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Emmanuel Fagbemi V Isiah Aluko (1968) LLJR-SC

Emmanuel Fagbemi V Isiah Aluko (1968)

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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.”

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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.

The question we are therefore called upon to decide is whether the President’s statement of the law or the views of the learned judge of appeal on the question of laches is acceptable. We have considered various authorities and judgments on this point and it will be enough if we refer to a few decided cases.

In the case Finn v. Ayeni (1964) N.M.L.R. 130 where the plaintiff claimed a declaration of title to land which the defendant had built on without any warning from plaintiff for the space of two years it took to build, on the explanation that it had been impossible for the plaintiff to know who was building the house although he had made every effort possible to find out from the workmen on the land, it was held by Duffus J., that in the circumstances of the case the plaintiff was entitled to the land, the main considration being whether the plaintiff had been guilty of such laches and/or acquiescence as would prevent the plaintiff from enforcing his legal right. It was held that acquiescence which will deprive a man of his legal rights must amount to fraud; a man is not to be deprived of his legal rights unless he has acted In such a way as would make it fraudulent for him to set up his rights. In re-gard to laches it was held that the plaintiff had delayed but in the circumstances of the case the court could not find that the delay would be such as would deprive him of his rights.

The law on the doctrine of laches was stated by Sir Barnes Peacock in Lind-say Petroleum Co. v. Hurd (1874) L. R. 5 P.C. 221 at p. 239 as follows:-

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“Now the doctrine of laches in courts of equity is not an arbitrary or a 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 fairly regarded as equivalent to a waiver of it, or where by 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, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried 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.”

In Erlanger v. New Sombrero Phosphate Co. (1878) L. R. 3 App. Cap. 1218, Lord Blackburn made a similar observation. These cases have been followed in Agbeyegbe v. lkomi 12 W.A.C.A. 383 and in the more recent case of Taylor and others v. Kingsway Stores and anor (1965) N.M.L.R. 103. In Taiwo v. Taiwo (1958) 3 F.S.C. 80, this court said at p.82 of the report:-

“Acquiescence does not bar a claim unless certain conditions are fulfilled. One of the most important is that the party who relies upon his opponent’s acquiescence must have been led by it to expend money or otherwise alter his position. There Is nothing to show here that the plaintiffs or their predecessor in title, Rebecca, have been led to do anything of the sort by the defendants’ failure to assert their claim. However, the plaintiffs here do not rely upon bare acquiescence, but upon acquiescence, over a long period; I should prefer to say that they rely on the defendants’ laches. Laches is not delay alone; some other factor must exist, or at least the delay must be such that the existence of some other factor may be inferred. Laches may be evidence of the waiver of a party’s right, but waiver is incomplete without consideration in some shape or form proceeding from the other party. There is no evidence of that here; neither the plaintiffs’ nor their predecessor in title here acted in any way upon the defend-ant’s failure to assert a claim to Rosannah’s share of the rents which they were taking.”

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 plaintiff’s part, and (2) any change of position that has occurred on the defendant’s part. If the plaintiff by his conduct had done what may be regarded as equivalent to a waiver or by his conduct and neglect put the other party in a position in which it would be unreasonable to place him if the remedy were afterwards to be asserted the doctrine of laches would apply.

The facts in the instant case show that the plaintiff/appellant became aware of the building on his land some months after its completion as he was away from Ilesha. Immediately he became aware of it he warned the respondent. He subsequently reported him to the Owa, the Oba (head Chief) of Ilesha who intervened in the matter. He insisted that the building be removed. At that stage he had to go abroad again. On his return he pursued the respondent to his village and made several trips to Ilesha where the defendant lived but with no results. Still protesting he had to go away for a number of years. On his return he made an effort to get the respondent to pull down the shop by building right at the back if it leaving only three feet to the shop built by the respondent.

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After making an unsuccessful last appeal to him to demolish his building he put the respondent to court. To our mind it cannot be said that the appellant acquiesced in the respondent’s act or that he allowed him to take a position from which will be unreasonable to dislodge him. There was not a time he gave up or surrendered his rights on the land to the respondent.

We disagree with the learned judge of appeal that the appellant at anytime slept on his right or that the delay to sue the defendant, was not without good reasons. We are of the view that, in the circumstances, it will not be reasonable to say that laches will apply.

For these reasons we allow this appeal and we hereby set aside the judgment of the learned judge of appeal and restore the judgment of the President of Ilesha Grade A Customary Court declaring the plaintiff/appellant as the owner of the land in dispute.

The order as to costs of 25 guineas made by the learned judge of the High Court against the plaintiff is hereby set aside and costs of 15 guineas are hereby awarded in his favour. The plaintiff/appellant is also entitled to costs in this court which are assessed at 32 guineas.

Other Citation: (1968) LCN/1588(SC)

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