Lasupo Akanni & Ors V. Adedeji Makanju & Ors (1978)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

This appeal is against the decision of the Court of Appeal of the former Western State contained in the judgment delivered on the 17th day of July, 1975 in an appeal No. CAW/147/1974 brought to it by the appellants against the judgment of the High Court, Ibadan (Coker, J.,) (as he then was) delivered on the 28th day of May, 1973) in suit No.1/118/1970.

The claim endorsed on the writ of summons by which the proceedings in the High Court, Ibadan were commenced is for:

“i. Declaration of title to all that piece or parcel of land situate at and being at Odo-Okun, Ibadan and or in the alternative declaration that the 1st defendant is entitled to sell the land or any part thereof.

ii. Possession of the said land.”

Pleadings were ordered and duly delivered. The issues joined came up for trial before Coker, J., and at the conclusion of the evidence and addresses, he delivered a considered judgment in favour of the plaintiffs/respondents, the concluding portion of which read as follows:

“I find as a fact that Salami Adegbite is the present head and not Lasisi Fagbenro the 4th defendant. It is clear and I find that the 1st defendant was never appointed an agent of the entire family, and that he had no authority to alienate the family land to any of the other defendants, such sale is therefore void – See Ekpendu & Ors. v. Erika (1959) IV FSC 79. I am of the view that it was only in recent years, that the adverse claim by Oke Agugu’s section became manifested, and the family as a whole never acquiesced in such claim.

On the whole, I find on the preponderance of evidence that the land in dispute was originally granted to Makanju, alias Oganla, by Bale Orowusi.

In the circumstances, the descendants of Oke Agugu and his brothers and sisters are not the exclusive owners of the land and have no right to alienate same without the concurrence of the other sections. The sales by the 1st defendant or 4th defendant to the other defendants are in my view not valid and are void.

I therefore declare that the plaintiffs as well as the descendants of Oke Agugu, Adegbite, Adeniyi, Fasina, Fakorede, Onifade and Ogunbambi, are the owners of the land in dispute (verged yellow including the area verged “RED”) on the plan LL. 5836…..Exhibit ‘A’ in these proceedings according to Yoruba native law and custom. I hold that they constitute the various sections compendiously and popularly known as Makanju or Oganla family.

As against the 2nd, 3rd, 5th, 6th, 7th and 8th defendants, I order they give up possession of the land respectively held by them. The 1st and 4th defendants being members of Makanju or Oganla family, I would make no order against them.”

The appeal against this decision by the defendants was dismissed by the Western State Court of Appeal in its judgment delivered by Kayode Eso, JCA., (as he then was) for lack of merit. Before the Western State Court of Appeal, the grounds of appeal argued were:

“I. That the learned trial Judge erred in law and on facts when he regarded the non-production of receipts for the purchase of plots by defendants as damaging without considering the length of each defendant’s residence to determine the equities raised in the defence.

IV. That the learned Judge misdirected himself on the facts when he gave recognition to a Mogaji purposely put up for this case and placed emphasis on his evidence in coming to a decision.

Against the dismissal of the appeal, the defendants have now appealed to this court basing their complaint on the following grounds of appeal.

“(1) The learned Judges of the Appeal Court erred in law and on the facts in holding that “the length of occupation is irrelevant for the plaintiffs warned the defendants as soon as they saw them (the defendants) on the land.”

Particulars of Error

(i) What the plaintiffs pleaded was that when they came to know of the sale by the 1st defendant they warned the 2nd to the 11th defendants “of their family title.”

(ii) Paragraphs 15 and 16 of the Statement of Claim are not in accord with the finding of the learned trial Judge in the High Court.

(2) In the absence of any findings as to who was the right Mogaji the learned Judges of the Court of Appeal ought to have held that the sales to the 2nd, 3rd, 5th – 11th defendants were voidable and not void.

(3) The claim for possession should have been struck out or dismissed as being inapplicable or inappropriate as on the findings – the defendants were not in possession.

(4) Judgment is against the weight of evidence.”

Professor Kasunmu represented the appellants as counsel in this appeal. He argued grounds 1 and 4 together and dealt briefly with ground 3. He did not argue ground 2, the ground having been lost in his concession (made quite wisely in our view) that the sale of the land by the 1st defendant (who was found by the learned trial Judge to be an ordinary member of Makanju or Oganla family) without the consent of the head and principal members of the family was a nullity and therefore void.

Canvassing grounds 1 and 4, learned counsel complained of the peremptory manner in which the equitable defences of laches, acquiescence and standing by raised by paragraph 57 of the amended Statement of Defence were treated and dismissed by the learned trial Judge and the acceptance of that decision by the Western State Court of Appeal. He referred to paragraphs 52 and 53 of the Statement of Defence where the defendants pleaded the various periods of occupation by the defendants. He submitted that contrary to the findings of the learned trial Judge, none of the defendants admitted being warned. He then contended that in a case against individual purchasers as this instant appeal, knowledge or warning given to one defendant is not knowledge or warning given to another defendant.

Finally, he submitted that the findings of the learned trial Judge that the defendants/appellants, apart from the 1st defendant, admitted being warned and that they were warned contrary to the evidence. He then referred to the evidence on record showing that the defendants by and large denied being warned.Learned counsel dealt with ground 3 briefly.

He submitted that it is the law that a claim for possession cannot properly be joined to a claim for damages for trespass in the same writ. He referred this court to the case of Aromire v. Awoyemi (1971) (Part 1) 1 All NLR 101 and contended that by the finding of the learned trial Judge that the sale to the appellants was void ab initio, it was obvious that the appellants were in trespass and the claim for possession should have been struck out.

Chief A.M.F. Agbaje who appeared as learned counsel for the respondents in reply submitted that having conceded the point that the sales by the 1st appellant to the other appellants were void, the appellants could not seek to rely on the equitable defences of laches, acquiescence and standing-by. Moreso, as the evidence was clear that it was as soon as the respondents noticed building constructions going on the land in dispute that they asserted their right of ownership and subsequently filed this action.

He finally submitted that the length of occupation pleaded by the appellants and testified to span a period of from 1 to 10 years. Apart from the 6th defendant/appellant and the 7th defendant/appellant, none of the appellants was in physical occupation of the land. They only had constructive possession by virtue of their buildings under construction on the land. He then urged the court to hold that since the occupation was unlawful, an order for possession was a necessary relief to enable the plaintiffs/respondents recover possession of their land being unlawfully occupied.

Before dealing with the grounds argued and the submissions made thereon, it is desirable to state briefly the facts of the case.

The plaintiffs/respondents, the 1st defendant/appellant and the 4th defendant/appellant are members of the Makanju family, otherwise known as Oganla family. The family owned land situate and known as Makanju compound Odo-Okun, Ibadan. The 1st appellant who is an ordinary member of the Makanju family, without the permission or consent of the head of the family and the concurrence of the principal members of the family sold the parcels of land in dispute in the said Makanju compound/Oganla compound to the other appellants and received payment for them without also accounting to the family. The area of land constituting Makanju compound is shown on the Plan No. LL. 5836 (Exhibit A) and thereon edged PINK whilst the various parcels sold by the 1st defendant/appellant to the other defendants/appellants are edged YELLOW thereon. These various parcels of land constitute the subject matter of the dispute.

This is brought out more clearly in paragraphs 16 and 17 of the Statement of Claim which read:

“16. The 2nd to the 11th defendants are among persons to whom the 1st defendant wrongfully sold portions of the plaintiff’s family land and the buildings and or foundations erected by them are shown edged “Yellow” on the plan attached.

17. When this wrongful and unauthorised alienation of plaintiffs’ family land came to the notice of the plaintiffs’ family, they warned the defendants of the plaintiffs’ family title to the land but the defendants persisted in laying claim to the land.”

The 1st appellant admitted selling the parcels of land to the other appellants and all the appellants claimed that the land belonged to the 1st defendant’s family and not respondents’ family. In particular, paragraphs 4, 5, 20, 52, 55, 56 and 57 of the Statement of Defence read:

“4. In reply to paragraph 2 of the Statement of Claim the defendants say that Makanju was never known or called Oganla.

5. In reply to paragraph 3 of the Statement of Claim the defendants say that the area edged PINK in which the pieces or parcels of land edged YELLOW said to be in dispute are included in Oganla compound, Odo-Okun and the whole piece or parcel of land edged PINK forms a portion of land belonging to the first defendant’s family and is not and has never been Makanju family land.
6. The first defendant says that he sold land as the accredited representative of his family to 2nd, 3rd, 5th, 6th, 7th and 8th defendants and that the 4th defendant is his relative who builds on his family land as of right.
7. The 2nd, 3rd, 5th, 6th, 7th and 8th defendants say that they bought the land on which they built their houses from the 1st defendant’s family at various dates from 20 years up till recently after due inquiry.
8. The 2nd to 9th defendants say that they built their respective houses to the knowledge of the plaintiffs who never at any item objected to the building or ever disturbed them on the land.
9. The defendants say that the plaintiffs have no claim whatsoever to the land in dispute.
10. The defendants will at the trial of this action rely on all equitable remedies of laches, acquiescence and standing-by.”

The defendants/appellants showed no acknowledgment or recognition of the respondents’ rights of interests in the land in dispute and their plea of equitable defences was residual depending on the finding of the court. The learned trial Judge after a thorough examination of the evidence, made the findings already set out above in favour of the plaintiffs/respondents and granted the declarations and the reliefs sought. The sales having been declared void under native law and custom, the 2nd, 3rd, 5th, 6th, 7th and 8th defendants assumed the character of trespasser ab initio i.e. from the date of entry into their respective parcels and the learned trial Judge ordered them to give up possession.

The complaint of the appellants put forward by their counsel is directed solely against this order for possession. The respondents did not file any claim for damages for trespass or for injunction and it therefore becomes obvious that the declarations sought and obtained were to establish a basis for the claim for possession since their title was severely put in issue and vigorously contested. Having conceded the title of the plaintiffs by reason of the nullity of the sale of the parcels of land by the 1st defendant/appellant, the onus falls squarely on the shoulders of the appellants to show that they established by evidence the equitable defences of laches, acquiescence and standing-by which they pleaded.

It is settled law that when trespassers knowingly and unlawfully take possession of lands, the defence of laches is not available to them. See Nwakobi v. Nzekwu (1961) 2 All NLR 445.

We will now turn to a strict consideration of the grounds of appeal on the basis of the argument before us.

We observe that ground 1 of the grounds of appeal does not correctly reflect the opinions of the learned justices of the western State Court of Appeal on the point argued before it. The relevant portion of their judgment reads:-

“We have made a careful study of the record and we agree with Chief Agbaje that no where throughout the case did the learned trial Judge regard the non-production of receipts as damaging to the case of the defendants. The complaint of defendants/appellants in this regard is without foundation and without substance.

So also is the complaint of Chief Lapite that the question of length of occupation by the defendants is not considered. Chief Agbaje has submitted on this point that the length of occupation is irrelevant for the plaintiffs warned the defendants as soon as they saw them (the defendants) on the land.

The submission of Chief Agbaje is eminently supported by the evidence. The 1st plaintiff, Adedeji Makanju said:-

“…..I made enquiries as to who were trespassing on our land. I saw 2nd defendant and handed him a letter; At the time the letters were written and delivered to the addresses, there were about 7 building foundations on the land. I drove the workers, but about a week afterwards, they would return to resume work on the buildings. In consequence of their refusal to stop work, I had to commence these proceedings…” The learned trial Judge had the issue of laches in mind for he even went into the admission by defendants. He said in his judgment:

“The other defendants said they were warned when they were erecting their buildings. While I am not quite satisfied that the solicitors’ letters were proved to have been served as alleged in evidence, I find as a fact that first plaintiff actually warned them and that he was brutally attacked by 1st defendant and his aids when he went on the land when some of the foundations were being constructed.”

There is therefore no substance in this ground of appeal and it fails.” (Underlining ours)

Having examined the record of proceedings and judgment, we find ourselves unable to accept the complaint of learned counsel for the appellants that the learned justices of the Court of Appeal conveyed the impression set out in ground 1. Furthermore, the finding of fact on the issue of warning is quite clear and unequivocal. It only relates to the activities of the first plaintiff and we find overwhelming support for it in the evidence of the 1st plaintiff.

In view of the contention of learned counsel for the appellants that the length of occupation of the land by the appellants entitles them to the defence of laches, acquiescence and standing-by, we will now proceed to examine the state of the law in regard to the defences of laches, acquiescence and standing-by.

The 1st defendant/appellant did not testify and so as against him the evidence of the plaintiffs stands unchallenged. The 2nd defendant did not testify either. The 4th defendant/appellant who is also declared a member of the plaintiffs’/respondents’ family and a strong supporter of the 1st defendant testified and his testimony on 11/4/73 revealed glaringly plaintiffs’ objection to the erection of his son’s building on the land and claim to title. The relevant portion reads:

“I have a son, Saka, who is a soldier. I wanted him to build on a portion of the land. It is true that they objected to my son building on the land. I replied that he would build because it was Oganla who owned the land not their fathers. The plaintiffs claimed the right to be consulted but we did not agree. It was not more than 30 days after Saka had started to build that plaintiffs took this action. The other defendants were also preparing to build.”

Testifying earlier on 4/4/73 as to the length of occupation of the other defendants, he said:

“The land were sold to the defendants Nos. 2, 3, 5, 6, 7 and 8 by the 1st defendant and was accounting to Ilori. 2nd defendant bought 13 years ago and built 8 years ago; 3rd defendant bought 9 years ago and built about 5 years ago; 5th defendant bought 12 years ago and built 6 years ago; 6th defendant bought 14 years ago and built 5 years ago; 8th defendant has only a foundation also Saka, my son and one other person now dead.”

The 3rd defendant’s evidence corroborated 4th defendant on the issue. The 5th defendant in his evidence claimed that he bought in 1967 and had not erected a building but laid foundation in 1969 and built a place of worship in 1970. The 6th defendant’s evidence also corroborated the 4th defendant’s evidence partially that he built 10 years ago on the date he testified i.e. 12/4/73.

The 7th defendant testified that he bought 8 years ago and had built only up to lintel level when he was served with writ of summons.

The 8th defendant testified that he bought 9 years ago on 12/4/73 but laid foundation for a building on the land, built boys’ quarters and moulded 10,000 blocks in readiness.

From the facts projected by the evidence from the defence witnesses set out above, the equitable defence of long possession is not available to the appellants. Even if it were the defendants/appellants never sought refuge under it in their pleadings. It is totally absent from the Statement of Defence. What was relied on were the equitable defences of laches, acquiescence and standing by.

The doctrine of laches, acquiescence and standing-by have been restated by this court times without number in the past in cases where they were invoked. It will be enough if we refer to a few decided cases.

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 the position that has occurred on the defendants’ part. If the plaintiff by his conduct had done what may be regarded as a waiver or by his conduct and neglect has 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. More succinctly, the law of the doctrine of laches was stated by Sir Barnes Peacock in Lindsay petroleum Co. v. Hurd (1874) LR 5 PC 221 at 239 and adopted with approval by this court in the case of Fagbenro v. Aluko (1968) 1 All NLR 233 at 236 (Ademola, CJN. delivering the judgment) as follows:-

“Now the doctrine of laches in courts of equity is not an arbitrary 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 waving 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 act 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.”

Lord Blackburn’s statement of the law on the doctrine of laches in the case of Erlanger v. New Sombrero Phosphate Co. (1878) LR 3 App Cas 1218 is similar. The West African Court of Appeal followed these cases in Agbeyegbe v. Ikomi 12 WACA. 385 and recently the Supreme Court followed in a series of cases commencing with the case of Taylor and ors. v. Kingsway Stores and Anor. (1965) NMLR 103.

On the doctrine of acquiescence and laches, this court in Taiwo v. Taiwo (1958) 3 FSC 80 said at page 82 of the report:

“Acquiescence does not bar a claim unless certain conditions are fulfilled. One of the most important conditions 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 factors must exist, or at least the delay must be such that the existence of some other factors 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 defendants’ failure to assert a claim to Rosannah’s share of the rents which they are taking.”

The above statement on acquiescence and laches was also approved and adopted by this court in the case of Fagbenro v. Aluko already cited above.

The general rule as to standing-by was laid down in Caincross v. Lorimar (1860) 3 LT 130. It was adopted with approval by the West African Court of Appeal in Morayo v. Okiade and Ors. 8 WACA 46 at page 47 and read as follows:

“It is a rule of universal law that if a man either by word or conduct has intimated that he consents to an act which has been done and that he will offer no opposition to it although it could not have been lawfully done without his consent and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned to the prejudice of those who have given faith to his word or the fair inference to be drawn from his conduct.

In such cases proof of positive assent or concurrence is unnecessary, it is enough that the party had full notice of what was being done and the position of the other party altered.”

In Ramsden v. Dyson (1866) LR 1 HL 129, another case illustrating the doctrine, it was held that “if a stranger begins to build on land supposing it to be his own and the real owner perceiving his mistake abstains from setting him right and leaves him to persevere in his error, a court of equity will not afterwards allow the real owner to assert his title to the land.” (See also Alhaja Sabalemotu Kaiyaoja & Ors. v. Egunla (1974) 12 SC. 55.

It does seem clear to us that the appellants failed woefully to establish their entitlement to any of the three equitable defences to bar the claim of the respondents. The plethora of evidence accepted by the trial Judge negates the conduct that could remotely be regarded as amounting to laches, acquiescence and standing-by. The objection of the plaintiffs/respondents to Saka, son of 4th defendant (a member of the family), building on the land together with the sending away of appellants’ workers from the building sites on the land in dispute by the 1st plaintiff cannot support such defence. More fatal to the defence is the assault by 1st defendant on 1st plaintiff when he went on the land in dispute to view and stop any work on the buildings under construction by the other defendants/appellants. Acquiescence and standing-by do not invite such reaction.

It was common ground that it was the 1st defendant/appellant ( a member of plaintiffs’/respondents’ family) who sold parcels of the family land – the land in dispute – to the other defendants/appellants. His assault on the 1st plaintiff/respondent was therefore not without significance. It showed him up as desperate and it prompted and drove the point home to the plaintiffs/respondents to seek redress in court. The intensification and continuation of the construction and erection of defendants’/appellants’ buildings even after service of the writ of summons belies any claim to ignorance of the claim of title by the plaintiffs/respondents. It is therefore, crystal clear that it was not the plaintiffs’/respondents’ failure to assert their claim that led the appellants to expend money or alter their position.

We also find no evidence of standing-by throughout the proceedings. The learned trial Judge and the justices of the Western State Court of Appeal were, in our view, fully justified in dismissing and rejecting the defences of laches, acquiescence and standing-by. Grounds 1 and 4 have not been made out and therefore fail.

Turning to ground 3 which deals with the joinder of a claim for possession with the claim for declaration of title, we find ourselves unable to accept the proposition of learned counsel for the appellants that the joinder was improper and “that the claim for possession should have been struck out or dismissed as on the findings the defendants were not in possession.” No where in the judgment of the learned trial Judge did the learned Judge make any finding to the effect that the defendants were not in possession. If there had been such a finding, ground 1 of the grounds of appeal would not arise and would not have been argued at length.

The case of Aromire v. Awoyemi (1972) (Part 1) 1 All NLR 101 cited by learned counsel can be distinguished from the instant appeal. It dealt with and highlighted the conflict between the claims for damages for trespass and for recovery of possession. The claim for damages for trespass postulates that the plaintiff is in possession while the claim for possession postulates that he was not in possession at the relevant time. This court has since Aromire v. Awoyemi was decided repeatedly drawn attention to the self-contradiction in many cases coming before it. We will refer to the case of Kelani Banjo and Anor. v. Lamidi Aiyekoti and Anor. (1973) 4 SC 89 where at page 111 the contradiction was clearly explained as follows:-

“There is one other point. The claim for possession, in the circumstances of this case, is inconsistent with the claims for damages for trespass and for an order of injunction both of which assume that the plaintiffs/respondents were lawfully in possession at the material time. We have occasion to deal with this point before in Jimoh Adebakin v. Sabitiyu Odujebe (SC. 42/70) reported in 1972) 6 SC. 208 at page 216, where we observed as follows:-

“It seems that the evidence accepted by the learned trial Judge was that the plaintiff was always in possession before the defendant entered the land vi et armis. If that is so, a claim for recovery of possession is appropriate for a trespasser does not by the act of trespass secure possession in law and if the plaintiff was always in possession then the defendant can only be liable for damages in trespass and to an order of injunction.”

We are in no doubt that the statement above represents the true state of the law but find it inapplicable to the claims in the instant appeal. We observe that the claims endorsed on the writ of summons and Statement of Claim filed in this case on appeal to us are for (1) a declaration of title and (2) recovery of possession. The plaintiffs/respondents did not add a claim for damages for trespass or for an order of injunction to bring the action within the purview of the above statement of law. There is therefore, no contradiction between the two claims endorsed on the writ to warrant the striking out of the claim for possession. We would emphasise that in the circumstances of this case, without the order for possession, the plaintiffs/respondents would have had an important judgment against the 2nd, 3rd, 5th, 6th 7th and 8th defendants/appellants who were not even restrained from continuing the erection of buildings on the land in dispute by the service of the writ of summons issued to commence these proceedings in the High Court. We can find no substance whatever in this ground.

Ground 3 therefore fails.The appeal on the whole fails and is hereby dismissed.

The judgment of the Western State Court of Appeal delivered on the 17th day of July, 1975 affirming the judgment of Coker, J., delivered on 28th day of May, 1973 is hereby affirmed.

And the appellants shall pay the respondents costs in these proceedings assessed at N339.00 (three hundred and thirty-nine Naira).

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Other Citation: (1978) LCN/1971(SC)