Emmanuel Fagbemi V Isiah Aluko (1968)

LawGlobal-Hub Lead Judgment Report

ADEMOLA,  C.J.N.

This is an appeal from the judgment of the High Court of Western Nigeria holden at Oshogbo, which allowed the appeal of the defendant against the judgment of the President of the Ilesha Grade A Customary Court. The plaintiff’s claim before that court was for a declaration of title to a piece of land at B64 Okesha Street, Ilesha.

The President, in a considered judgment, entered judgment for the plaintiff in terms of the writ and costs.

The plaintiff’s evidence, which was accepted by the President, is briefly as follows – the land in dispute originally belonged to one Yesiri, plaintiff’s ancestor; his (plaintiff) father, Omirin, built at the back of it. Plaintiff succeeded to the land. He later went to a place called Kishl and on his return found a newly built shop on the land In front of his ancestors’ house. On finding out that the defendant built the shop he sent one Fatuloye (who was said to have given the land to the defend-ant), to him to remove the shop; he also reported him to the Owa of Ilesha, Oba Romolaran, who spoke to the defendant and later asked one of his chiefs, Chief Obala Motoye to settle the matter.

Chief Obala and others tried to persuade the plaintiff to allow the defendant to stay on the land as he had built the shop on it but the plaintiff refused. Soon he went abroad again. On his return the shop was still on the land. Plaintiff went to the defendant at Ilesha, where he then resided, and remonstrated with him; but k was of no avail. He saw him several times and again he went abroad. It would appear that the plaintiff did not return home (Ilesha) to settle for over 20 years. When he finally returned he built a storey house at the back of the shop, only three feet away from it, and Insisted on the defendant pulling the shop down. As the defendant did nothing about it, plaintiff brought this action.

The defendant’s evidence was that his mother owned the land and that he built the shop forty years ago. He claimed some relationship to the plaintiff and to Fatuyole who allowed him to build on the land, stating that this was his own mothers’ portion of the family land. As we stated earlier, the President of the Customary Court had no hesitation in accepting the traditional evidence of the plaintiff in relation to the land. He then considered the equitable defences raised on behalf of the defendant. In considering the defence of acquiescence, he said:-

“Acquiescence does not bar unless certain conditions are fulfilled. One of the conditions is that the party who relied upon his opponents acquiescence must have been led to by it to expend money or otherwise alter his position.”

and considering the evidence of laches, he said:-

“Laches is not delay alone, some other factor must exist. Laches may be evidence of a waiver of a party’s right but waiver is incomplete without consideration in some shape or form proceeding from the other party.”

Finally, he said that these two defences do not apply to the case having regard to the evidence before him and that having inspected the shop he did not believe that the defendant had built the shop for forty years as he stated.

The learned judge of appeal in the High Court, it would appear, agreed with the findings of the President of the Ilesha Grade 1 Customary Court in regard to the traditional history of the land and that it belonged to the plaintiff’s ancestors, but disagreed with his statement of the law on the equitable remedy of laches.

The learned judge put the point thus:-

“Again he (President) said laches is not delay alone, some other factor must exist. According to him one of such factors is waiver. I beg to say that the statement is wrong in law. Laches means nothing more than undue delay. A plaintiff in equity is bound to prosecute his claim without undue delay. This is in pursuance of the principle that equity aids the vigilant.”

Finally, the learned judge of appeal summed up by stating that the lapse of time of a period of 24 or 44 years (whichever it is) in asserting his rights in a court of law is unreasonable and the court would Infer that the plaintiff had acquiesced in the defendant’s act of trespass, also that the plaintiff is thereby deemed to have waived his legal rights.