Rafiu Ayoola Wawamosi & Anor. V. Chief M. A. Adeoti & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

AWALA, J.C.A,

The Appellants as Plaintiffs filed this action at the Oyo State High Court, Holden at Ibadan wherein they claimed as per their Amended Statement of Claim dated 23/2/90 in paragraph 23 thereof as follows:-

(i) A declaration that Ekarun Wawamosi Family is entitled to a Customary Right of Occupancy to all that piece or parcel of land, lying and being at Odo-Ona Elewe Road, Oluyole Local Government Area, Ibadan Division.

(ii) One Hundred Naira (N100.00k) being damages for trespass committed by the Defendants, when, they unlawfully entered upon the Plaintiffs’ farmland, situate, lying and being ,at Odo-Ona Elewe Road, Oluyole Local Government Area, Ibadan Division and which still continues despite repeated warnings.

(iii) An Order of perpetual injunction restraining the Defendants, their agents or servants or privies or anybody claiming through them from further trespass on the said farmland, which is shown on a Plan NO.KARA/OY/MSC/09/87 DATED 17/8/87.

On the other hand the Respondents who were the Defendants thereat filed an Amended Statements of Defence dated 28/1/91 in which they pleaded at paragraph II thereof as follows:-

“11. Alternatively, the Defendants will contend at the trial that the Plaintiffs are guilty of laches, acquiescence and standing by”

At the trial that eventually ensued, the Appellants (as Plaintiffs) called four witnesses, while the Respondents (as Defendants) called two including the 1st Defendant himself in proof of their respective cases.

In the judgment delivered on 2/2/95, the Learned Trial Judge, Adeniran J. held as follows at page 115J of the record. The judgment is of moment so it is reproduced copiously in part.

“In this case the Defendants have raised the defence of laches and acquiescence in paragraph 11 of their Statement of Defence of laches (sic) and set out facts on which they relied for that defence in paragraph 9. I am of the view that it is incumbent on the Plaintiffs who have filed a Reply to the said Statement of Defence to set out facts which makes the defence of laches and acquiescence not applicable or maintainable in this case.

In the circumstances I accept the Defendants’ evidence that they have on the land in dispute houses in addition to using the same for farming purposes. But before the doctrine of laches can avail a party, the court must necessarily consider the length of the delay and the act done by the other party to make the complaining party believe he had waived his right. See Popoola vs. Adeyemo (1992) 8 NWLR (Pt. 257) 1. In Adeniran vs. Alao (1992) 2 NWLR (Pt.223) 350. Here Adeniran’s case (supra) the Court of Appeal upheld the equitable defence of estoppel of laches, standing by and acquiescence on the basis of the evidence which was accepted as established that the Respondent in that case was on the land in dispute from 1975 to 1984. In the instant case to the knowledge of the Plaintiffs the Defendants bought the land in dispute between 1971 and 1972 from those who had no power or authority to sell the same. As I have found the Defendants immediately went into possession and built farm houses thereon. I am of the view that those farm house (sic) are of permanent structures which should have attracted the attention of the family to the invasion of their rights. This action was not commenced until 1987. But the Plaintiffs have said they have been warning the Defendants repeatedly. They said each time protest was made the Defendants would cause members of the family to be arrested by the Police and locked up in Police Cells. They averred in paragraph 16 of the Amended Statement of Claim that the Plaintiffs will rely on the extracts from the crime ( sic) the Nigeria Police but (not) no (sic) such extracts were produced before the court.

PW3 stated in her evidence that Yesufu Salako who was at the material time the head of the family did not take any action until his death in 1980. It is also the Plaintiffs’ case that in January 1987 they caused a letter to be written to the Defendants. A copy of the said letter was not produced and no explanation was given as to why the copy was not produced. I am not satisfied with the evidence of the Plaintiffs that between 1971 and 1987 they warned the Defendants about their acts of trespass on their land. Clearly the possession by the Defendants of the Wawamosi Family (sic) land was adverse. This adverse possession existed since 1971 and as I have found nothing was done about it by the family until 1987. In the circumstances I find the defence of laches and acquiescence established and on this ground the Plaintiffs’ claim fails and is accordingly dismissed”.

Dissatisfied, the Appellants appealed to this court with four original grounds of appeal which was later amended with the leave of this court to six grounds from which four issues are distilled. The Respondent on the other hand formulated one. (By the way, the Appellant also filed a Reply Brief in which they raised two (2) issues). The Appellants four (4) issues read as follows:-

ISSUE ONE (1)

“Whether it was correct that the Respondents were not warned having regard to the pleadings and pieces of evidence, given at the trial, especially the evidence of the 1st Respondent which supported the case of the Appellants and whether the Appellants could not bring the action as at the time it was brought”.

ISSUE TWO (2)

“Having regard to the averments in the Amended Statement of Defence and Further and Better Particulars, was it proper fort he Learned Trial Judge to hold that “I am of the view that those houses are permanent structures when no such averments were made in the aforesaid pleadings.

ISSUE THREE (3)

“Whether the Defence of laches and acquiescence applied to a parcel of land used mainly for farming purposes and when the last Amended Statement of Defence contained no particular of the Defence, and when the acts pleaded were acts of trespass ab initio and when prescription is unknown under Native Law and Custom”.

ISSUE FOUR (4)

If the answer to issue three is in the affirmative, whether it will apply to the entire parcel of land, when there is no evidence, oral or documentary, showing that the entire parcel of land in dispute was built upon”.

On the other hand. The sole issue raised by the Respondents reads:-

“The crucial issue for determination is whether in the particular circumstances of this case, the trial lower court was right in upholding the plea of laches and acquiescence raised by the Respondents”.

In my view this Respondents’ sole issue is the crux of this appeal. The trial court having declared Exhibits “A”, “A1″ and” A2″ null and void which makes the ownership of the farmland in dispute not an issue. This does not mean however that I will not consider the four issues raised by the Appellant even though prolix. I certainly will.

I start with the argument by the Learned Counsel for the Appellants on his issue one “whether it was correct that the Respondents were warned several times by the family of the Appellants of the consequences of their trespass but each time protest was made, the Respondents would cause members of the family to be arrested by the police and locked them up in cells until sureties were produced for their bails”. PW2, Rafiu Ayoola Wawamosi a principal member of the family he said he was at one time sent with a letter of protest to the Respondents by Yesufu Salako the head of the family to the 1st Respondent. He tore the letter. PW2 testified “Every time we want to enter the land the 1st Respondent would cause us to be arrested and locked up in police cell. PW4, one Alli Sanusi Oloyin at page 75 lines 5 -13 said “I went to Orita Police Station when the Plaintiffs were arrested following a complaint lodged by the Defendants. I went to bail them”.

That DW2, the 1st Respondent himself, admitted at page 84 lines 30 – 35 and said “when the report came to me I went to lodge a report at Challenge Police Station. I with the policemen met the two Plaintiffs in the case breaking the sign board leading to the farm and the police arrested them”.

Learned Appellant Counsel submitted that the Appellants are entitled to make use of DW2’s piece of evidence which supported their case that each time protests were made the Respondents made use of the police to cause their arrest and locking them up in the cell until sureties were produced. He cited;

1. Akinola vs. Oluwo (1962) ALL NLR 244 At 227

2. Uchendu vs. Oghoni (1999)4 SCNJ 64

3. Okechuku vs. Okafor (1961) ALL NLR 685

That the authorities are clear that once a trespasser has been warned of his act of trespass, the legal owner of the property does not need to commence a legal action immediately. He can safely bring it at a later date, as was done in this case.

See Nwakobi & Ors vs. Nzekwu & Anr (1961) 1 ALL NLR (Pt.3) 445 Page 451;

Mora vs. Okwuayanga (1990) 1 NWLR (Pt.125) 225 Page 233.

Counsel therefore submitted that once a trespasser has been duly warned, it is not imperative that a legal owner should go to court immediately. Therefore, the Appellants were in order when the action was filed in 1978.

The Appellant also argued that failure of the 2nd Respondent to testify and the attendant consequence is that the evidence of the Appellants and their witnesses are uncontroverted and binding on her that they protested. He cited Akani vs. Makanjuola (1978) 2 LRN 173 at Page 179. Bua vs. Daudu (2003) 6 SCNJ 219 at 237.

Arguing further the Learned Counsel for the Appellant submitted that even if the Learned Trial Judge was correct in his finding that the Respondents were not warned (which he did not concede) that the failure of the 2nd Respondent to testify and deny the complaints on oath made the defence unavailable to her. See Akani vs. Makanjuola (supra).

On Ground Two (2); Appellants’ Counsel submitted that the Amended Statement of Defence paragraph 9, the Respondents pleaded:

“The Defendants since purchase they lawfully entered into possession of the land in dispute and exercise various acts of ownership thereon and in particular used same for farming purposes to the knowledge of the Plaintiffs without let or hindrance. They have since invested more than one Million Naira on such farming implements including construction of farm houses and other related developments “. (Italics mine).

That in paragraph 9 also of the Further and Better Particulars dated 18/3/88 the Respondent pleaded, “The Defendants after purchase surveyed the land clearing it and uprooted trees thereon, built Poultry sheds. erected electric poles and used the same annually for farming purposes. The land is presently in use for poultry and mechanized farming “(Italics mine).

Appellants’ Counsel on these pleading submitted there were no permanent buildings or structure pleaded. However, the learned trial judge still held the view in page 115K paragraph 1 “I am of the view that those houses are permanent structures which should have attracted the attention of the family to the invasion of their rights”.

Since no issue was joined on the issue of permanent buildings or structure counsel urged us to allow the appeal. He cited Allied Bank Ltd. vs. Alesbuese (1997) 6 SCNJ 116 At Page 130 – 131; National Investment & Property Co. Ltd vs. Thompson Organization Ltd. (1969) NMLR 99 at Page 104;

Akin Folarin vs. Akinola (1994) 4 SCNJ 30 at Page 50 – 51;

Ebueku vs. Amole (1988) 2 NWLR (Pt.75) 128 at Page 154.

ON ISSUE THREE (3)

That having regard to the authority in Oguntola VS. Coker (1985) 2 NWLR (Pt.5) 87 at Page 94 that the plea of laches and acquiescence does not apply to properties or acts temporary in nature like farmland simpliciter the said equitable defence does not apply because farming is of temporary nature. That moreover the Respondents failed to plead the facts relating to the defence of laches and acquiescence, they failed to give the particulars of this defence upon which issue could have been joined.

He cited Adeniran vs. Alao (2201) 12 SCNJ 337 Page 355 – 356

Okereke vs. Agbaruown (2003) 4 SC (pt.1) 33

In Nwakobi vs. Nzekwu (1961) 1 All NLR 445 it was held-

“The equitable defence of laches is not available to trespassers who knowingly and unlawfully take possession of land, nor is such defence available to their successors in interest who persist in the continuance of the original trespass” (Italics mine).

Moreover Learned Counsel for the Appellant submitted that prescription is unknown under the Native Law and Custom.

He cited Mora vs. Nwalusi (1962) All NLR 681

Adu vs. Kuma (I 937) 3 WACA 240 Page 241

Chief Ibibo Dokubo & Or vs. Chief J. Omoni (1999) 6 SCNJ 168.

Here it is held “long and adverse possession can never ripen to an absolute ownership”; See also Onyia vs. Onyia (1989) 1 NWLR (pt.99) 514 At Page 529 where it is held “Trespass however long cannot be converted to title”.

Counsel therefore urged us to hold that the Appellants having warned the Respondents and since their grant is declared to be void ab initio and there is no cross-appeal, they can not acquire possession by their acts of trespass. He cited Ezekwesili vs. Agbaruown (supra).

ISSUE FOUR (4)

Finally, on Issue 4 Counsel submitted that in Gbadamosi vs. Bello (1985) 1 NWLR (Pt 2) 212 Page 216 it is held by the Supreme Court that “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 Defendant or members of their family.

Counsel submitted that this case in hand the total hectare of the parcel of land in dispute is 8.958 hectares that is 22.114 Acres.

DW2 (the 1st Respondent) said on page 85 line 19 – 22

“I find it unnecessary to prepare a counter plan because there is no need for detailed plan”.

It was never averred or evidence given that the whole land was built upon. Counsel therefore submitted that in the absence of evidence on oath that the whole land in dispute was built upon, the defence of laches and acquiescence is unavailable in favour of the Respondents. Counsel therefore urge us to allow the appeal.

In contrast the Respondents’ learned Counsel argued his lone issue as follow:- (for recaputilation) 1reproduce once again the sole issue to wit:

“The crucial issue for determination is whether in the particular circumstances of this case, the trial court was right in upholding the plea of laches and acquiescence raised by the Respondents” (Italics mine)

He submitted that the pleadings and evidence of the Respondents’ defence of laches and acquiescence at the trial court as reflected in the record revealed thus;

The evidence of DW2 (1st Respondent) at page 84 lines 15 – 26 of the records which supports paragraph 9 and of the further amended statement of defence dated 29/11/91 filed same date on page 61 – 62 of the record “I do not know Yesufu Salako”. I did not receive any letter from him through the 1st Plaintiff. I did not at any time instigate the police to lock up the 1st Plaintiff. My wife (2nd Defendant) and I are presently in possession of the land in dispute. Since 1bought the land I have invested about Five Million Naira. 1have buildings on the land and a poultry farm since 1971 I have not been disturbed on the land until March 1987 when the 1st Plaintiff and one Lajire Ojekunle went on the lands to disturb my workers. When the report came to me I went to lodge a report at challenge police station. I was given two policemen to follow me to the land and I with the policemen met the two Plaintiffs in this case breaking my signboard leading to the farm and the police arrested them. I am not a trespasser. I am not liable to the Plaintiffs claim. DW2 was duly cross-examined. He was unshaken. He said he bought the three pieces of land represented by the Exhibits “A”, “A1” and “A2” from DW1, Ganiyu Ogundele Ekarun, a principal member of the Ekarun Wawamosi family who testified for him as DW1.

Cross-examination of PW3 one Odunola Abeo Aro the 2nd Plaintiff in this case is in page 72 line 19 of the record. He said “I agree waiting till 1987 before instituting this action. I was watching events”, at the same page 72 line 29 PW3 said further “I am a principal member of the family because my mother was the eldest. No meeting of the family was convened. Everybody has scattered”.

Cross – examination of PW2 one Rafiu Ayoola Wawamosi, the 1st Plaintiff. (see page 69 line 15 -20 at page 70 4 – 7 of the record). He said “Yesufu Salako was not permanently resident in Ibadan. He came to Ibadan in 1980 fell sick and died that year”.

It is on the above evidence by the plaintiffs at the trial and after dispassionate consideration of the evidence of the parties and their respective witnesses as reflected above that the learned trial judge rightly delivered his judgment as recorded at page 115J line 5 – 51 partly reproduced (supra). “In the circumstances I find the defence of laches and acquiescence established and on this ground the Plaintiffs claim fails and is accordingly dismissed” (the Italics mine).

Arguing further Counsel submitted that the position of the law as to laches and acquiescence was settled by the Supreme Court in Kayode vs. Odutola (2001) 11 NWLR (Pt.725) 659 At 684 D where Iguh JSC had this to say;

“Accordingly, where a stranger begins to build on another’s land supposing it to be his own and the owner, perceiving his mistake, abstains from setting him right and leaves him to persevere in his error, a court of equity will not allow such real owner afterwards to assert his title to the land on which the stranger had expended money on the supposition that the land was his own” (the underling by Counsel in page 3 of his Brief).

He cited also;

Ige vs. Fagbohun (2001) 10 NWLR (Pt.721) 468

Igbum vs. Nyarinya (2001) 5 NWLR (Pt.707) 578

In Bosah vs. Oji (2002) 6 NWLR (Pt.762) 137 his Lordship Iguh JSC also said;

In this regard, the principle is well established that where a person has expended money on the land of another in the expectation, induced also or encouraged, by the owner of the land that he would be allowed to remain in occupation thereof, an equity is created such that the court would protect his occupation of the land and the court has power to determine in what way the equity so arising could be satisfied.

Contending further counsel submitted there is so far on record that the Appellants slept on their right over the piece of land in dispute from 1971 when the Respondents purchased same till 1987 when this action was filed before the trial court, and that the Respondent expended money thereon, and the trial court properly appraised and evaluated the evidence of the parties as reflected in the records. He urged us not to disturb the trial court’s findings.

Submitting further counsel referred to paragraph 5.07, 5.08, 5.09 and 7.08 of the Appellants’ Brief and the authorities learned counsel for the Appellant cited in support that the 151 Respondent caused the Appellants to be arrested and locked up and only were bailed out later. The judgment referred to in page 115K line 6 – 14 of the records and observed “But the Plaintiffs have said they have been warning the Defendants repeatedly. They said each time protest was made the Defendants would cause members of the family to be arrested by the police and locked up in police cells. They averred in paragraph 16 of the Amended Statement of Claim that the Plaintiffs will rely on the extracts from the crime (sic) the Nigerian Police but not (sic) such extracts were produced before the court “. (Italic mine).

We are therefore urged to discountenance that contention of the appellants counsel cited Owomero vs. Flour Mills (Nig.) Ltd. (1995) 9 NWLR (Pt.422) 622.

Contending further Counsel submitted that the 1st Respondent (DW2) gave evidence qt page 84 lines 15 – 16 of the records that he and the 2nd Respondent are in possession of the land in dispute but by paragraphs 5.15, 5.16, 5.17 and 5.18 of Appellants Brief, they contended that the 2nd Respondent did not testify and never denied that they were warned.

That the position of the law is that they are not bound to call a particular witness if they think they can prove their case otherwise. This is so far as the 1st Respondent (who is the husband of the 2nd Respondent) gave evidence, he is not bound to call her to give evidence based on the presumption of the common law that husband and wife are one, each being part of the other.

He cited;

Bello vs. Kassim (1969) 1 NMLR 148 at 152;

Osawaru vs. Ezeiruka (1978) 6/7 SC 135;

Obiaka vs. State (2002) 10 NWLR (pt.776) 612;

Waldo vs. Maizare (2001) Pt.704) 557

Submitting further Counsel said the contention of t he Appellants in paragraphs 6.05, 6.06, 8.01, 8.02, 8.03, 8.04 and 8.05 of the Appellants’ Brief that the Respondents did not plead the existence of any permanent buildings or structures built upon the land in dispute is misconceived and ought to be rejected by us. The Trial Court accepted 1st Respondent’s evidence at page 84 line 16- 20 of the record t hat they have not been disturbed since 1971 when they built on the land in dispute as the judge held at page 115K lines 2 – 5 of he records that;

“I am of the view that those house (sic) houses are permanent Structures which should have attracted the attention of the family to the invasion of their rights. The action was not commenced until 1987”.

Therefore Counsel contended that so far as the identity of the land in dispute was not as issue, the trial judge was right when he held that the buildings referred by the 1st Respondents in his evidence on record are 14 permanent as the Respondents need not specifically plead that a building is of a permanent nature or not.

Submitting further, counsel contended that the contention of the Appellants in paragraphs 7.01, 7.02 and 7.03 of their Brief that farming is of a temporary nature and not of a permanent nature and that the building of the 1st Respondent on the land in dispute is not of a permanent nature for this he cited Oguntola vs. Coker (supra) and that it is misconceived for the following reasons;

(i) Evidence led in Oguntola’s case was to the erection of advertisement boards and the planting of oranges and bananas on the land in dispute;

(ii) There is evidence on record that the Respondents herein in this case have buildings which are of a permanent nature on the land in dispute.

Finally, Counsel referred to paragraphs 7.04, 7.05, 7.06, 7.07 and 7.10 of the Appellants’ Brief that they are not applicable to the circumstances of this case, so far as the Respondents have not been adjudged trespassers on the land in dispute. The position of the law is that possession arises from a long continual and uninterrupted possession of property. Prescription is, however, different from custom. He submitted that so far as the Appellant pleaded and led evidence of ownership under native law and custom, the authorities referred to in paragraphs 7.09 of the Appellant Brief ought to be rejected.

Now, before I consider the law and the resolution of this appeal, must stop at this juncture to consider and comment on the filed “Appellants’ Reply Brief”. (Italic mine). That “Reply Brief’ filed is impregnated with two (2) issues for determination namely?

(1) Whether a Respondent who filed no cross Appeal or a Respondent’s Notice is entitled to raise new issues for determination;

(2) Whether there is a presumption of marriage between the two Respondents.

It is my view that these two issues do not arise from the Respondents’ Brief of Argument and this is a misuse of an Appellants’ Reply Brief. See Order 6 Rule 5 of the Rules of this Court 2002 and in Essien & Ors vs. C.O.P (1996) 5 NWLR (Pt. 499) 489 where Counsel for the Appellant formulated two fresh issues in the so called Appellants’ Reply Brief as in this case; the Court of Appeal (Enugu Division) Per Tobi, JCA (as he then was) said in the lead judgment:

“The so called Appellants’ Reply Brief contains two issues for determination distinct and different from the only large issue contained in the Respondents’ Brief A Reply Brief as the name implies must be a reply to the Respondent ‘.I’ Brief It must deal with all points arising from the Respondent’s Brief. This is the language of Order 6 Rule 5 of the Court of Appeal Rules 1981 as amended (now 2002). A reply brief is not a forum for introducing or advancing afresh point or points of Argument. That will be tantamount to reopening the appeal from the side of the Appellant. A Reply Brief must not be independent of the main brief If a reply brief contains issue or issues for determination then, it has acquire an independent character. It is not a reply brief but something else. (Italics mine).

The two issues in the Reply Brief are therefore hereby accordingly discountenanced by me.

Now my resolution of this appeal; based proven evidence in the records

(1) At page 63 B of the records paragraph 11 of the amended statement of defence dated 28/1/91 the plea of laches and acquiescence and standing by was pleaded;

(2) PW2 the 1st Plaintiff in cross-examination said he knew the land was sold to the Respondents in 1971. we have all along been protesting but each time we found ourselves in police cell before we decided to take action in 1987 (see page 70 line 5 – 7 of the record);

(3)There is evidence that the first police report and action was in March 1987 (see evidence of DW2, the 1st Respondent, at page 84 line 25 – 30 of the record);

(4) Evidence of PW3, at page 72 line 17, under cross-examination is thus; “I agree waiting till 1987 before instituting this action, I was watching events”.

(5)The permanency of the buildings were not put in issue by way of a Reply to the last Amended Statement of Defence dated 28/1/91, so the trial judge’s finding of the permanent buildings or structures cannot be impeached;

(6)There is evidence by DW2 (1st Respondent) on oath said “He drew NEPA electric wire and lit the entire land. They have farm workers on the land. They do mechanized farming and poultry on the land in dispute. It is my view that the entire land was and is in use and in possession of the Respondents.

Considering (1) to (6) above therefore I resolve the sole issue raised by the Respondents’ learned Counsel which is similar to the four formulated by Appellant Learned Counsel against the Appellants. Now I look into the position of the Law vis a vis this Appeal as follows:

In the English case of Lindsav Petroleum Company vs. Hurd (1874) LR 5 PC 221 at 239 the doctrine of laches was beautifully summarized by Sir Barns Peacock in the following words:-

“Now the doctrine of laches in court of equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might be done fairly regarded as equivalent to a waiver of it or whereby his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material. But in every case, if an argument against relief which otherwise would be just, is founded upon mere delay, the delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tied upon principles substantially equitable. Two circumstances always important 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 relates to the remedy”. (Italics mine).

In the case of Fagbemi vs. AIuko (1968) 1 All NCR Page 233 At 237 delivering the lead judgment Ademola CJN and referring to the Lindsay Petroleum case (supra) had this to say:

“It is clear from these authorities that in considering the equitable doctrine of laches, the court does not act only on the delay by the Plaintiffs but must also consider;

(1) Acquiescence on the Plaintiffs part and

(2) Any change of position that has occurred on the part of the Defendant.

If the Plaintiff by his conduct had done what may be regarded as equivalent to a waiver or by his conduct had done what may be regarded as equivalent to a waiver or by his conduct and neglect puts the other party in a position in which it would be unreasonable to place him if the remedy were afterwards to be asserted, then the doctrine of laches would apply”. (Italics mine)

In the same vain the term “acquiescence” is defined by the learned authors of Halsbury’s Laws of England, 4th Edition paragraph 473 at page 994 as follows:-

“The term acquiescence” is however properly used where a person having right and seeing another person about to omit or in the course of committing an act of infringing upon that right, stands by in such a manner as really to induce the person committing the act and who might otherwise have abstained from it, to believe that he assents to its being committed, a person standing – by cannot afterwards be heard to complain of the acts “. (Italics mine).

Again, the Supreme Court while applying the above principles in the case of Kayode vs. Odutola (2001) 11 NWLR (Pt.725) 659 At 679 in which fact is similar to the present appeal on hand held as follows:-

”There is no duty on a person having an estate or interest in land or other property for that matter to raise a protest against trespass or encroachment on the property or invasion of his right in the same if he has reasons to believe that such a trespasser or encroacher or invader mistakenly conceives himself to be acting lawfully because in such a situation there can not be said to be any misrepresentation or delusion or inaction from the owner’s part, encouraging or fostering the trespasser in expending money by developing the property”. (Italics mine). In this case on hand, the evidence and facts were ably evaluated by the trial judge and are overwhelming. The Respondents were not mistaken in their belief that the land in dispute belonged to them. (See Exhibit “A”, “A” and “A2′). So they took possession and expended money to build farm houses and bought farm instruments worth over One Million Naira even though DW2 (1st Respondent) testified that he expended N5million hereby discountenanced by me because he did not plead N5 million but N1million. The Appellant stood by without raising a finger for 16 year (1971 – 1987).

I refer to Gbadamosi vs. Bello (1985) 1 N WLR (Pt.2)2 51 per Uwais .JSC delivering the lead judgment explained the effects of the success of the defence of estoppel of laches and acquiescence thus:

(1) The true effect and meaning of the success of the plea of laches and acquiescence is that the Plaintiffs would loose the land that belonged to them.

(2) Acquiescence in Law has the effect of extinguishing the Plaintiffs title, and in the case of ejectment, neutralizing the Plaintiffs Claim.

(3) We believe 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.

In this case (Gbadamosi vs. Bello) the learned trial judge found that there are five buildings built by the Defendant on the land in dispute, and the ages of the buildings range from 12 to 18 years, accordingly held by Uwais, JSC, (as he then was) “1 think the Plaintiffs’ Claim for damages for trespass is stale, The Plaintiffs have acquiesced for far too long in the Defendants’ act of trespass. I therefore dismiss the claim for trespass “. (Italics mine).

From the foregoing it is my view therefore that the judgment appealed against founded on facts and believed by the Learned Trial Judge is not perverse. It is sound. By a long line of authorities in the Supreme Court an Appellate Court is enjoined not to interfere or disturb findings of facts except where it is found to be perverse or erroneous.

See Mbele vs. State (1976) 5 SC 37

Omoeha vs. State (1988) 1 NWLR (Pt.53) 460

Wanke vs State (1993) 5 NWLR (pt.295) 542 at 543

For the avoidance of doubt the effect of the successful plea by the Respondent of the equitable doctrine of estoppel of laches, acquiescence and standing-by is that the Appellants title to the land in dispute is extinguished, annihilated and defeated forever.

See Kayode vs. Odutola (supra)

Gbadamosi vs. Belllo (supra)

In the final analysis this appeal is adjudged unmeritorious. It is dismissed with N5,000.00k cost against the Appellant and in favour of the Respondents.

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Other Citations: (2006)LCN/2136(CA)