Nwakobi Anachuna & Ors. Vs Eugene N. Nzekwu & Anor (1961)
LawGlobal-Hub Lead Judgment Report
This appeal is from the judgment given in two consolidated suits (0/25/58 and 0/32/58) on the 12th May, 1960, by Betuel, J., at Onitsha, in the High Court of the Eastern Region. They were cross-actions between the Ogbo (Umuasele) family of Onitsha and the people of Obosi; the parties will be referred to respectively as the Onitsha and the Obosis, as in the Privy Council judgment of the 14th February, 1955 (Privy Council Appeal No. 39 of 1951, sub nom. Chief J. M. Kodilinye and another v. Philip Akunne Anatogu and another, re-ported in (1955) 1 W.L.R. 231). The appellants are the Obosis again. This time the dispute is about possession. It will be useful to quote the following passage from the judgment of the Privy Council:
The only issue having been as to ownership nothing could or should have been decided which would in any way affect the usufructuary rights, if any, of individuals or of families or tribes to the land in dispute or any portions thereof, or as to whether any such rights are or are not conditional upon payment of rent or tribute. All such matters can only be decided in proceedings in which such issues are properly raised.
The result was that the Onitshas were left with their judgment that they were owners of the land, but the words “and possession” were struck out of the in-junction, which now reads:–
An injunction to restrain the defendants and their people of Obosi from interfering with or disturbing the plaintiffs’ owner-ship of the said land.
The consolidated suits were brought to decide possession. But there had been some preliminary skirmishing.
In 1956 the Onitshas brought suit 0/31/1956 against one Isaac Madueg-bunam Ichu, an Obosi, claiming recovery of possession of a portion of their land in Ugborimili, an order for the demolition of his buildings, and an in-junction to restrain interference with their ownership and possession of the said portion of land. Judgment was given on the 24th August, 1957, for recovery of possession; demolition was refused; but the injunction was granted. Something went wrong with Ichu’s intended appeal, and it was struck out on the 18th May, 1959 (F.S.C. 54/59). In the judgment now under appeal, the learned trial Judge states:–
In my opinion Exhibit 15 (the Ichu case) is res judicata or comes within the extension of the doctrine, but in case I am mis-taken, I will also consider the other aspects of the case.
Learned counsel for the Obosis (the appellants) has argued that the learned Judge went too far. The Ichu case could not operate as estoppel by conduct, was his first argument.
The judgment goes on to consider other aspects, and ultimately states that:–
There remains the question whether the Obosi Community can successfully resist the remedies sought against them in suit No. 25 of 1958, by raising some sort of equitable title or defence. The second argument advanced on behalf of the Obosis is that it was a mistake to reject their defence of acquiescence and laches. Their learned Counsel stressed the point of (aches rather: it was, he said to the Court for the in-formation of learned Counsel on the other side, the laches of the Crown that he relied upon; if it was complete in his favour by 1949 (when the Crown gave up the land) he was safe, otherwise not. And in his reply he said that he stood or fell on the position that the Crown had by acquiescence waived the Community’s trespass and lost the right to evict the Obosis from their farms and buildings, and that right could not revive.
Now, the trial Judge did accept the Obosis’ submission that laches or ac-quiescence on the part of the Crown would bind the Onitshas; he was of opinion, in the light of a passage in A. G. for Trinidad and Tobago v. Bourne, 1895, A. C. 83, that equitable defences were not affected by section 31 of the Crown Lands Ordinance, cap. 45, which provides that:–
No action or other remedy by or on behalf of the Crown for the recovery of possession of Crown land shall be barred or affected by any statute, ordinance, or other law of limitation.
The learned Judge proceeded to review the facts. He said that no question of acquiescence arose before 1934; in that year Government forbade both the Onitshas and the Obosis to deal with the land; the Onitshas heeded the warning, the Obosis did not; and now I quote from his judgment:–
In the next stage, between 1934-1948, the Crown not wishing to take sides in the dispute, and, having in view the abandoment of a part of the land, held their hands although in 1944, they did bring an action against a number of individual Obosis, which they finally discontinued.
The fact that the action was brought, was another gesture of ownership or something more than that; and shows that the Crown was disputing the Obosi claim, and tells against any ac-quiescence on the part of the Crown, and may destroy any estoppel which would avail against the Crown, and therefore the Ogbo family (viz. the Onitshas).
It is clear that in the period 1934-1938, the Obosi built on Crown land to the knowledge of the Crown, any other suggestion to the contrary is ridiculous, but did they build in good faith on property which they honestly believed to be their own.
The learned Judge was of opinion that acting bona fide was a causa sine qua non of the grant of equitable relief; also that there was no estoppel by ac-quiescence or implied waiver by culpable delay or negligence on the part of the Crown. His views have been criticised.
Mr Gratien’s argument for the Obosis is that the Crown went to sleep in 1934, and allowed them not only to farm but also to build up a minor township on the land as an established community; that it was an acquiescence which entitled them to unrestricted usufruct; and that the doctrine of laches was available to a person who had built fraudulently where there was no statutory bar. I now give the authorities he cited on the law. A.G. for Trinidad v. Bourne, (1895) A.C. 83. The headnote states that:-
In an action of ejectment by the Crown a defendant may set up any equitable defence which would have availed against a private plaintiff.
Judgment held to have been rightly entered for the defendant, where a concluded contract with the Crown was proved en-titling him to the issue of a grant in respect of the land in suit. That case has no bearing on acquiescence or laches, but it does establish that equitable defences are available against the Crown, according to the judgment of Atkin, J. (as he then was) in A. G. to the Prince of Wales v. Collon. (1916) 2 K.B. 193, at 204, which was also cited. For the grant point in his ar-gument that good faith is not necessary, Mr. Gratien cited Erlenger v. New Sombrero Phosphate Co., (1878) 3 A.C. 1218, for what Lord Blackburn said at p. 1278, or rather, quoted from the judgment in Clough v. The London and North Western Railway Co., Law Rep. 7 Ex. 34,35. Lord Blackburn quoted this:
We agree that the contract continues valid till the party de-frauded has determined his election by avoiding it. In such cases, (i. e., of fraud) the question is, Has the person on whom the fraud was practised, having notice of the fraud, elected not to avoid the contract? Or, has he elected to avoid it? We think that so long as he has made no election he retains the right to determine it either way; subject to this, that if, in the interval whilst he is deliberating, an innocent third party has acquired an interest in the property, if, in consequence of his delay the position even of the wrongdoer is affected, it will preclude him from exercising his right to rescind.
The words relied upon are italicised; they are:–
in consequence of his delay the position even of the wrongdoer is affected;
but those words are followed by the words:–
it will preclude him from exercising his right to rescind.
There is a contract tainted with fraud; the defrauded party, if he is applying for the equitable remedy of rescission, must do so promptly; for delay may make it practically unjust to grant the remedy, as was said in Lindsay Petroleum Co. v. Hurd, Law Rep. 5 P.C. 221, which was also a suit for the rescission of a contract obtained by fraud. It appears that laches is a defence to claims to enforce equitable rights. Mr. Ikpeazu, on behalf of the Onitshas, referred to Hanbury’s Modern Equity, 6th Ed., page 59, where it is said that:
The doctrine of laches applies only to equitable claims; it is a defence advanced by a defendant against a plaintiff who, though barred by no statutory bar, nevertheless ought not to succeed by reason of his apathy. But it can never be pleaded against a plain-tiff who has a legal claim; nay, more in Fullwood v. Fullwood (1878) 9 Ch. D. 176, it was decided that a plaintiff may have a final injunction in aid of a legal right in spite of the fact that he has been guilty of delay, provided that he is still in a position to maintain an action at law. I should quote from the judgment of Fry, J. (as he then was) in Fullwood; the learned Judge said, at page 179:
In my opinion that delay, and it is simply delay, is not sufficient to deprive the plaintiff of his rights. The right asserted by the plaintiff in this action is a legal right. He is, in effect, asserting that the defendants are liable to an action for deceit. It is clear that such an action is subject to the Statute of Limitations, and it is also clear that the injunction is sought merely in aid of the plaintiff’s legal right. In such a case the injuction is, in my opinion, a matter of course if the legal right be proved to exist.
But Mr. Gratien relies on what follows there, which is:
In saying that I do not shut my eyes to the possible existence in other cases of a purely equitable defence, such as acquiescence or acknowledgment, and the various other equitable defences which may be imagined.
I also quote what the learned Judge went on to say:–
But mere lapse of time, unaccompanied by anything else (and to that I confine my observations) has, in my judgment, just as much effect, and no more, in barring a suit for an injunction as it has in barring an action for deceit. In my judgment, the same rule applies since the Judicature Act as formerly applied in the Court of Chancery when the legal right had to be determined in an action at law. There is, therefore, no defence to this action, and the injunction must go.
The equitable defence on which the Obosis rely is lathes: it is not acquiescence in its proper legal sense, which implies that a person abstains from interfering while a violation of his legal rights is in progress. I cannot do better than cite the passage from Lord Cranworth’s judgment in Ramaden v. Dyson, L. R. 1 H. L. 129, 140, 141, which was cited in A. G. to the Prince of Wales v. Collon, (1916) 2 K.B. at page 203:-
If a stranger begins to build on my land supposing it to be his own, and 1, 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. The Obosis do not argue that their case comes within the first principle; so, I cannot see what there was to prevent the Crown from asserting the legal rights of an owner against a trespasser in 1948.
A suit by the Crown could not have been resisted by pleading limitation of time, so what is pleaded is laches, but, with respect, I do not think that the defence is available to the Obosis. They were trespassers on what they knew was Crown land: see paragraph 12 of their Defence to the Onitshas’ suit, and paragraph 7 of their Statement of Claim in their own cross-suit; and their own witness, Isaac Iweke, admitted in cross-examination that “In 1930, the Obosi Community knew the land was Crown Land” – which brings their case within the last two sentences in the above passage from Ramsden v. Dyson (supra). One trespassed, but, when the officers of the Crown came to know of it, no action was taken to evict; then another trespassed, and so it went on; but I do not see how the tortious conduct of the Obosis could have affected the legal rights of the Crown if the Crown had chosen to assert them.
It seems to me that the argument for the Obosis, that they can plead against the Crown laches because the statute of limitation does not apply, makes the Crown’s position worse than a private citizen’s. For suppose that A. owns an area of land and that B., who knows it is A.’s, builds on it without A.’s consent , but that A. does not sue him at once. If A. sues him before his suit is barred by the statute, B. cannot, I believe, validly say, Your delay in suing makes it inequitable to turn me out. Now, substitute the Crown for A.: the only difference, in my view, is that it does not matter how late the Crown may be in suing, as the statute of limitation cannot be pleaded. I think that section 31 of the Crown Lands Ordinance was intended to make the Crown’s position better. Apparently, on the argument for the Obosis, even if the Crown’s delay in suing should be less than the time allowed for suing to a private person, the Crown could be faced with a plea of laches, and the Crown’s position is worse. With respect, I think the plea of laches could not have helped the Obosis if the Crown had sued them in 1948.
There is, I fear, no merit in their conduct. There is the evidence for the plaintiffs of the Resident’s oral warnings to their Chief, to whom the Resident also sent a copy of exhibit 38, his letter of 16th June, 1942, on individual farming permits. The learned Judge says that –
Far from being permitted to build on the land they were, as they well know, forbidden to do so.
They built all the same; and, after the Crown gave up the land at the end of 1948, they went on trespassing. The idea of depriving the owners of their property without any return did not worry them: it was not until this appeal that they even suggested that, if they lost, they would like to be allowed to stay on and pay rent. They built up a case of hardship by wrongdoing, and wished to have their misconduct condoned, by putting the blame on the Crown. Having reached the view that the argument on the substance fails, I do not propose to discuss the complaint that the learned trial Judge erred in treating the judgment in Ichu’s case as estoppel under Nana Ofori Atta 11 v. Nana Abu Bonsra 11, 1958, A. C., 95.
I have, however, to express regret that the judgment under appeal was not drawn up formally. To appreciate what it is one has to discover the amended claim of the Onitshas in 0/25/58, which was for:-
1.£5,000 for damages for trespass on plaintiff’s Ugborimili land.
2.Recovery of possession of Ugborimili land now being built upon by the defendants and their people in spite of several warnings.
3.Injunction or order of court to restrain the defendants, their servants and/or agents from interfering with the plaintiffs’ title, pos-session, rights of enjoyment and disposition of the said land.
The judgment under appeal (towards the end) is:-
I award £500 damages against the Obosi community, also an injunction and the recovery of possession in the terms set out in the writ (as amended on the 23rd March, 1959) and 280 guineas costs.
I award to each of the 3rd-8th defendants in 0/25/58 £15-15s-0d, costs as against the plaintiffs, the costs of their unnecessary joinder in a personal capacity.
In 0/32/58, there will be judgment for defendants with £170 costs to the defendants.
(The defendants in 0/32/58 were the Onitshas).
At the hearing of the appeal the plan referred to was Plan No. JJ. 28/60, which bears the exhibit No. F.S.C. 1, and in which the land in question is the area lying to the south of the green line running east and west on the plan, within the land verged pink.
I would dismiss the appeal with eighty guineas costs to the respondents.
Other Citation: (1961) LCN/0173(SC)