HAMZA & ORS v. EBUGEWA & ORS (2022)

HAMZA & ORS v. EBUGEWA & ORS

(2022)LCN/16777(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, June 24, 2022

CA/AS/270/2014

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

1. ALHAJI HAMZA 2. ALHAJI WAHEED ADEAGBO 3. MALLAM LUKEMAN 4. USMAN A. MOHAMMED 5. MUHOMOD JAMIU AKANNI (For Themselves And On Behalf Of The EKUREDE-ITSEKIRI MOSQUE Muslim Brothers And Sisters, Warri) 6. KELLY MAHAMUD EBUGEWA APPELANT(S)

And

1. MADAM JEMIGBESHE EBUGEWA 2. PATIENCE ODOKUMA (Struck Out By Order Of 23/4/2008) 3. CHARLES EDEGBELE (For Themselves And On Behalf Of The Ebugewa Family Of Ekurede-Itsekiri Excepting The 6th Defendant) RESPONDENT(S)

RATIO

THE POSITION OF LAW ON HOW ISSUES BETWEEN PARTIES ARE DISCOVERED

In civil proceedings conducted by pleadings in the High Court, the real issue and matters really in dispute between parties and upon which it is necessary to lead evidence are discovered upon a comparison of the averments in the statement of claim and the statement of defence. See ADEDEJI V. OLOSO & ANOR (2007) LPELR-86 (SC) AT 12 (A-B), (2007) 5 NWLR (PT. 1026) 133. An issue in dispute has been defined as a point that has arisen in the pleadings of the parties which is presented before the Court for judicial resolution. See UNITY BANK, PLC V. BOUARI (2008) 2-3 SC (PT. II) 1, (2008) 7 NWLR (1086) 372, OLAFISOYE V. FRN (2004) 4 NWLR (864) 580, (2004) 1 SC (PT. II) 27, ADEGUNLE V. GOVERNOR OF LAGOS STATE & ORS (2019) LPELR-48013(CA) AT 32-33(C-D). In OTANMA V. YOUDUBAGHA (2006) LPELR-2821(SC) AT 30 (C-D), the Supreme Court Per ONNOGHEN,J.S.C held that: ” every disputed question of fact is an issue for trial though in every case, there is always the primary and crucial issue which, if determined in favour of a plaintiff, will give him a right to the relief claimed”. PER BOLAJI-YUSUFF, J.C.A.

THE CONDITION THAT MUST BE SATISFIED FOR A LAND TO QUALIFY AS FAMILY LAND

It is settled that for a land to qualify as family land, the party who so claims must not only identify the origin of the property but also its status. See GAJI & ORS v. PAYE (2003) LPELR-1300(SC) AT 27 (A-C),(2003) 8 NWLR (PT.823) 583. PER BOLAJI-YUSUFF, J.C.A.

WHETHER OR NOT A HEAD OF FAMILY CAN VALIDLY SELL A FAMILY LAND

It has long been settled that: (1) Neither the head of the family alone nor the principal members alone can make any valid alienation or give title to any person with respect to family land. (2) A head of a family not acting as such cannot convey a valid title in respect of family land. (3) Unimpeachable title in respect of family land can only be transferred by the family when it is done with the consent and concurrence of the head and principal members of the family. See USIOBAIFO & ANOR V. USIOBAIFO & ANOR (2005) LPELR-3428(SC) AT 22-23 (B-D), (2005) 3 NWLR (PT.913) 665, ACHILIHU & ORS v. ANYATONWU (2013) LPELR-20622(SC) AT 52(A- B), (2013) 12 NWLR (PT. 1368) 256, AIYEOLA V. PEDRO (2014) 13 NWLR (PT. 1424) 409. The decision of the lower Court that the sole alienation of the family land by the 6th appellant and execution of Exhibit B which evidenced the gift of the land in dispute by the 6th appellant to the 1st -5th appellants without the consent of other members of the family and as the sole owner of the land is null and void is unassailable. PER BOLAJI-YUSUFF, J.C.A.

WHETHER OR NOT THE DOCTRINE OF LACHES AND ACQUIESCENCE APPLIES TO ACTIONS IN RESPECT OF TITLE TO LAND AND ANY INTEREST IN LAND

Apart from the fact that the doctrine of laches and acquiescence does not apply to actions in respect of title to land or any interest in land held by customary tenure, the settled principle of law guiding the Court in the operation of laches, acquiescence and standing by is that a person relying on the defence must plead and prove that the respondent fraudulently, knowingly and deliberately stood by while he changed his position. The type of conduct that will amount to laches and acquiescence will be such that will be repugnant to equity and good conscience. The nature of laches and acquiescence that will deprive a man of his legal rights and what constitutes fraud were stated by the Supreme Court Per IGUH, J.S.C in KAYODE V. ODUTOLA (2001) LPELR-1682 (SC) AT 39-40(C-E) as follows:
“…laches and acquiescence which will deprive a man of his legal rights must amount to fraud. It is added that 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. See Willmot v. Barber (1880) 15 Ch. D. 96 at 105 and Abbey v. Onenu (1954) 14 W.A.C.A. 567 at 568. The elements which have been accepted as necessary to constitute fraud of the description under reference have therefore been stated to comprise 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 expended some money or 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 as the doctrine of acquiescence is founded upon conduct with a 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. (5) The defendant, the possessor of the legal right, 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 elements exist, it is deemed that there is fraud of such a nature as will entitle the Court to restrain the possessor of the legal right from exercising it. See WilImot v. Barber (1880) 15 Ch. D. 96.”
In OKEREKE & ANOR v. NWANKWO & ANOR (2003) 9 NWLR (PT.826) 592, (2003) LPELR-2445 (SC) AT 20 (A-E) where the Supreme Court Per EDOZIE, J.S.C stated the duty on a party relying on the defences of laches and acquiescence and standing by as follows:
“The position of the law is that a party who sets up the defence of laches and acquiescence and standing-by must establish that the party against whom those defences are set up had notice of what was being done, that he did nothing to prevent it and that the position of the opposite party was being altered to his prejudice, or detriment or that he had been induced by the other party’s inaction to spend money. See Folami v. Cole (1986) 2 NWLR (Pt. 22) 367, Kayode v. Odutola (2001) 11 NWLR (Pt. 725) 659. In Abbey v. Ollenu (1954) 14 WACA 564 at 568, the West African Court of Appeal quoted with approval and adopted the dictum of Fry, J., in Willmoth v. Barber (1890) 15 Ch. D 96 at 105, which reads 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 position. 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.”
See also EKPE & ORS V. OKE & ORS (2001) LPELR-1086(SC) AT 16-(B- D), ISAAC V. IMASUEN (2016) LPELR-26066 (SC) AT (15-16 (E-A), (2016) 7 NWLR (PT. 1511) 250. PER BOLAJI-YUSUFF, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Delta State delivered in Suit No. W/63/2005 on 24/4/2013 by P. O. Onajite-Kuejubola, J. The respondents as the claimants instituted the suit against the appellants and sought declaration of title, injunction, damages for trespass, nullification and setting aside of the transfer of the land measuring 22 feet by 16 feet situate at the premises known as No. 46, Ekurede- Itsekiri Road, Ekurede- Itsekiri, Warri South Local Government Area of Delta State of Nigeria.

The case of the respondents as the claimants at the lower Court was that Eforudu was the founder of the present day Ekurede- Itsekiri including the land in dispute in this case having defrosted same as a virgin land. He among his other children begat Aguaranuwa, a female. In his lifetime, Eforudu gave the land known as Ugero part of which is now in dispute to Aguaranuwa as a gift. She took possession of the land and exercised various acts of ownership over the land. Aguaranuwa begat Okorodudu(male), Ebugewa (male), Mami (female) and Olegua (female). In her lifetime, Aguaranuwa gave part of her Ugero land including the premises known as No. 46, Ekurede- Itsekiri Road, Ekurede- Itsekiri, Warri part of which is in dispute in this case to her son Ebugewa. On the demise of Ebugewa, ownership of the land including the premises known as No. 46, Ekurede – Itsekiri Road devolved on his children/descendants namely Nagha (male) who begat the 1st Plaintiff and 1st Plaintiff in turn begat the 3rd Plaintiff. Onieyone (female) begat Menetie (female). Menetie begat Emmanuel Odokuma (male), an only child. Emmanuel Odokuma had seven children among who is the 2nd Plaintiff who is the eldest child. The descendants of Ebugewa have in time past with the approval/grant from the family exercised various rights of ownership over part of the Ugero land including the premises known as No. 46 Ekurede Itsekiri Road, Ekurede- itsetiri, Warri (part of which is in dispute in this suit). Sometime in 2000 owing to the communal/tribal clashes/crisis then in Warri and its environs the respondents left Warri for Lagos and remained there until the crisis had substantially subsided. The respondents returned sometime in 2002 only to discover that the appellants had trespassed on their family land and had commenced building a mosque structure on the land. Upon enquires made, they discovered that the appellants were purportedly put in possession of the land by the 6th appellant without the knowledge and/or consent of the respondents and/or the Ebugewa family first sought and obtained.

The appellants’ case as the defendants was that the 1st to 5th appellants duly acquired the said land from 6th appellant who at all time was the owner in possession of the land with the knowledge of other members of the family. The respondent especially the 1st respondent was at all times aware of the building of the mosque and was always visiting No. 46 Ekurede-Itsekiri during and after the building of the mosque on the said land without any complaint or disapproval by her or anybody whatsoever. They pleaded the defences of laches, standing by and acquiescence.

The 1st and 3rd respondents testified in support of their case and called one witness who testified as PW1. The 1st and 2nd appellants testified in support of their case and called two witnesses one who was originally the 2nd claimant. The name of the 2nd claimant was struck out of the suit on 23/4/2008 pursuant to a motion filed by the 1st respondent on 16/7/2007. The lower Court in its considered judgment granted the respondents’ claim.

The appellants filed a notice of appeal against the judgment on 6/5/2013. An amended notice of appeal filed on 30/11/17 was deemed as properly filed on 14/4/2018. The four grounds of appeal without their particulars are as follows:
GROUND 1
The learned trial judge erred in law when he considered and made pronouncement on the issue of partitioning of No. 46 Ekurede-Itsekiri Road, Warri not pleaded by the parties but failed to consider the issue of inheritance raised by the parties in their pleadings and evidence at the trial Court.
GROUND 2
The learned trial Judge erred in law when she held thus:
“The plaintiffs cannot be said to have been standing by and their right waved off, as canvassed by the defendants’ counsel on the face of cogent and strong evidence led by the Plaintiff of protecting the family property”.
GROUND 3
The learned trial judge did not properly evaluate the evidence before Court and this led to a miscarriage.
GROUND 4
Judgment is against the weight of evidence in this suit.

The appellants’ amended brief of argument was filed on 30/11/17. The respondents’ further amended brief of argument was filed on 16/7/20. Consequential reply to respondents’ further amended brief of argument was filed on 28/3/22. All the briefs were deemed as properly filed on 22/2/22. The appellants formulated the following issues for determination:
1. Whether the learned trial Judge was right when he held thus:
“The evidence from DW1 and 6th Defendant that it was their maternal grandmother Onieyone who built a mud house on that portion of land, No. 46, Ekurede-Itsekiri, from which they collected rent after her demise, does it make them exclusive owner of that property? The answer is in the negative, as no individual or member of a family can lay claim to exclusive ownership of the family land as in this case. The land also cannot be the private property of DW1 and 6th defendant, because their grandmother built and lived there in her lifetime, for which 1st Plaintiff also has her house on the same said land. No family member as with 6th defendant herein can make any important disposition of the family land, without consulting the elders of the family and getting their consent”.
2. Whether the trial judge was right in relying on evidence not before the Court in arriving at the conclusion/judgment that the plaintiffs cannot be said to be standing by and their right waved off.
3. Whether the trial Court was right to rely on facts not pleaded and evidence not led in arriving at its judgment.
4. The judgment was against the weight of evidence.

The respondents formulated the following issues for determination:
1. Whether the trial Judge was right to have held that the respondents’ claim in their action was not affected by the equitable defences of laches, acquiescence and standing-by and that they were proper and necessary persons to institute their action for the protection of their family land.
2. Whether from the totality of the facts pleaded and evidence led the trial Judge was right in his finding and entry of Judgment in favour of the respondents.

I have considered the issues formulated by both parties. I find issue 2 of the respondent to be apt for the determination of the appeal.

The appellants’ counsel submitted that the lower Court failed to consider the defence of the appellants that DW1, the 6th appellant and their siblings inherited the land in dispute from their grandmother and exercised exclusive right of ownership over the land and the said failure amount to a denial of fair hearing. He referred to SAVANNAH BANK OF NIGERIA PLC V. CBN (2009) ALL FWLR (PT.481) 939 AT 997 (B-D), AKOLE V. ALONGE (2009) ALL FWLR (PT.468) AT 295 (7), UZUDA V. EBIGAH (2009) ALL FWLR (PT. 493) AT 1224 AT 1247 (B-D). Counsel submitted that the defences of laches, standing by and acquiescence were sufficiently established by the appellants because the 6th appellant, DW1 and other witnesses gave evidence that the respondents and other members of the Ebugewa family were aware of the construction of the mosque and in fact, the 1st respondent who was constructing her house near the land in dispute was keeping most of her building materials in the mosque. He further submitted that the lower Court erred in law when he failed to uphold the defences of laches, standing by and acquiescence when the respondents stood by while the appellants expended money and labour in building the mosque between 2001-2002 and waited till 2005 before challenging the appellants without giving any reason for the delay. He referred to FOLAMI V. COLE (1986) FWLR (PT.21) 367 AT 375(G-H).

Counsel argued that assuming but not conceding that the land in dispute belong to Ebugewa family, any member of the family whether the oldest or the youngest has the right or the capacity to sue in respect of the land in dispute. They need not wait for the 1st respondent to return from where ever she went before challenging the appellants or protecting their family interest in the land in dispute. He argued further that the fact that no member of the Ebugewa family challenged the appellants when they were building the mosque shows that they knew that the land belong to the 6th defendant and not because the respondents purportedly travelled to Lagos between 2000 and 2002.

The respondents’ counsel in his response submitted that the decision of the lower Court was not perverse or against the weight of evidence because the respondents sufficiently established from pleadings and evidence led that the 6th appellant without their knowledge, consent and authority purportedly granted, transferred or, alienated part of their family land known and referred to as the EBUGEWA family land of Ekurede- Itsekiri Warri. He further submitted that the lower Court was right to reject the defences of laches, acquiescence and standing by because there were strong and sufficient evidence which established the fact that the respondents were away in Lagos between 2000 – 2002 when the 1st – 5th appellants perpetrated the acts of trespass on the land in dispute. He contends that the doctrine of laches and acquiescence does not affect the respondents’ right because their case is hinged on title to land under Itsekiri native law and custom. He referred to EHIMARE V. EMHONYON (1985) 9 NWLR (PT.2) 177, OLUGBODE V. SANGODEYI (1996) 4 NWLR (PT.444) 500, FINNIH V. IMADE (1992) I NWLR (PT. 109) 511.

Counsel posited that the respondents were able to prove superior traditional history of ownership and established the fact that the land in dispute belongs to the EBUGEWA family. He submitted that there was no breach of the fundamental human rights of fair hearing as all the issues joined by the parties were carefully considered by the lower Court before arriving at the decision. He posited that the decision of the lower Court was based on facts pleaded and evidence led at the trial and in accordance with established principles and laws.

In their reply, the appellants’ counsel submitted that the respondents were unable to adduce cogent and conclusive evidence of traditional history as to ownership of the land in dispute because they were unable to disclose the names of the successive holder or owners through whom they claim the land in dispute and therefore the trial Court ought not to have made a declaration of title of the said land in dispute in their favour. He referred to EGBO V. AGBARA (1997) 1 NWLR (PART 481) PAGE 293 PARTICULARLY AT PAGE 317 – 318 (RATIO 10). SANUSI VS OBAFUNWA (2006) 28 WRN 136. Counsel argued that the claim of the respondents is for Statutory Right of Occupancy and not under Customary Land Tenure System. Therefore, the submission of the respondents that the doctrine of laches, long possession and acquiescence does not apply are misconceived.

RESOLUTION
In civil proceedings conducted by pleadings in the High Court, the real issue and matters really in dispute between parties and upon which it is necessary to lead evidence are discovered upon a comparison of the averments in the statement of claim and the statement of defence. See ADEDEJI V. OLOSO & ANOR (2007) LPELR-86 (SC) AT 12 (A-B), (2007) 5 NWLR (PT. 1026) 133.

An issue in dispute has been defined as a point that has arisen in the pleadings of the parties which is presented before the Court for judicial resolution. See UNITY BANK, PLC V. BOUARI (2008) 2-3 SC (PT. II) 1, (2008) 7 NWLR (1086) 372, OLAFISOYE V. FRN (2004) 4 NWLR (864) 580, (2004) 1 SC (PT. II) 27, ADEGUNLE V. GOVERNOR OF LAGOS STATE & ORS (2019) LPELR-48013(CA) AT 32-33(C-D). In OTANMA V. YOUDUBAGHA (2006) LPELR-2821(SC) AT 30 (C-D), the Supreme Court Per ONNOGHEN,J.S.C held that: ” every disputed question of fact is an issue for trial though in every case, there is always the primary and crucial issue which, if determined in favour of a plaintiff, will give him a right to the relief claimed”.

Applying the above principles to the instant case, I am of the view that the two issues that were in dispute and which required the resolution of the lower Court by a combined reading and consideration of the entire pleadings of both parties were whether the land in dispute is Ebugewa family land and whether the respondents were aware of the gift of the land by the 6th appellant to the 1st -5th appellants and the building of the mosque and stood by and watched the 1st -5th appellants developed the land. The respondents averred in paragraphs 2 and 3 of their statement of claim that the 6th appellant is a member of Ebugewa family and that the land in dispute is part of the premises known as No. 46, Ekurede – Itsekiri Road which belong to the Ebugewa family. The appellants admitted these facts in paragraph 1 of their further amended statement of defence. However, the appellants turned round in paragraphs 5 and 6 to aver that the land originally belonged to 6th respondent’s mother and upon her death the land devolved on the 6th respondent in accordance with Itsekiri native law and custom. The lower Court considered and evaluated the evidence led. The Court came to the conclusion that the land in dispute is a family land. Therefore, the sole alienation of the land by the 6th appellant without the consent of the head and principal members of the family is invalid, null and void.

It is settled that for a land to qualify as family land, the party who so claims must not only identify the origin of the property but also its status. See GAJI & ORS v. PAYE (2003) LPELR-1300(SC) AT 27 (A-C),(2003) 8 NWLR (PT.823) 583. I have perused the entire evidence on record. The 1st respondent in her evidence in chief and under cross-examination gave evidence in support of the family tree pleaded paragraph 9 of the statement of claim. She said Onieyone and Nagha are descendants of Ebugewa. From the evidence of the 1st respondent and DWI, Nagha was the father of the 1st plaintiff. Onieyone was the mother of Menetie. Menetie begat Emmanuel Odukuma who begat Kelly, 6th appellant, DW1 and other children. DW1 said her great grandmother founded No. 46, Ekurede – Itsekiri but did not say how Onieyone Ebugewa founded the land. In any case, that evidence is contrary to the pleadings of the appellants that the land originally belonged to the 6th appellant’s mother and on her death, the 6th appellant inherited the land in accordance with Itsekiri native law and custom.

From the entire evidence on record, the 6th appellant and the 1st respondent belong to the same Ebugewa family. The house which the 6th appellant and his siblings inherited from their father is on the land known as No. 46, Ekurede – Itsekiri Road. The 1st respondent also has a house on the land part of which is now in dispute which confirms that the land is a family land. DW1 said the land on which the 1st respondent built her house was given to her by DW1 and the 6th appellant when their grandmother was alive. She said the 1st respondent and her grandmother were cousins. That fact was not pleaded and the 1st respondent was not confronted with that assertion. That evidence is an afterthought and it goes to no issue.

It has long been settled that: (1) Neither the head of the family alone nor the principal members alone can make any valid alienation or give title to any person with respect to family land. (2) A head of a family not acting as such cannot convey a valid title in respect of family land. (3) Unimpeachable title in respect of family land can only be transferred by the family when it is done with the consent and concurrence of the head and principal members of the family. See USIOBAIFO & ANOR V. USIOBAIFO & ANOR (2005) LPELR-3428(SC) AT 22-23 (B-D), (2005) 3 NWLR (PT.913) 665, ACHILIHU & ORS v. ANYATONWU (2013) LPELR-20622(SC) AT 52(A- B), (2013) 12 NWLR (PT. 1368) 256, AIYEOLA V. PEDRO (2014) 13 NWLR (PT. 1424) 409. The decision of the lower Court that the sole alienation of the family land by the 6th appellant and execution of Exhibit B which evidenced the gift of the land in dispute by the 6th appellant to the 1st -5th appellants without the consent of other members of the family and as the sole owner of the land is null and void is unassailable.

The appellants relied on the defence of laches and acquiescence. It is the contention of the respondents’ counsel that the doctrine of laches and acquiescence is not applicable in respect of land held under native law and custom. Sections 1(2) of the Limitation Law of Delta State, Cap L II. Volume 3 provides that:
(1) 1(2) Nothing in this law affects actions in respect of the title to land or any interest in land held by customary tenure or in respect of any matter which is subject to the jurisdiction of a customary Court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death.
The Supreme Court in DADI V. GARBA (1995) LPELR-910(SC) AT 11(C- E) Per MOHAMMED, J.S.C held as follows:
“The equitable doctrine of laches and acquiescence, which has been introduced in this issue, could only apply if there is proof that under native law and custom, which is binding between the parties, delay for a particular period of time to sue will affect the right of the plaintiff to claim for the recovery of the disputed property. See Taiwo & Anor v. Taiwo & Anor (1958) SCNLR 244; (1958) 3 F.S.C. 80 at 82.”
The issue in the instant case being one of title to land by inheritance under customary law falls under interest in land held by customary tenure, therefore, the doctrine of laches and acquiescence is not applicable.

Apart from the fact that the doctrine of laches and acquiescence does not apply to actions in respect of title to land or any interest in land held by customary tenure, the settled principle of law guiding the Court in the operation of laches, acquiescence and standing by is that a person relying on the defence must plead and prove that the respondent fraudulently, knowingly and deliberately stood by while he changed his position. The type of conduct that will amount to laches and acquiescence will be such that will be repugnant to equity and good conscience. The nature of laches and acquiescence that will deprive a man of his legal rights and what constitutes fraud were stated by the Supreme Court Per IGUH, J.S.C in KAYODE V. ODUTOLA (2001) LPELR-1682 (SC) AT 39-40(C-E) as follows:
“…laches and acquiescence which will deprive a man of his legal rights must amount to fraud. It is added that 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. See Willmot v. Barber (1880) 15 Ch. D. 96 at 105 and Abbey v. Onenu (1954) 14 W.A.C.A. 567 at 568. The elements which have been accepted as necessary to constitute fraud of the description under reference have therefore been stated to comprise 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 expended some money or 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 as the doctrine of acquiescence is founded upon conduct with a 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. (5) The defendant, the possessor of the legal right, 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 elements exist, it is deemed that there is fraud of such a nature as will entitle the Court to restrain the possessor of the legal right from exercising it. See WilImot v. Barber (1880) 15 Ch. D. 96.”
In OKEREKE & ANOR v. NWANKWO & ANOR (2003) 9 NWLR (PT.826) 592, (2003) LPELR-2445 (SC) AT 20 (A-E) where the Supreme Court Per EDOZIE, J.S.C stated the duty on a party relying on the defences of laches and acquiescence and standing by as follows:
“The position of the law is that a party who sets up the defence of laches and acquiescence and standing-by must establish that the party against whom those defences are set up had notice of what was being done, that he did nothing to prevent it and that the position of the opposite party was being altered to his prejudice, or detriment or that he had been induced by the other party’s inaction to spend money. See Folami v. Cole (1986) 2 NWLR (Pt. 22) 367, Kayode v. Odutola (2001) 11 NWLR (Pt. 725) 659. In Abbey v. Ollenu (1954) 14 WACA 564 at 568, the West African Court of Appeal quoted with approval and adopted the dictum of Fry, J., in Willmoth v. Barber (1890) 15 Ch. D 96 at 105, which reads 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 position. 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.”
See also EKPE & ORS V. OKE & ORS (2001) LPELR-1086(SC) AT 16-(B- D), ISAAC V. IMASUEN (2016) LPELR-26066 (SC) AT (15-16 (E-A), (2016) 7 NWLR (PT. 1511) 250. The 1st respondent’s evidence was that there was a crisis in Warri in 2000 which made her to run away to Lagos. She returned to Warri in 2002 and found the mosque on the land. DW1 who is the 6th appellant’s sister confirmed the fact that many people fled from Ekurede- Itsekiri because of the crisis in the area. She said the 1st respondent stayed in a friend’s house when she came back from Lagos. That is a confirmation of the 1st respondent’s evidence that she fled to Lagos during the crisis. The mosque was built in 2000. The 2nd appellant confirmed the fact that there was a crisis in Warri between the Ijaws and the Itsekiris from 2019-2003. The lower Court after considering the evidence led held that the respondents are not caught by the doctrine of laches and acquiescence. I have no reason to disturb that finding because the 1st respondent acted promptly when she returned from Lagos and found the mosque on the land. There is nothing done by the 1st respondent or by her conduct which can fairly be regarded as a waiver of her right or which makes it fraudulent or inequitable for her to insist on her right.

The appellants’ counsel argued that the fact that no member of the family challenged the 1st -5th appellants when they were building the mosque show that they knew that the land belong to the 6th appellant. In law, any member of the family has the right and the competence to institute an action to protect or defend a family property, with or without the consent of other members of the family. The fact that other members of the family failed to take action is not a bar to the right of the 1st respondent to protect the family land.

For the above reasons, the issued identified for determination is hereby resolved against the appellant. This appeal fails. It is hereby dismissed. There shall be N100,000.00 (One Hundred Thousand Naira) costs in favour of the respondents and against the appellants.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother, BOLAJI-YUSUFF, JCA, which has just been delivered.

I agree with the reasoning and conclusion therein which I adopt as mine in dismissing the appeal. I abide by the order as to costs in the lead judgment of my learned brother.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO J.C.A.: I have been afforded the privilege of reading a draft copy of the lead judgment just delivered by my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA and I am of the view that he has covered the field admirably and has aptly brought out the crux of this appeal and simplified it.

I also hold that the appeal is void of merits and join my Lord in dismissing the appeal.