M. Ola Owodunni V Anthony Akinsola George (1967) LLJR-SC

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.’

In the judgement now under appeal Caxton-Martins, J. does not mention those authorities; they were not referred to by the counsel who addressed him. Dealing with the defendants case in equity, the learned judge says as follows:

“ Although it has not been established by evidence that plaintiff warned the defendant off the land, but the duty is on the defendant to make a thorough search about the title of those who offered him the land for sale, satisfy himself that the vendors were the owners and that the land was free from superior claims. Defendant himself admitted that the Land Registry showed that previous conveyances had been registered when he made a search. The search should have been conducted before the purchase and this would have prevented the defendant from buying a law suit instead of a land.’

In effect the learned judge accepts that the defendant built without any warning from the plaintiff of his claim of title, but must lose because he could have found out that the plaintiff had a superior claim to the land. We need not inquire whether that is so. The defendant bought with a conveyance and built at great expense on the land in the belief, here assumed for this aspect of the appeal to have been mistaken, that the land was his; the plaintiff knew about it and regarded the land as his own, but did not warn him, and now wants the land and buildings for himself. The trial judge grants it to him on the basis that the defendant ought not to have made a mistake on the ground of what is usually described as constructive notice; but, with respect, that is helping the plaintiff to reap the fraudulent fruit of standing by, and the equity of the defendants case must prevail.

Mr Ayoola, who appeared for the plaintiff, conceded, very rightly and properly, that the judgement recognised the equity of the defendants case but rejected it on the ground of constructive notice, and sought to support this ground of rejection by citing Morayo v.Okiade, 8 W.A.C.A. 46. We must say at once that if the judgemenr in Morayos case adopted that ground we cannot, having regard to Willmott v. Barber (above), follow it.

Reading the judgement we find it mentions Ramsden v. Dyson and goes on to say (at p. 48) that Caroline Morayo ‘did all within her power to apprise the respondents of her claim to the property but in spite of that knowledge they embarked on the erection of the building.’ That is an understandable ground for the decision. But the judgement goes on to say as follows:

‘Moreover, in view of Rennie v. Young (1858) 44 E.R. 939 in which it was held that the equitable rule as to the effect of a persons lying by and allowing another to expend money on his property does not apply when the money is expended with knowledge of the real state of the title, we are unable to reconcile the learned judges finding on the third ground of defence namely that the defendants admit that they made no inquiries as to Oshodis title and must be held to have had constructive notice of the documents on which their title was based namely the auctioneers receipt and plaintiffs Own conveyance with his decision that the appellant is estoppel.

We are of opinion that having held that the respondents had constructive notice of the appellants title he was precluded on the authority of Rennie v. Young (supra) from finding that acquiescence on the part of appellant operated as estoppel.’

In Rennie v. Young, Rennie put engines into a ship by agreement on certain terms with Green, who had an invalid contract for the purchase of the ship; Rennie did so with the knowledge and approbation of the Youngs, the registered owners, but the engines did not enable the vessel to attain the required speed, and the Youngs refused to pay the stipulated price or allow Rennie to remove the engines. He filed a bill in Chancery for a decree that the Youngs and Green should pay a certain amount, that the ship be sold to satisfy it etc., and obtained a decree in certain terms, from which-the Youngs appealed. Rennies case in support of the decree was that the Youngs encouraged him to put the engines into the ship under his agreement with Green, under which he was entitled to remove the engines if they did not attain the required speed. Knight Bruce, L.J. held that no equity arose in the case, which was a mere money demand for labour and materials to be enforced at law. Turner, L.J. also thought there was no case in equity against the Youngs, and added:

‘Either they were under a contract with the plaintiff or they were not. If they were, the plaintiffs remedy is at law. If they were not, then the only circumstance on which an equity can be founded is, that they allowed the plaintiff to put his machinery into a ship which legally belonged to them. But the plaintiff does not say that he did not know that the ship belonged to them. If a man places his property on the land of another person with full knowledge of that persons title, how can the fact that the landowner assented to its being placed there give an equity to have it restored? If it did, the doctrine would come to this, that whenever a man lays out money on another persons land with the consent of the owner, he has an equity to have it repaid.’

That appears to be the basis of the statement in the headnote (at p. 940) that-

‘The equitable rule, as to the effect of a persons lying by and allowing another to expend money on his property, does not apply where the money is expended with knowledge of the real state of the title.’

Rennie knew he was putting engines into a ship belonging to the Youngs; the observations of Turner, L.J. do not in our opinion warrant the engrafting of ‘constructive notice’ in the Morayo judgement upon the doctrine of standing by.

Having decided that the plaintiff was debarred in equity from turning out the defendant, we find it unnecessary to decide whether the plaintiff has the better title, and offer no opinion on the merits of his title or of the defendants: for in any event we would refuse to give the plaintiff a declaration of title in the exercise of our discretion on what is essentially a matter of equity.

Before closing this judgement we would ask judges of the High Courts to state in their decisions not only the exhibit numbers but in addition the survey number of the plan put in for the land in dispute, and also the registration number of the conveyance put in, so as to facilitate interested persons in ascertaining the effect of the decision in a given case. The plan put in by the plaintiff here is numbered C.T.220/62; his conveyance is registered as No. 67 at page 67 in vol. 1080 of the Land Registry in the office at Lagos.

The defendants appeal is allowed with costs assessed at sixty-seven guineas; the judgement of 11th June, 1964 in the Lagos High Court Suit 241/1963 is hereby set aside, the claims in the suit arc dismissed, and judgement shall be entered accordingly with costs to the defendant assessed at forty-three guineas; and if the defendant has paid costs as ordered by the High Court, they shall be refunded to him.

Other Citation: (1967) LCN/1476(SC)