M. Ola Owodunni V Anthony Akinsola George (1967)

LawGlobal-Hub Lead Judgment Report

BAIRAMAN,J.S.C

In this appeal the defendant complains of the judgement given by Caxton Martins J. in the Lagos High Court Suit 241/63 on 11th June,1964 declaring title to a piece of land in favour of the plaintiff and granting him possession.

It is common ground between the parties that the piece in dispute formed part of a large area which originally belonged to the Eyisha Family. It is in evidence that the Osun Apena and the Fafunmi branches went to court in 1913 about sales of pieces to one person and another and reached a settlement whereby the buyers named in it would, each upon payment of the sum against his name, be put in possession and be given a conveyance when they wished. One of those buyers was Lawani Atan or Lawani Giwa, who was to pay £10; whether he did has been mentioned in several cases. Tew J. in 1929 in Suit 105/1928 (Abijo v. Sogunro and Egba) (exhibit 6) was not willing to accept the contention that as Lawani Giwa had no receipt and no conveyance, he had forfeited his title to the land; on the other hand Johnston J. in 1954 in Suit 414/1952 (exhibit 22) (Chief Secretary to Government v. Equagoo and others) was not willing to accept the contention that he had paid, and awarded the compensation to the Eyisha Family. And in Oludipe v. Beyioku, F.S.C. 65/1956, in 1956 the Federal Supreme Court did not think that Lawani Giwas title was established (exhibit 23). We now have to consider the dispute between the parties to the present appeal.

The plaintiffs case is that he bought with a conveyance from the son of Lawani Giwa in 1956, and he traces his title back to the conveyance given to Lawani Giwa in 1911 by the son of the head of one branch of the Eyisha Family, namely, Aboki Bada, who had sold an area to Lawani Giwa in 1910 comprising the piece now in dispute. The defendant denied the plaintiffs title, but the trial judge found in the plaintiffs favour, and this is one of the complaints made by the defendant on appeal.

His other complaint relates to the trial judges decision on his defence of acquiescence on the part of the plaintiff. In the Statement of Claim the plaintiff, anticipating that plea, alleged that he came to know in July 1960 of the defendants building preparations on the land and wrote a letter of warning to him. This the defendant denied in his Defence, adding that he obtained in 1958 a conveyance from persons purporting to act for the members of the Eyisha Family, and that upon learning in 1961 that an important member had not signed his conveyance he obtained a deed of ratification from him; that he was not disturbed by anybody in his possession; that he built a large house in 1959, and more buildings in 1961; and that he would rely on laches, acquiescence, etc. And the defendant testified to that effect. In this regard it is enough to add that in his evidence the plaintiff sough to put in a copy of a letter which he said he had sent to the defendant, but it was rejected; thus the plaintiff was left in the perilous position of failing to prove his allegation of warning the defendant perilous in view of his allegation that he came to know of the building preparations in July 1960.

The principle of equity is stated in Ramsden v. Dyson (1866) L.R., 1 H.L. 129 at

‘If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented.

But it will be observed that to raise such an equity two things are required, first, that the person expending the money supposes himself to be building on his own land; and, secondly, that the real owner at the time of the expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner. For 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 all 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’.

Dyson was claiming in that case through Thornton, who as a tenant at will, or at most from year to year, had built on the land he took as tenant. Lord Cranworth goes on to say that-

‘It follows as a corollary from these rules, or perhaps, it would be more accurate to say it forms part of them, that if my tenant builds on land which he holds under me, he does not thereby, in the absence of special circumstances, acquire any right to prevent me from taking possession of the land and buildings when the tenancy has determined. He knew the extent of his interest, and it was his folly to expend money upon a title which he knew would or might soon come to an end’.

Ramsden v. Dyson was mentioned in argument before Fry J. in Willmott v.Barber (1880) 15 Ch. D. 96, in which that learned judge stated the factors in acquiescence (at p. 105), quoted and followed in Abbey v, Ollenu, 14 W.A.C.A. 567, at 568. There is no need to quote them here again: they are much to the same effect as the statement in Ramsden v. Dyson. It is convenient. however, to note here, in anticipation of the argument for the present plaintiff, the remark made by Fry J. (at p. 10 1) on the argument that Willmott (the sublessee) had opportunity of ascertaining the provisions of the original lease from Bowyer (the lessor) to Barber (the lessee): Fry J. said as follows:

‘The equitable doctrine of acquiescence is founded on there having been a mistake of fact; can it be repelled by shewing that there was constructive notice of the real facts? In every case in which a man acts under the mistaken belief that he is entitled to land, he might, if he had inquired, have found out that he had no title. And yet the Courts appear always to have inquired simply whether a mistake has been made, not whether the plaintiff ought to have made it’.

The learned judge confirmed that remark in his judgement (at p. 1(6) where he said this:

‘But, in my judgement, when the plaintiff is seeking relief, not on a contract, but on the footing of a mistake of fact, the mistake is not the less a ground for relief because he had the means of knowledge.’