Rafiu Ayoola Wawamosi & Anor. V. Chief M. A. Adeoti & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

AWALA, J.C.A,

The Appellants as Plaintiffs filed this action at the Oyo State High Court, Holden at Ibadan wherein they claimed as per their Amended Statement of Claim dated 23/2/90 in paragraph 23 thereof as follows:-

(i) A declaration that Ekarun Wawamosi Family is entitled to a Customary Right of Occupancy to all that piece or parcel of land, lying and being at Odo-Ona Elewe Road, Oluyole Local Government Area, Ibadan Division.

(ii) One Hundred Naira (N100.00k) being damages for trespass committed by the Defendants, when, they unlawfully entered upon the Plaintiffs’ farmland, situate, lying and being ,at Odo-Ona Elewe Road, Oluyole Local Government Area, Ibadan Division and which still continues despite repeated warnings.

(iii) An Order of perpetual injunction restraining the Defendants, their agents or servants or privies or anybody claiming through them from further trespass on the said farmland, which is shown on a Plan NO.KARA/OY/MSC/09/87 DATED 17/8/87.

On the other hand the Respondents who were the Defendants thereat filed an Amended Statements of Defence dated 28/1/91 in which they pleaded at paragraph II thereof as follows:-

“11. Alternatively, the Defendants will contend at the trial that the Plaintiffs are guilty of laches, acquiescence and standing by”

At the trial that eventually ensued, the Appellants (as Plaintiffs) called four witnesses, while the Respondents (as Defendants) called two including the 1st Defendant himself in proof of their respective cases.

In the judgment delivered on 2/2/95, the Learned Trial Judge, Adeniran J. held as follows at page 115J of the record. The judgment is of moment so it is reproduced copiously in part.

“In this case the Defendants have raised the defence of laches and acquiescence in paragraph 11 of their Statement of Defence of laches (sic) and set out facts on which they relied for that defence in paragraph 9. I am of the view that it is incumbent on the Plaintiffs who have filed a Reply to the said Statement of Defence to set out facts which makes the defence of laches and acquiescence not applicable or maintainable in this case.

In the circumstances I accept the Defendants’ evidence that they have on the land in dispute houses in addition to using the same for farming purposes. But before the doctrine of laches can avail a party, the court must necessarily consider the length of the delay and the act done by the other party to make the complaining party believe he had waived his right. See Popoola vs. Adeyemo (1992) 8 NWLR (Pt. 257) 1. In Adeniran vs. Alao (1992) 2 NWLR (Pt.223) 350. Here Adeniran’s case (supra) the Court of Appeal upheld the equitable defence of estoppel of laches, standing by and acquiescence on the basis of the evidence which was accepted as established that the Respondent in that case was on the land in dispute from 1975 to 1984. In the instant case to the knowledge of the Plaintiffs the Defendants bought the land in dispute between 1971 and 1972 from those who had no power or authority to sell the same. As I have found the Defendants immediately went into possession and built farm houses thereon. I am of the view that those farm house (sic) are of permanent structures which should have attracted the attention of the family to the invasion of their rights. This action was not commenced until 1987. But the Plaintiffs have said they have been warning the Defendants repeatedly. They said each time protest was made the Defendants would cause members of the family to be arrested by the Police and locked up in Police Cells. They averred in paragraph 16 of the Amended Statement of Claim that the Plaintiffs will rely on the extracts from the crime ( sic) the Nigeria Police but (not) no (sic) such extracts were produced before the court.

PW3 stated in her evidence that Yesufu Salako who was at the material time the head of the family did not take any action until his death in 1980. It is also the Plaintiffs’ case that in January 1987 they caused a letter to be written to the Defendants. A copy of the said letter was not produced and no explanation was given as to why the copy was not produced. I am not satisfied with the evidence of the Plaintiffs that between 1971 and 1987 they warned the Defendants about their acts of trespass on their land. Clearly the possession by the Defendants of the Wawamosi Family (sic) land was adverse. This adverse possession existed since 1971 and as I have found nothing was done about it by the family until 1987. In the circumstances I find the defence of laches and acquiescence established and on this ground the Plaintiffs’ claim fails and is accordingly dismissed”.

Dissatisfied, the Appellants appealed to this court with four original grounds of appeal which was later amended with the leave of this court to six grounds from which four issues are distilled. The Respondent on the other hand formulated one. (By the way, the Appellant also filed a Reply Brief in which they raised two (2) issues). The Appellants four (4) issues read as follows:-

ISSUE ONE (1)