence of laches etc put up by him was not contradicted, controverted or challenged by the respondent. Hence, the trial court dismissed the Respondent’s claim when it held in the penultimate paragraph of its judgment thus:

“In my view there is sufficient evidence of acquiescence and laches in this case to warrant the restraining of the plaintiff from exercising his legal right in respect of the land in dispute. See Morayo v. Okiade (1940) 15 NLR 131.

In the circumstances, the plaintiffs claim fails and it is accordingly dismissed …

Earlier on, the learned trial Judge had firmly held as follows:

“In the present case, there is evidence which I accept that the defendant had been on the land in dispute since 1964. I am also convinced that the defendant had completed his building by 1964 and people have already been living there. For the defendant to have put a three storey building on the land in dispute without the plaintiff knowing seems to me to be quite incredible. It is even significant that after being non-suited, according to the evidence adduced in 1973, the plaintiff still waited another four years till 1977 before instituting the present action. In the meantime, the defendant had under the mistaken belief that the plaintiff was no longer interested in pursuing the action committed further funds in extending his building on the land. One would have expected that having been in court for 9 years only to be non-suited, the plaintiff would have acted more timely in commencing the present action:’

Aggrieved by this decision, the respondent appealed to the Court of Appeal sitting in Ibadan (hereinafter in the rest of this judgment referred to as the court below). In a unanimous decision, that court (per Okunola, J.C.A. concurred in by Mukhtar and Dalhatu Adamu, JJ.C.A) held, allowing the appeal on 16th June, 1997, inter alia, as follows:

“I have considered the submission of both learned counsel to the parties vis-a-vis the records and the prevailing law. As conceded (sic) by both sides learned trial Judge found at page 42, lines 27 – 35 on title between the parties which is the bone of contention thus:

“Whichever way one looks at it, the plaintiffs title to the land in dispute is unimpeachable. Having found that the appellant is the legal owner of the land in dispute and since the defence of acquiescence as reviewed supra had collapsed, the learned trial Judge ought to have rejected the defences of acquiescence and laches and the appellant ought to have succeeded in his claim for trespass and injunction and I so hold.”

Being dissatisfied with this decision, the appellant has appealed to this court upon a notice of appeal containing six grounds.

The parties hereto filed and exchanged briefs of argument. The appellant, for his part, identified four issues as arising for determination, to wit:

ISSUE ONE

Whether the learned Justices of the Court of Appeal were right when they held that the registration of deed of conveyance was a notice to the appellant. See ground four of the grounds of appeal.

ISSUE TWO

Whether the learned Justices of the Court of Appeal were justified in making use of evidence elicited from cross-examination particularly when such facts were not pleaded. See ground one of the grounds of appeal.

ISSUE THREE

Whether the plea of laches, acquiescence etc. were not available to the appellant when the lower court had found that the plea was made out. See grounds two and three of the grounds of appeal.

ISSUE FOUR

Whether the learned Justices of Court of Appeal were right in holding that the appellant relied only on Exhibit J. when he in fact pleaded in paragraph 7 of his amended statement of defence the equitable defences of laches, acquiescence etc. See ground 6 of the grounds of appeal.

The two issues submitted at the respondent’s instance for our determination are:

ISSUE 1

Whether the equitable defence of laches and acquiescence availed the appellant having primarily based his claim on Exhibit J. (a deed of conveyance registered at a later date.)

ISSUE 2

Whether the learned Justices of the Court of Appeal were wrong in unanimously upholding the respondent’s appeal before it upon their consideration of Exhibit T and the defence of laches, acquiescence and stale claim put up by the appellant.

In my consideration of the issues for determination I propose to adopt the four issues proffered by the appellant and deal with issues I and 2 separately with issues 3 and 4 together for ease and convenience of treatment, as follows:

ISSUE ONE

The appellant’s query with this issue is whether the learned Justices of the court below were right when they held that the registration of the deed of conveyance (Exhibit ‘J’) constituted a notice to the appellant. Be it noted that both by his pleadings and oral evidence the appellant relied principally on Exhibit ‘J’ as his source of title from the IKUOLA Family from whom the respondent had equally earlier bought in 1949 the same parcel of land in dispute. By paragraph 6 of his amended statement of defence, the appellant pleaded thus:

“The defendant will contend at the hearing of this case that the defendant is the owner of the land in dispute by virtue of a deed of conveyance dated the 29th of June, 1964, and registered as No.23

at page 23 made between the defendant and the principal members of IKUOLA FAMILY had nothing to sell to the appellant again on the legal principle of nemo dat quad non habet.”

By paragraph 6 of the statement of claim the Respondent pleaded as follows:

“By an instrument dated the 15th day of December, 1952 and registered as No.26 at page 26 in Volume 50 of the Lands Registry in Ibadan made between the principal members of IKUOLA Family on the one part and the plaintiff on the other part, the IKUOLA FAMILY ratified the sale made to BELLO ADESHINA and the same by the said BELLO SOBALOJU ADESHINA to ODUTOLA brothers.”

The respondent testified in support of the above averment thus:

“In 1952, the principal members of Ikuola Family certified the sale to me. This is the instrument of Ratification – (Instrument tendered; no objection; admitted as Exhibit “D”)

The learned trial Judge in his judgment held inter alia:

“The evidence adduced by the defendant in support of his title to the land in dispute is not at all convincing. The deed of conveyance (Exhibit ‘J’) tendered by the defendant was executed in his favour not by his vendor but by three persons who described themselves as accredited representatives of IKUOLA FAMILY. Even assuming that the three persons who executed Exhibit ‘J’ in favour of the defendant had authority of Ikoola Family to do so, this document dated the 27th of June, 1964 being later in time than Exhibit ‘D’, which was executed in the plaintiff’s favour on the 15th of December, 1952 could not pass any title to the defendant as the family would as at that date have nothing more to pass.”

It is pertinent here to remark that earlier on in his judgment, the learned trial Judge had held as follows:

“Whichever way one looks at it the plaintiff s title to the land in dispute is unimpeachable.”

The court below after confirming the trial court’s decision to uphold the respondent’s legal ownership of the land in dispute held that since the defence of acquiescence as earlier reviewed had collapsed, the learned trial Judge ought to have rejected the defences of acquiescence and laches. Consequently, the respondent ought to have succeeded in his claim for trespass and injunction and court below rightly so held. See Karimu Ayinla v. Safawu Sijuwola (1984) 1 SCNLR 410; (1984) 5 SC 44 at pages 72 – 73 where with regard to registration of land, the case of Omosanya v. Anifowose (1959) SCNLR 217, (1959) 4 FSC 94 at page 98 was relied on in support of the proposition that “registration of an instrument under the Land Registration is not notice thereof to all the world.” Even if it was the Ikuola Family itself and not its purported accredited representatives earlier referred to that transferred the land in dispute to the appellant, Ikuola Family had nothing to transfer to the appellant again’. The truth of the matter is that the respondent did not only buy first from Ikuola Family, he even registered the conveyance in 1952 before the alleged sale under native law and custom to the appellant in 1957 and its subsequent execution and registration of a deed of conveyance by him in 1964 in respect of the same land. See Amankra v. Zankley (1963) 2 SCNLR 223, (1963) All NLR 3 10 at 313. Clearly therefore, the legal title of the appellant to the land in dispute as per Exhibit ‘J’ is not proved and his equitable defences are made to prop up a defective legal title as claimed.

On ISSUE No.2 which asks whether the learned Justices of the court below were justified in making use of evidence elicited from cross-examination, particularly when such facts were not pleaded, the short answer thereto is that upon a careful consideration of the pleadings I earlier adverted to, to the effect that any fact not pleaded goes to no issue either in his statement of claim or in his amended statement of defence vide as exemplified in such decided authorities as:

(i) Idahosa v. Oronsaye (1959) SCNLR 407;(1959) 4 FSC 166 at 171;

(ii) NIPC Ltd. v. Thompson Organisation Ltd. (1969) 1 NMLR 99 at 101;

(iii) Oladejo Adewuyi-Ajuwon & Ors. v. Fadele Akanni & Ors. (1993) (1993) 9 NWLR (pt.316) 182, 12 SCNJ 32 at page 35;

(iv) Abraham Olabanji & Anor. v. Salami Adeoti Omokewu & Ors. (1992) 6 NWLR (Pt. 250) 671 (1992) 7 SCNJ 266 at 267 and

(v) Abimbola George & 2 Ors. v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117; (1963) 1 All NLR 71 at 72 the principle enunciated therein which may be stated as:

“Evidence which is not material to any issue raised by the pleadings may be disregarded; the Judge was entitled to ignore any evidence bearing on illegality, even though obtained in cross-examination of the plaintiffs’ witnesses, as there is no issue of illegality before him.”

Albeit, since the purpose of cross-examination is to test the credibility of a witness, the admission by the defendant that the plaintiff had earlier sued him is admissible to negative his plea of acquiescence vide – Kaiyaoja v. Egunla (supra).

ISSUES NOS. 3 AND 4 CONSIDERED TOGETHER

The joint complaint of these issues considered together and which related to grounds 2 and 3 as well as ground 6 of the grounds of appeal was lastly treated. These issues maintained a two-pronged attack in respect of the respondent’s claims against the appellant at the trial High Court. There, he pleaded a deed of conveyance as his source of title to the land in dispute, though not in the alternative. He also put up the equitable defences of laches, acquiescence, stale claim and adverse possession ..

I am of the respectful view that the court below rightly rejected these equitable defences put forward by the appellant. This is because, there could indeed be loss of title through acquiescence and laches but a high degree of acquiescence is required to obliterate the original owner’s reversionary right in land in favour of an occupier. See Tiamiyu Dania v. Yesufu. Soyenu (1937) 13 NLR 143.

Thus, the respondent here cannot be said to be guilty of delay in commencing an action against the appellant as rightly observed by the court below because of lapse of time though generally, evidence of acquiescence is not just mere lapse of time. In Abbey v. Ollenu (1954) 14 WACA 567 at 568, the West African Court of Appeal adopted and quoted with approval the dictum of Fry J. in Willmot v. Barber (1880) 15 CH.D 96 at 105 thus:

“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 acted in such a way as would make it fraudulent for him to set up those rights.” See also Gerrard v. O’Reilly 3 D & WAR 414.

I cannot infer from the respondent’s conduct any act that could give rise to the conclusion that he behaved fraudulently or that he willfully remained passive when he became aware of the appellant’s acts of trespass on the land in dispute. Furthermore, for a delay in taking action, there must be knowledge on the part of the plaintiff of all the facts giving him a cause of action. See Mogaji v. Nuga (1960) 5 FSC 107, where it was held that laches is not delay alone; some other factors must exist such as knowledge. Besides, in addition to the action the respondent brought against the appellant in 1964, he (appellant) ought to have known that the respondent had interest in the land and ought to have exercised caution until the action was disposed of by the court. Instead, the appellant went ahead to commit further acts of trespass on respondent’s land before the respondent was himself non-suited by the court in 1973, as found by the court in its judgment wherein the respondent was non-suited, to wit:

“The present action was commenced about four years after the 1964 case was disposed of Between 1964 when the first action was instituted, the defendant had extended his building from the area verged ‘green’ in Exhibit H. to the area verged ‘yellow.’ ”

It is for this reason that I agree with the respondent’s submission that in putting up more buildings on the land by way of expansion, the appellant could not be acting bonafide that he was the owner thereof. And since laches and acquiescence are equitable reliefs to defeat the rightful owner of his legal rights or claims for trespass and injunction, the bonafides of the possession becomes material. I venture to opine therefore that the appellant’s defences of acquiescence and laches could not stand and the court below, rightly in my view, rejected them based upon the prop of the trial court’s finding to the effect that-

“Since the purpose of cross-examination is to test the credibility of a witness, I think the admission of the defendant that the plaintiff had earlier sued him is admissible to negative his plea of acquiescence.” See Kaiyaoja v. Egunla (1974) 12 SC.55 at 65.

Afortiori, I hold that the learned trial Judge having so found could not be seen with respect, to blow hot and cold as to whether the defences of laches and acquiescence were made out. See Ezomo v. Attorney-General of Bendel State (1986) 4 NWLR (Pt.36) 448 at 462 (per Aniagolu, JSC) wherein the learned Justice said that “the respondent cannot blow hot and cold.”

Furthermore, since all the conditions precedent for a plea of acquiescence or laches to succeed raised by the appellant were not present due to the particular circumstances of the respondent’s case, the court below was right in upholding the respondent’s appeal before it. In effect since the equitable defences of acquiescence and laches raised by the appellant were not made out to estop the respondent from exercising his legal rights on the land, I endorse the four ingredients the learned trial Judge spelt out that must be present for this plea to be sustained, to wit:

“1. The person seeking to set up the plea must have made a mistake as to his legal rights.

2. He must have expended some money or must have done some act on the faith of his mistaken belief
3. The person whose right has been infringed must know of the existence of his own right which is inconsistent with the right mistakenly claimed by the person seeking to set up the plea of acquiescence.
4. The person whose right has been infringed must have encouraged the person seeking to set up the plea of acquiescence in the latter’s expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his legal rights.”

Mistake on the part of the appellant, in my opinion, becomes material. The respondent having registered the deed of conveyance dated 15th December, 1952 and registered as No.26 at page 26 in Volume 58 of the Lands Registry in the Office at Ibadan the appellant had been put on an inquiry to verify from the Lands Registry. Having failed to use the opportunity offered by the registration of the deed of conveyance (Exhibit ‘D’) executed in favour of the respondent in 1952, he cannot be heard to say he acted without notice on the principle of caveat emptor. Although the law recognises that the length and nature of possession may be such as to oust the title of the true owner of land by the doctrine of acquiescence (see Da Costa v. Ikomi (1968) 1 All NLR 394 and Sanyaolu v. Coker (1983) 1 SCNLR 168 at 182) the appellant’s plea of acquiescence and laches in the instant case were rightly rejected by the learned Justices of the court below but rightly granted the respondent’s claims for trespass and injunction. In the case of Ramsden v. Dyson (1866) 1 HL 140, cited with approval in Gbadamosi & Ors. v. Alhaji Salami Bello Mogaji & Ors., Supreme Court decision No. SC 66/1983 delivered on 15th February, 1985 (1985) 1 NWLR (pt.2) 211 per Oputa, JSC) wherein the law was restated as follows:

“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.”

In my view, appellant knew or ought to have known that the land in dispute belonged to the respondent and that the respondent and his brother acquired it in 1952, five years before the appellant purported to have purchased the land from the accredited representatives of the respondent’s Vendor. I am therefore of the opinion that the registration of the deed of conveyance (Exhibit ‘D’) in favour of the respondent constitutes a notice to the appellant and he ought to have known that the respondent is the owner of the land. Consequently, I take the firm view that the plea of acquiescence and laches does not and could not avail the appellant. See Nwakobi v. Nzekwu (1961) 2 SCNLR 138; (1961) 1 All NLR 445 at 450 and ldehen v. Olaye (1991) 5 NWLR (Pt. 191) 344 at 354.

These issues are accordingly resolved against the appellant.

The end result is that this appeal fails and it is dismissed by me with N10,000.00 costs to the respondent.

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SC.145/1997