Madam Aderemi Ogunko & Ors V. Alhaja Amuda Shelle (2003)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A.

This is an appeal against the decision of Adeniji, J., of the Lagos State High Court in suit No. LD/262/89 delivered on the 29th day of April, 1992.

The appellants who were the plaintiffs at the lower court had claimed against the respondent as defendant, the following reliefs:
“1. A declaration that the plaintiffs are the persons entitled to possession and right of occupancy in respect of the landed property situate and lying and being at and known as No. 14 Jonah Lane, Lagos.
2. Possession of the said property.
3. An account of all rents collected from January 1963 until possession is given up.”

The relevant paragraphs of the plaintiffs’ pleadings filed on 20/12/89 are as follows:
“1. The plaintiffs are the descendants and Legal Administrators of the estate of late Madam Omodele, the legal owner of No. 14, Jonah Lane, Lagos. The plaintiffs shall rely on letters of Administration granted to the plaintiffs by the High Court of Lagos State on the 5th of September, 1989.

2. The said late Madam Omodele is the legal free-holder of the plot or parcel of land and building situate, lying and being at and known as No. 14, Jonah Lane, Lagos given under crown grant dated 17th November, 1866 and registered as No. 149 at page 149 in Volume 2 of the registered of Deeds kept at the Lagos State Land Registry, Lagos, Nigeria. The plaintiffs shall reply on a certified true copy of the said crown grant.

3. The said late Madam Omodele left two sons by name Odofin Ogunko and Solomon Ogunko to inherit her No. 14, Jonah Lane, Lagos on her death.

4. The said property known as No. 14, Jonah Lane, Lagos thereby became the family property of the Ogunko and Solomon Ogunko.

5. The plaintiffs in this suit are descendants and legal representatives of the two branches of the said Ogunko family the legal joint owners of the said No. 14, Jonah Lane, Lagos the subject-matter of this suit.

6. There has been no partition of the said family property.

7. Sometimes in 1961, some of the children of the said Solomon Ogunko who formed a part of a branch of the said two branches of the entire Ogunko family purported to have sold the said family property to the Shelle family of Lagos in the names of Abiodun Shelle, Animota Shelle, Alliu Dodo Adewale and Seidu Shelle.

8. As a follow-up to the said purported sale of the said Ogunko family property to the said Shelle family of Lagos, about August, 1961, the said members of the said Shelle family of Lagos in the said names of Abiodun Shelle, Animota Shelle, Alliu Dodo Adewale and Seidu Shelle submitted application to the Lagos Land Registry for first registration of the said No. 14, Jonah Lane, Lagos in their said names to applicants under title No.L04005.

9. Following the said application by the defendants, the plaintiffs through their solicitor Mr. J. Ola Orojo now Hon. Justice J. O. Orojo Rtd. lodged an objection in writing to the defendants registration. The said letter would be tendered at the trial of this suit.

10. By the decision of the Lagos Land Registry as a court on the 18th December, 1962, the application of the defendants ancestors was rejected. The certified True copy of the proceedings and judgment of the said court will be tendered at the trial.

11. Following the dismissal of the defendants first registration, the plaintiffs through their solicitor the Hon. Justice Orojo Rtd. wrote another letter dated the 24th of December, 1962 warning the defendants from making further claim on the property in dispute and account of all rents collected. The said letter shall be founded at the trial of this suit.

12. The defendants as descendants of the said Abiodun Shelle, Animota Shelle, Alliu Dodo Adewale and Seidu Shelle are claiming the land in dispute.

13. The plaintiffs aver that as a result of the letter referred to in paragraph 11, the defendants made several moves to buy the free hold of land in dispute from the plaintiff in that:
a) When on the 15th of May, 1978 the plaintiffs again through their Solicitor Chief T. O.  Shobowale Benson requested all rents should be paid to the plaintiffs, the defendants made attempt to buy the free-hold from the plaintiffs.
b) The plaintiffs again through their Solicitor Dapo Fafiade, Esq. cause another letter dated 18th January, 1983 to be written to the defendants telling them to desist forthwith from collecting rents from the tenants of the property in dispute.
c) Pursuant to the letter dated 18th January, 1983 the defendants made further fruitless efforts for settlement.

14. The plaintiffs aver that following failure of the attempt by the defendants to buy the property in dispute from the plaintiffs, the plaintiffs again through their Solicitor Dapo Fafiade wrote the Tenants on 25th May, 1988 telling them to pay their rents direct to the plaintiff.

15. Pursuant to the letter referred to in paragraph 14, the defendants made another fruitless effort to settle with the plaintiffs.

16. The plaintiffs aver in furtherance of their claim to the land in dispute they commissioned a developer and was asked to inspect the property. It is all attempt to inspect the property that the defendants disturbed the developer and the defendants there and then claimed joint ownership of the property with the plaintiffs. This claim of joint-ownership is further confirmed by the letter of the defendants Solicitors Y.A.B. Olawale & Co. dated the 18th of October, 1988.

17. The claim of joint ownership is also resisted in the plaintiffs’ solicitor letter dated the 25th January, 1989.

18. The plaintiffs would reply on and tender all letter and documents referred to in this statement of claim.

19. That the defendants have no legal or any joint interest and right over the said property known as No. 14, Jonah Lane, Lagos, the subject-matter of this suit.”

Defendant filled statement of defence on 26/2/90. It is summarized as follows:
1. The defendant conceded that the landed property was originally granted to Madam Omodele by a crown grant dated 17th day of November, 1866 and registered as No. 149 at 149 in Volume 2 of the register of Deed at the Lagos State Registry.

2. The defendant asserts that the said landed property had long been sold and transferred to one Ogunmuko who was later known to be Solomon Ogunko by virtue of a Deed of Conveyance dated the 11th June, 1891 and registered as No. 134 at page 406 in Volume 17 of the Lands Registry.

3. Thus late Madam Omodele had sold and divested her interest in the said landed property situate at 14, Jonah Lane, Lagos to Ogunmuko later known to be Solomon Ogunko.

4. Thus, late Madam Omodele had no more interest whatsoever in the aforesaid landed property 14, Jonah Lane, Lagos having sold and divested her interest in the said property.

5. The plaintiffs/appellants therefore have no locus standi to bring this action on behalf of the estate of late Madam Omodele against the defendants/respondent.

6. Even assuming the plaintiffs have locus standi which is denied, the action of the plaintiffs was statute-barred at the time the action was instituted on the 20th day of December, 1989.

7. The right of action of the plaintiffs, if any, accrued on the 18th day of December, 1962 but waited till 21st December, 1989 before they woke up from their slumber.

8. The plaintiffs were also caught by the equitable defence of laches and acquiescence for allowing the defendant to spend enormous amount to improve the property by developing same into a three storey building and also the payment of tenement rates and other government imposition on the said landed property.

After exchange of pleadings by parties, matter proceeded to trial. The first and second plaintiffs gave evidence on their own behalf. One Adekogbamighe Faikan, a civil servant also testified for the plaintiffs. Defendant was herself the only witness for defence.

In his considered judgment, the learned trial Judge dismissed plaintiffs claim. He found the plaintiffs guilty of laches and acquiescence. He also held that the plaintiffs’ action was caught by statute of limitation. Being dissatisfied with the decision the appellants now lodged an appeal to this court on four grounds with their particulars these grounds are reproduced as follows:
a) The learned trial Judge erred in law considering section 16(2) and section 21 of the Limitation Law, Cap. 70 of Lagos State, 1973 without taking into account the effect of sections 40 and 45, of the same law inspite of the letter by the defendants counsel to the plaintiff/appellants acknowledging the ownership of part of this to the plaintiffs and which letter was tendered as exhibit D2 during the trial.

Particulars of error
(i) Evidence was adduced by the plaintiffs which was never controverted by the defendant that there were prolonged negotiations between the plaintiffs’ interest in the land in dispute all along and that there was an acknowledgment of the plaintiffs interest in the land in dispute vide exhibit D2.
(ii) The learned trial Judge fell into error in law when he failed to consider that the essence of the equitable doctrine of laches and acquiescence is that if a land owner stood by when a stranger developed his land in good faith without the owner appraising the stranger of the defect of his title, then such owner would be estopped from reaping the benefit of such development but if however the owner promptly warned the stranger of the defect of his title as was done by the appellants to the respondent in this case, the doctrine would not avail such stranger as decided by the Supreme Court in the case of Omolere Ikuomola v. Samota Oniwaya and Others reported in (1990) 4 NWLR (Pt. 146) 571, (1990) 7 SCNJ 147 at 148.
b) The learned trial Judge erred in law by resting his judgment on the equitable doctrine laches and acquiescence on the part of the plaintiffs/appellants without considering the fact that after the judgment of the law court in 1962, the defendant/respondents knew that they continued to remain in possession of the land in dispute in bad faith and not in good faith.

Particulars
(i) The learned trial Judge fell into error when he did not consider that the defendants had continued to remain on the land in dispute mala fide since 1962, when their application for first registration was dismissed on the objection of the plaintiffs/appellants.
(ii) The learned trial Judge fell into error by falling to consider the evidence that the defendants had continued to approach the plaintiffs for the purchase of the plaintiffs interest in the land in dispute coupled with letter of acknowledgement by the defendant’s counsel dated 18/10/1988 and marked as exhibit D2 in this case.
(iii) The learned trial Judge also fell into error by failing to advert his mind to the fact that the judgment of the law court dated 18th December, 1962 was enough warning to the defendants of the defect of their title and despite this judgment the defendants in bad faith continued to remain on the land and so the equitable doctrine of laches and acquiescence should not avail them as adverse possessor.
(c) The learned trial Judge erred in law by resting his judgment on the equitable doctrine of laches and acquiescence on the part of the plaintiffs/appellants without considering the fact that the defendants/respondents went on the land mala fide.

Particular of error
(i) The learned trial Judge fell into error in law when he did not consider that the defendants/respondents since the judgment of the lower court on the 18th December, 1962 have no legal right to be on the land and they had knowledge of the said fact yet they continued to remain on the land in dispute.
(d) The judgment is against the weight of the evidence before the trial Judge.”

In compliance with the rules of this court, parties filed their respective brief of argument. Appellants filed their brief on 21/9/2001 in which two issues were distilled thus:
“(i) Whether the defence of laches and acquiescence availed the respondents in the circumstance.
(ii) Whether the appellant cause of action is caught by statute of limitation and therefore unenforceable.”

The respondent on the other hand adopts the two issues formulated for determination by the appellants in their brief and added a third issue and re-arranged the issue for determination by making third issue to be the first.

Hence the respondent’ issues for determination are set out as follows:
“1. Late Madam Omodele having sold and divested property No. 14 Jonah Lane, Lagos (hereinafter referred) to as the “property in dispute”. Whether the appellant have locus standi to bring this action for the estate of late Madam Omodele.
2. Whether the defence of laches and acquiescence availed the respondent.
3. Whether the plaintiffs was statute-barred at the time the action was instituted on 21st December, 1989 when infact the light action accrued on 18th December, 1962.”

The background facts that give rise to this appeal have been fully set in the relevant paragraphs of the pleadings of parties earlier reproduced above. It is needless repeating them. However, I wish to observe that the additional issue formulated by the respondent in his brief does not arise from any of the four grounds of appeal. This court has stated in a number of times that a respondent who did not cross-appeal or file a respondent’s notice cannot frame issue outside the grounds filed by the appellant. He is perfectly right to have adopted the issues formulated by the appellants based on the grounds of appeal before this court.

Consequently, I shall ignore the respondent’s additional issue he formulated and I am of the view therefore that the two issues formulated by the appellants, which the respondent has by consent adopted will aptly and sufficiently determine this appeal.

The first issue formulated by the appellants is whether the defence of laches and acquiescence availed the respondent in the circumstances. This issue affords me an opportunity to do an appraisal of the position of the law relating to the applicability of the defence of the doctrine of laches and acquiescence. The argument of the learned counsel for the appellants, having regard to a number of Supreme Court decisions he relied upon, may be summarized thus.

It is that since the possession of the respondent of the disputed land cannot be said to be adverse, then in the circumstances, the doctrine of laches and acquiescence have no application to the matter. On the other hand, learned counsel to the respondent also relying on a number of authorities proffered contrary argument and submitted that the appellants” case was caught up by the doctrine of laches and acquiescence.

In the English case of Lindsay Petroleum Company v. Hurd (1874) L.R. 5 PC 221 at 239 the doctrine of laches was aptly summarized by Sir Barnes Peacock in the followings words:
“Now the doctrine of laches in court of equity is not an arbitrary or 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 of the other, so far as relates to the remedy.”

In the case of Fagbemi v. Aluko (1968) 1 All NLR p. 233 at 237, delivering the lead judgment, Ademola, C.J.N. and referring to Lindsay Petroleum case had this to say:
“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 plaintiffs 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 on which it would be unreasonable to place him if the remedy were afterwards to be asserted the doctrine of laches would apply.”

In the same vein as for the term “acquiescence,” the learned authors of Halsbury’s Laws of England, 4th edition, paragraph 1473 at page 994 described it as follows:
“The term (acquiescence) is however properly used where a person having right, and seeing another person about to omit or in the course of committing an act of infringing upon that right, stands by in such a manner as really to induce the person committing the act and who might otherwise have abstained from it, to believe that he assents to its being committed, a person standing by cannot afterwards be heard to complain of the act.”

Thus, the Supreme Court while applying the above principles in the case of Kayode v. Odutola (2001) 11 NWLR (Pt.725) 659 at 679 facts of which are similar to the instant case, held as follows:
“There is no duty on a person having estate or interest in land or other property for that matter to raise protest against a trespass or encroachment on the property or invasion of his right on same if he has reason to believe that such a trespasser or encroacher or invader mistakenly conceives himself to be acting lawfully because in such a situation there cannot be said to be any misrepresentation, delusion or inaction from the owner’s part, encouraging or fostering the trespasser in expending money by developing the property.”
If this statement is to be taken to its logical analysis, it means that a stranger who builds on another’s 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 allow such real owner afterwards to assert his title to the land on which the stranger has expended money on supposition that the land was his own. The court will then consider that the owner saw the mistake into which the stranger had fallen and was the duty of such owner to be active and to assert his adverse title. It would be dishonest on the part of the owner to remain willfully passive in order afterwards to reap from the mistake which such owner might have been able to prevent.
The point being made here is that laches and acquiescence which will deprive a man of legal right must amount to fraud. That is a man must not be deprived of his legal rights unless he has acted in  such a way as would make it fraudulent for him to set up those rights.

In Abbey v. Ollenu (1954) 14 WACA 567 at 568, the respondent’s case was that he only came to know the defect in his title some years after his buildings had been completed and the appellants with full knowledge of their rights and of what he was doing stood by and made no objection or attempt to warn him. In such circumstances, his counsel urged that the appellants would not now be heard to complain, they having acquiesced in his actions.

FOSTER-SUTTON (p) in his judgment referred to the case of Wilmott v. Barber (1880) (15) Ch. D. 96 at p. 105 where FRY (J) eloquently summed up the equitable doctrine of acquiescence thus:
“It has been said that the acquiescence which will deprive a man of his legal right must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. 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 those rights.”

The learned Justice FRY in that case then proceeded further to state the elements or requisites necessary to constitute fraud namely as follows:
1. The plaintiff who sets up the doctrine of laches and acquiescence must have made a mistake as to his legal rights.
2. Such a plaintiff must have done some act on the faith of his mistaken belief.
3. The defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff because the doctrine of acquiescence is founded upon the conduct with knowledge of one’s legal rights.
4. The defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights.
5. The defendant, (he possessor of the legal light must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done either directly or by abstaining from asserting his legal rights.

Where all these five elements exist, there is fraud of such a nature as will entitle the court to restrain the possessor of the legal right from exercising it.

Now coming to the facts of this instant case, it is common ground that title to the property in dispute was vested in one Madam Omodele (now deceased) by virtue of crown grant dated 17/11/1866 and registered as No. 149 at page 149 in Volume 2 of the register of deeds at the Lagos State Lands Registry. The appellants become administrators of the Estate of the said Madam Omodele by virtue of letters of administration granted in their favour by the High Court of Lagos State on 5/9/1989. The said property remained the family property of the Odofin Ogunko and Solomon Ogunko families as it was never partitioned.

In 1961, some of the children of Solomon Ogunko purportedly sold the property to the descendant of respondent therein. In August, 1961 the respondent’s ancestors submitted an application to the land registry for first registration under title No. L04005.

It is then the appellants raised objection to the registration. The objection was upheld and the respondent’s application for first registration was dismissed on 18/12/62. The respondent then took possession of the building but excluding one room which the plaintiffs occupied which she later leased out to same tenants. It is also common ground that by letter dated 18/10/1998 the respondent through her counsel acknowledged the appellants’ part ownership of the building. With these facts, there can be no fraud on the party of the appellants such as to disentitle them to the reliefs being sought.

The respondent was not mistaken as to the defect in her title.

The registration of the appellants’ title at the land registry, duly serves as notice to the respondent. The respondent application to the land registry as a first registration was opposed by the appellants and same was dismissed.

It is also on record that the judgment of Supreme Court in suit No. 32/1943 between Kehinde Ogunko & Ors. v. John Feyisara Ogunko & Ors. confirmed that the disputed property was family property. On the relevance of this Supreme Court judgment to the present case the learned trail Judge on page 57 of the records of appeal, observed that:
“In the said judgment, the light or interest of the plaintiff in the land and the interest of Solomon Ogunko from whom the defendant purportedly is claiming her interest in the land was determined. The court decided that it was a family land. So it is still a judgment binding on the parties and their privies.”

I do not think that the respondent was mistaken as to her defective title. She and her ancestors were never encouraged by the appellants in their expenditure of money on the property.

I agree with the learned counsel for the appellants that the possession of the respondent was not bona fide. It appears unconscionable I do not see how this court will lend its machinery in aid of the respondent in the circumstances. I cannot infer from the appellants any act that could give rise to the conclusion that they willfully remained passive when they became aware of the respondent’s interest shown on the land in dispute. The possession of the respondent cannot be said to be adverse.

Possession is not total. This respondent conceded in her statement of defence in  paragraphs 12 and 14 that her ancestor was not put into possession of the entire building at all material time. The circumstances in the present case and the case of Kayode v. Odutola (supra) are quite comparative. I therefore inescapably lean on the conclusion passage of the Supreme Court at page 675 paragraphs D-H reproduced hereunder.
“Furthermore, for a delay in taking action, there must be knowledge on the part of the plaintiff of all the facts giving him a cause of action. See Mogaji v. Nuga (1960) 5 FSC 107, where it was held that laches is not delay alone; some other factors must exist such as knowledge.
Besides, in addition to the action the respondent brought against the appellant in 1964, he appellant ought to have known that the respondent had interest in the land and ought to have exercised caution … It is for this reason that I agree with the respondent’s submission that in putting up more buildings on the land by way of expansion, the appellant could not be acting bona fide that he was the owner thereof. And since laches and acquiescence are equitable reliefs to defeat the rightful owner of his legal rights or claims for trespass and injunction, the bona fides of the possession becomes material. I venture to opine therefore that the appellant’s defences of acquiescence and laches could not stand and the court below, rightly in my view, rejected them based upon the trial court’s finding to the effect that: ‘Since the purpose of cross-examination is to test
the credibility of a witness, I think the admission of the defendant that the plaintiff had earlier sued him is admissible to negative his plea of acquiescence. See Kaiyaoja v. Egunla (1974) 12 SC 55 at 65.”
In this circumstance, the first issue is resolved in favour of the appellants.

On the second issue, the question is whether the appellants’ cause of action is caught by statute of limitation and therefore unenforceable. It is the contention of the learned counsel for the appellants that by operation of section 71 of the Limitation Law of Lagos State, Cap. 70, if that law applies to the instant case at all, it started to run on the commencement date of the law that is 31/12/1966 when the law is expressed to take effect. He submitted that by operation of section 68 (1) of the said law, the limitation of the action was not affected by the law.

Learned counsel for respondent however was of the view that the Limitation Law of Lagos State, Cap. 70 applied to this action. It is submitted that the law provides a limitation period of 12 years by virtue of section 16(2), (9) and by section 21 on the expiration of that period an action brought by the appellants to recover the land was extinguished.

When a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. An action instituted after the expiration of the prescribed period is said to be statute-barred. A statute removes the right of action the right of enforcement, the right to judicial relief and leaves the plaintiff with a bare cause of action which he cannot enforce. See Egbe v. Adefarasin (1994) ALR 54, (1987) 1 NWLR (Pt. 47) 1. Also Obiefuna v. Okoye (1961) 1 SCNLR 144. The finding of the lower court on this issue is reproduced thus:
“By 1962 the plaintiffs family had opportunity to take action for recovery of the land in dispute now in adverse possession of the defendant’s family they waited for extra 15 years … doubtful validity.”

Here the issue for resolution is whether the Limitation Law of Lagos State relied upon by the learned trial Judge is applicable to this action. In this regard, sections 68(1) and 71 of the Limitation Law of Lagos State then applicable provide as follows:
1. Section 68 (1):
“Subject to the provision of subsection (2) of this section this law shall not apply to actions in respect of any matter which, immediately before the commencement of this law, was regulated by customary law.

Section 71:
“Any English statutes of general application relating to the limitation of actions which were in force in Nigeria immediately before the commencement of this law shall cease to apply.”

It is clear by the provision of section 71 that if the limitation law applies to this present case at all; it will start to run on the commencement date which is 31/12/1966 when the law expressly takes effect. Besides this, the cause of action was regulated by customary law prior to the promulgation of the limitation. The property had always been family property which the parties agreed it was not partitioned. The fact that the property was family property was confirmed by the Supreme Court in suit No.SC/32/1943.

By operation of S. 68(1) of the law, limitation law is inapplicable to the cause of action herein. To that extent the learned trial Judge, with due respect, was not right when he held that the appellants’ cause of action became statute-barred in 1974.

In any case, by virtue of section 19(1) of the limitation law for the statute of limitation to apply, there must have been adverse possessor. And in order to amount to adverse possession against the owner certain acts must have been done which are inconsistent with his enjoyment of the land for the purpose for which he intended to use it. An interloper’s possession may not be adverse when the owner has no present use for the land but for the future use. See Williams Brothers Supply Ltd. v. Raftery (1958) 1 Q.B. 159.

The property in dispute is a family building consisting of seven rooms. Respondent took possession of six rooms not as a trespasser but under an inconclusive contract of sale. The respondent claimed that she bought the property from one segment of the family who was disposed to selling it, but unfortunately negotiations to that effect has been protracted. Besides, the possession of the respondent is not exclusive and therefore it cannot be said to be adverse.

The learned trial Judge correctly held that the family property was not partitioned it is the claim of the respondent that she was put into physical possession of the prope11y but excluding one room.
It would appear to me that the appellants’ claim at the lower court related to the entire property. By exhibit D2 and evidence thereof respondent clearly conceded one room to the appellants. However, the learned trial Judge after upholding the defence of laches and acquiescence dismissed the claim of the appellants in its entirety.

This decision, no doubt, is contrary to what was held per Adio, JCA in Olosunde v. Oladele (1991) 4 NWLR (Pt.155) 713 at 732. That:
“The trial Judge was not bound to dismiss the appellant’s claim to the whole land in dispute by reason that the defences of laches and acquiescence succeeded in relation to a part of it as that would have been inequitable and unjust. It was perfectly proper for the learned trial Judge to confine his judgment on the question of the operation and effect of the aforesaid defences to that part of the land in relation to which the defences had succeeded.”

Again, in this circumstance the second issue must be resolved in favour of the appellants. However, I am not unmindful of the relief sought by the appellants that the judgment of the lower court be set aside and enter judgment in favour of the appellants as per their writ of summons filed on the court below. This is normal for an appellant who has successfully won his appeal on the merit. This is not the case here. The claims of the appellant was held to have been extinguished by the statute of limitation. The learned trial Judge rested his judgment on equitable doctrine of laches and acquiescence on the part of the appellants without considering the claims of the parties on merit. I have held that the position taken by the learned trial Judge was wrong.

In this circumstance, I find that this appeal succeeds. It should be allowed. I hereby set aside the judgment of the lower court and order that the action be transferred to be heard expeditiously by another Judge based on the pleadings of the parties. Costs to be borne by each party.

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Other Citations: (2003)LCN/1430(CA)