IN THE SUPREME COURT OF NIGERIA
On Wednesday, the 18th day of December, 1974
Before Their Lordships
TASLIM OLAWALE ELIAS….. Justice, Supreme Court
DANIEL ONWURA IBEKWE….. Justice, Supreme Court
AYO GABRIEL IRIKEFE….. Justice, Supreme Court
1. ALHADJA SABALEMOTU A. KAIYAOJA
2. MADAM A. A. KAIYAOJA
3. MADAM A. AGIRI KAIYAOJA
4. SADU SALU KAIYAOJA
5. LATIFU A. KAIYAOJA(ATTORNEY FOR THE ENTIRE MEMBERS OF THE KAIYAOJA FAMILY
1. EQUITY – Equitable Defences – “Laches” and “Acquiescence” – Distinction between
Per DAN IBEKWE, J.S.C. at Pp. 8 – 9, Paras. A – A.
2. EQUITY – Laches and Acquiescence – Origin of – What entails – How laches operates
“.. the well-known fact that the equitable defences which are popularly known as “laches and acquiescence” derive from the equitable maxim “Delay defeats equities,” or “equity aids the vigilant and not the indolent.” Delay which is sufficient to prevent a party from obtaining an equitable remedy is technically called “laches”. But that does not mean that laches consists simply of mere lapse of time. In our view, in order for the defence of “laches” to operate, such lapse of time must be coupled with the existence of circumstances which make it inequitable to enforce the claim. In the absence of such circumstances, delay will be immaterial. Per DAN IBEKWE, J.S.C. at P. 7, Para. A.
3. EQUITY – Equitable Defences – When delay induces the defendant to alter his position – Whether can still avail
. Per DAN IBEKWE, J.S.C. at P. 7, Para. B.
4. LAND LAW – DECLARATION OF TITLE – Onus of proof – On whom lies
“… it is a well-established principle of law that in a claim for declaration of title, the onus is always on the plaintiff to establish his claim, and that it is not open to him to rely on the weakness of the defendant’s case. This court has always held that what is required of a plaintiff in an action for declaration of title is at least to establish his claim by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. The test is, whether the plaintiff has been able to prove to the satisfaction of the court that he has a better title than the defendant. We think that it is relevant to draw attention to the fact that subject to the well-known rule as was laid down in Akpan Awo v. Cookey Gam, 2 N.L.R. 100, and a host of other cases that followed it, the standard of proof in a claim for declaration of title is not different from that which is required in civil cases generally. Per DAN IBEKWE, J.S.C. at P. 4, Para. D.
On the 1st day of March, 1966 the plaintiffs in this case (herein appellants) instituted an action against the defendant (herein respondent) claiming declaration of title to that “piece or parcel of land situate, lying and being at 23, Safebirth Street, Mushin via Ikorodu Road, and injunction to restrain the defendant, his servants and/or agents from further acts of trespass.” The plaintiffs are the surviving descendants of the late Kaiyaoja who died in 1924 intestate leaving a large parcel of land on Ikorodu Road. Their root of title dates back to 1914 when their late father first acquired a fee simple estate in the land by virtue of a deed of conveyance dated 16th November, 1914.
After his death in 1924 the then surviving children, who were seven in number, succeeded him. It is the plaintiffs’ case that after the death of the late Kaiyaoja the land devolved on his surviving children and grand-children under Yoruba Customary Law.
There is undisputed evidence that, in 1946, the then Nigerian Government acquired a portion of the said land for the construction of the Lagos – Ikorodu Road, and that compensation was paid to the plaintiffs as owners of the land so acquired.
It is also part of the plaintiffs’ story that, before the payment of compensation, certain members of the family had purported to act through one Momoh Fashola Odogbo as their agent, but that the matter was referred to the court, which held that all the children and grandchildren of the late Kaiyaoja were entitled to share in the compensation. (Exhibits “C” and “C1” – the judgment and the schedule of claimants respectively). This story was not challenged at the trial.
Subsequently, in 1948, news reached the plaintiffs that the said Momoh Fashola Odogbo was trafficking in their family land. Immediately and without hesitation, they published warning notices on the 1st May, 1948 and 17th December, 1948 respectively. (Exhibits “D” and “E”.) As the rumour still persisted, the plaintiffs were again obliged to publish a Public Notice in the “Daily Service” of November 28, 1950. (Exhibit “D”) And even as late as 1958, the plaintiffs had to publish yet another Warning Notice dated 27/8/58. (Exhibit “F”.) Incidentally this particular Warning Notice was specifically aimed at the defendant who had then entered upon the land in dispute.
It is the plaintiffs’ contention that the disputed land forms portion of the larger parcel of land which they inherited from their late father Kaiyaoja. There is unrebutted evidence that in 1949, the plaintiffs prepared an allotment plan in respect of the whole land. (Exhibit “G.”) Ample evidence was also led at the trial to prove that the land in dispute falls within the allotment plan. The surveyor who gave evidence for the plaintiffs identified it as plots 79 and 80 on the allotment plan.
On the other hand, the defendant’s case is that he bought the land in dispute from one Pius Adebowale Fasanya. His root of title rests entirely on a deed of conveyance from Fasanya dated 9th September, 1957. It is part of the defendant’s case that, thereafter, he went into possession. According to the defendant, he commenced building on the land in dispute in November 1958 and completed it in 1959.
Clearly, the building must have gone up with astonishing speed. It is relevant to observe here that the defendant in his statement of defence made no reference whatsoever to the said Momoh Fashola Odogbo who, according to the plaintiffs’ allegation, was illegally meddling with their family land. As a matter of fact, the defendant never claimed his title through Odogbo, and no mention was made of Odogbo in his evidence-in-chief. But under cross-examination the defendant was so badly shaken that he was obliged to confess as follows:-
“Fasanya told me he bought the land from Odogbo …….. I don’t know Odogbo. I did not know where Odogbo got the land from.” (The underlining is ours).
We shall have cause to revert to this serious admission made by the defendant to the effect that his immediate predecessor-in-title, Fasanya, had confided in him that he bought the land in dispute from Odogbo; and that he, the defendant, did not know where Odogbo got the land from. It is strange that Odogbo was not called as a witness by the defence. Accordingly, the defendant’s root of title seemed to hang in the air.
After hearing evidence from both sides the learned trial Judge, Odumosu J., dismissed the plaintiffs claim on the grounds that they had failed to establish their title to the land in dispute, and also that the defendant had succeeded in his plea of acquiescence, laches, and standing-by.
Dissatisfied with the decision of the learned trial Judge the plaintiffs lodged an appeal to this court. Mr. Abudu, learned counsel for the appellants sought and obtained leave to argue the following grounds of appeal:-
“1. The learned trial Judge erred in law when he failed to compare plaintiffs root of title with that of defendant so as to conclude which of the parties had legal right to possession of the land in dispute. The defendant is a squatter since his vendor had no legal estate to transfer. The sale is void.
2. The learned trial Judge misdirected himself in law when he found that plaintiffs failed to establish the title of Kaiyaoja to the land in dispute the identity of which land is clearly known to both parties as admitted in pleadings.
3. The learned trial Judge erred in the law when he found that the plaintiffs acquiesced and that defendant is a purchaser without notice whereas the defendant had notice both directly and constructively.
4. The judgment is against the weight of evidence.”
Before dealing with the points raised by the learned counsel for the appellants, we think that we should first of all draw attention to one aspect of this case which, however, was not canvassed before us. Both in their pleadings and at the trial, the plaintiffs virtually described Odogbo as a villain, who took delight in selling their family land without their consent. The defendant, on his part, very carefully avoided tracing his title to Odogbo. But, fortunately for all concerned, it happened at the trial that Fasanya, who sold the land to the defendant, had himself bought it from Odogbo. In our view, this important admission on the part of the defendant points irresistibly to the conclusion that the plaintiffs in the present case should have a better title to the disputed land as against the defendant.
Now, to deal with the main complaints raised against the judgment of the learned trial Judge by Mr. Abudu, learned counsel for the appellants: The first complaint deals with the following observation made by the trial Judge, which, according to the learned counsel, did weigh heavily upon his mind in reaching his decision:
“The surveyor who gave evidence for the plaintiffs did not attempt to relate the land in dispute to the land in Exhibit “A” on which the plaintiffs rely for their title. In the circumstances I uphold Defence Counsel’s submission that the plaintiffs have failed to establish the title of Kaiyaoja to the land in dispute.”
We agree with the learned counsel for the appellants that, bearing in mind the particular facts of this case, the learned trial Judge erred in failing to compare the plaintiffs’ root of title with that of the defendant so as to ascertain which of them had the better title and, therefore, the legal right to possession of the land in dispute.
We are not unmindful of the fact that it is a well-established principle of law that in a claim for declaration of title, the onus is always on the plaintiff to establish his claim, and that it is not open to him to rely on the weakness of the defendant’s case. This court has always held that what is required of a plaintiff in an action for declaration of title is at least to establish his claim by preponderance of evidence. It is often enough that he has produced sufficient and satisfactory evidence in support of his claim. The test is, whether the plaintiff has been able to prove to the satisfaction of the court that he has a better title than the defendant. We think that it is relevant to draw attention to the fact that subject to the well-known rule as was laid down in Akpan Awo v. Cookey Gam, 2 N.L.R. 100, and a host of other cases that followed it, the standard of proof in a claim for declaration of title is not different from that which is required in civil cases generally.
The only difference, if we may say so, rests on the fact that the burden of proof is on the plaintiff who is claiming title, and that it never shifts to the defendant throughout the trial. The difference therefore, lies, not in the standard of proof, but on the burden of proof.
Now, with particular reference to that portion of the judgment of the learned trial Judge referred to above, we take the view that the appellants in this case are not guilty of the omission which was attributed to them by the court below. It seems to us that the appellants left no stone unturned in their attempt to identify and relate the disputed land to the relevant plans filed by them. Put in a nutshell, their case is that after inheriting their late father’s estate in 1924, that they themselves in 1949 caused an allotment plan (Exhibit “G”) to be prepared in respect of the whole land inherited by them; and that for the purpose of this case, they also instructed one Michael Adetola Kukoyi, a licensed surveyor, to make a plan of the area of land in dispute for them.
(Exhibit “H”.) During his evidence at the trial, the surveyor testified as follows:-
“I know Sadu Salu Kaiyaoja. I carried out a survey on his instructions and I produced a plan. This is the plan. (X FOR IDENTIFICATION) tendered, no objection, admitted and marked Exhibit “H”. Before I did the survey I was shown a Lay-out Plan of the area. I see Exhibit “G”, it is the one shown to me. The portion edged RED in Exhibit “H” is within the area in Exhibit “G” marked Plots 79 and 80.”
Continuing his evidence, the surveyor then related the land in dispute to the land contained in the plan attached to the defendant’s root of title, (Exhibit “J”), as follows:-
“I see this certified True Copy of conveyance dated 9/9/57 (Exhibit “J”) I see the plan attached to the conveyance. I can relate the plan to Exhibit “H”. The plan attached to Exhibit “J” appears to cover the same portion of land as I have shown in Exhibit “H”.
It is, therefore, obvious that, as from the death of their late father in 1924, the appellants in the present case have been exercising maximum acts of ownership in respect of the land in dispute as witness the fact that in 1946, they were paid compensation by the then Government of Nigeria for the strip of land acquired for the construction of the Ikorodu Road; and that in 1949, they prepared an allotment plan on which the land in dispute is shown as plots 79 and 80.
Furthermore, the appellants seem to have been in undisturbed possession, at least, from 1924 until 1958, when the present defendant broke into the land without their permission. One cogent point which seems to have escaped the attention of the learned trial Judge is that plots 79 and 80 (the disputed land) form part of a number of other plots which belong to the plaintiffs, as shown on the allotment plan. It has been held that, in a claim for the ownership of land, the fact that the land in dispute is contiguous with other lands belonging to the plaintiff is enough to raise a probability (though not a presumption) that the land in dispute also belongs to the plaintiff. It is our view that, quite apart from any such probability which many operate in favour of the present appellants, there is also suffice evidence to warrant the declaration which they sought.
We shall now turn to the other complaint made by learned counsel for the appellants. We think that the relevant portion of the judgment should be set out as follows:-
“I am satisfied that the plaintiffs knowing their own title to the land in dispute, have suffered the defendant who was ignorant of that title to expend a sum of about 5,000 pounds on the land in erecting a building thereon; the defendant having expended so much money is entitled to have his supposed title to the property confirmed: Ramsden v. Dyson (1866) L.R. I.H.L. 129, 140 ……….. The defendant has succeeded in his plea of acquiescence, laches and standing by and the plaintiffs’ claim will be dismissed.”
Again, we agree with Mr. Abudu, learned counsel for the appellants, that the facts of this case do not support the finding of acquiescence, laches, and standing-by which was made by the learned trial Judge against the appellants. In the first place, the appellants’ persistence in issuing Warning Notices does not seem to be consistent with acquiescence. Moreover, the period of delay which occurred in the present case by itself does not seem to us to be long enough as to amount to laches. It is true that there may be acquiescence even without any delay, but we are satisfied that the evidence in this case discloses nothing with regard to the conduct of the present appellants which could be taken to mean acquiescence on their part.
In the light of the facts and the particular circumstances of the case before us, we take the view that the doctrine of laches and acquiescence was wrongly applied to this case.
It is hardly necessary for us to re-state here, the well-known fact that the equitable defences which are popularly known as “laches and acquiescence” derive from the equitable maxim “Delay defeats equities,” or “equity aids the vigilant and not the indolent.” Delay which is sufficient to prevent a party from obtaining an equitable remedy is technically called “laches”. But that does not mean that laches consists simply of mere lapse of time. In our view, in order for the defence of “laches” to operate, such lapse of time must be coupled with the existence of circumstances which make it inequitable to enforce the claim. In the absence of such circumstances, delay will be immaterial.
We wish, however, to stress that no hard and fast rule can be laid down with regard to this aspect of the law, for each case will have to be determined with due regard to its own peculiar facts and the surrounding circumstances. It has been held that delay will be fatal to a claim for equitable relief if the plaintiff has so acted as to induce the defendant to alter his position on the reasonable faith that the claim has been released or abandoned. See Allcard v. Skinner (1887) 36 Ch. D. 145. Also, where the delay may have resulted in the destruction or loss of evidence by which the claim might have been rebutted, the doctrine has been invoked. See Bourne v. Swan and Edgar Ltd. (1903) 1 Ch. 211 at 219, 220.
We are satisfied that, on the facts of this case, the present appellants could not be said to have slept upon their rights and acquiesced for any great length of time. On the contrary, they had been so wide awake, so vigilant, that they issued Notices upon Notices, for the benefit of the would-be purchasers, warning them to desist from buying from any person other than themselves, the plots of land within the allotment plan. (Exhibit “G”.) Furthermore, even if the respondent’s version were to be accepted, at least for the sake of argument, it is still on record that when the respondent commenced building on the disputed land in 1958 that the appellants promptly issued a Warning Notice dated 27/8/58, (Exhibit “F”) which was ignored by him.
Moreover, there is nothing in the record of appeal to impute bad faith to the appellants in this case. In other words, even if there had been delay on their part which, in our view, is not the case, we would still have been satisfied that there is no evidence that such delay was coupled with the existence of any particular circumstances which would make it inequitable for the appellants to be allowed to enforce their claim. We are of the opinion that, on the whole, the appellants’ conduct in this regard has been quite reasonable, especially in view of the public Notice and the intermittent Warning Notices which flowed from them, and which, in our view, should be enough to put a prudent purchaser on his guard.
By way of conclusion, we wish to draw attention to the fact that there is some subtle distinction between laches and acquiescence. It is true that the two overlap, and that in pleadings, the two defences go together like twins; but, we think that it is desirable to bear in mind that there is indeed a distinction. We shall, therefore refer to two cases, which seem to us to throw a good deal of light on this distinct nature of these equitable defences.
We shall first of all begin with the doctrine of laches: We can think of no clearer description of laches than that given by Sir Barnes Peacock in Lindsay Petroleum Co. v. Hurd (1874) L.R. 5 P.C. 221 at 239:
“Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be 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………., 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 or the other, so far as relates to the remedy.”
We have ourselves carefully examined the evidence adduced by the parties in the case before us, and we are satisfied that at no time was the respondent in this case under any misapprehension which led him to suppose that his title to the disputed land was accepted by the appellants. On the contrary, it would appear that the respondent was fully aware of the risk which he ran by buying the land from Fasanya, who bought from Odogbo who however had nothing to convey. Most probably, that might be the reason why the defendant had originally chosen to withhold that fact from the court, until it suddenly came up under cross-examination. At any rate, as we have said earlier on, it does not seem to us that the so-called delay on the part of the appellants in this case is enough to justify the defence of laches set up by the respondent. Laches is an equitable defence and it seems to us that the respondent in the present case has no equity which on balance outweighs the appellants’ right.
The second case deals specifically with acquiescence. As we have already stated, there can be acquiescence without delay. Again, we consider that there is no better description of the doctrine of acquiescence than the one given by Fry J., in Wilmott v. Barber 15 Ch. D. at p. 105, where he laid down the law as follows:-
“It has been said that the acquiescence which will deprive a man of his legal rights 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.”
We think that we should here reiterate the point which we have made earlier on in this judgment that, on the facts of this case, the appellants’ conduct is free from blemish. In our view, they have done nothing that smacks of fraud. As for the respondent, we think that hardship built up by wrongdoing ought not to evoke the sympathy of the court in favour of the wrongdoer. The rule is caveat emptor – let the buyer beware. And that is exactly what the present respondent has failed to do. It is settled law that a purchaser of land, who fails to heed these words of wisdom, does so at his own peril. For, sooner or later, he will discover, just as the respondent in this case has done, that he has bought a law-suit.
For the reasons we have given, the decision of the learned trial Judge in this case cannot stand. In the circumstances, the appeal succeeds and it is allowed. The judgment of the High Court, Ikeja delivered on 20th day of February, 1967 together with the costs awarded to the defendant is hereby set aside. In its place we make an order for a declaration that the appellants are entitled to all that piece or parcel of land situate and being at 23, Safebirth Street, Mushin; we also grant an injunction to restrain the respondent, his servants and/or agents from committing further trespass. And this shall be the judgment of the court. The respondent shall pay the appellants N110.00 being the costs in the court below, and the costs of this appeal assessed at N80.00 in this Court.
Mr. S.O.O. Abudu…..For Appellant
Mr. J.A. Cole…..For Respondent