CHIEF GODSPOWER R. AWOMUKWU & ANOR v. CHIEF SUNDAY AWOMUKWU (2013)

CHIEF GODSPOWER R. AWOMUKWU & ANOR v. CHIEF SUNDAY AWOMUKWU

(2013)LCN/6508(CA)

In The Court of Appeal of Nigeria

On Friday, the 15th day of November, 2013

CA/OW/18/2009

RATIO

INGREDIENTS TO BE PROVEN TO SUSTAIN A PLEA OF ACQUIESCENCE AND LACHES

It thus expanded (4) four ingredients that must be proved for the plea of acquiescence and laches to be sustained as follows:
(a) The person seeking to set up the plea must have made a mistake as to his legal right.
(b) He must have expended some money or must have done some act on the faith of his mistake belief;
(c) The person whose right has been infringed must know of the existence of his own right which is inconsistent with the right mistakenly claimed by the person seeking to set up the plea of acquiescence as the doctrine of acquiescence is founded upon conduct with knowledge of one’s legal rights.
(d) The person whose right has been infringed must have encouraged the person seeking to set up the plea of acquiescence in the latter’s expenditure of money or in the other acts which he has done wither 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. In the instant case, there is no evidence whatsoever to establish laches or acquiescence against the Respondent. See Abbey vs. Ollenu (1954) 14 WACA 567; Taiwo vs. Taiwo (1958) SCNLR 244. In the instant case, the pleadings and evidence of the Appellants did not show that the Appellants made mistake as to their legal rights. PER UWANI MUSA ABBA AJI, J.C.A. (PJ)

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

Between

1. CHIEF GODSPOWER R. AWOMUKWU
2. CHIEF MATTHEW UFOMADU Appellant(s)

AND

CHIEF SUNDAY AWOMUKWU Respondent(s)

UWANI MUSA ABBA AJI, J.C.A. (PJ) (Delivering the Leading Judgment): This is an Appeal against the judgment of Honourable Justice Onuoha A.K. Ogwe at High Court No. 3 Umuahia in Suit No. HU/68/2004, delivered on 30th June, 2008.

The Respondent as Plaintiff at the trial Court filed an action seeking the following reliefs namely:
1) A Declaration that the Plaintiff is entitled to the Statutory Right of Occupancy over the piece of land traditionally known as “AMA OBU OKPUALA” situate at Ihie Ndume in Umuahia North Local Government Area of Ibeku Abia State and which is more particularly shown and verged (Red) in plan No. VEN/D.12/2004.
2) A Declaration that the 1st Defendant is not entitled to sell or transfer any title or interest over the aforesaid “AMA OBU OKPUALA” land to the 2nd Defendant or anybody else without the consent of the Plaintiff.
3) A Declaration that the purported sale or disposition or transfer of any interest or title by the 1st Defendant to the 2nd Defendant without the consent of the Plaintiff is null and void.
4) An Order compelling the Defendants to pay the sum of 2.5 Million Naira only as Damages to the Plaintiff for trespass to the said “AMA OBU OKPUALA” land of the Plaintiff. And for the loss of use from 1992 to date.
5) An Order of Perpetual Injunction restraining the Defendants, their agents, heirs, privies or workers from entering into the said “AMA OBU OKPUALA” land of the Plaintiff.

Parties joined issues by their Pleadings and the matter went on trial.

In a considered Judgment delivered on the 30th June, 2008, the learned trial Judge entered judgment for the Plaintiff, the Respondent herein.

The facts leading to the present Appeal are as stated in the Pleadings and the evidence adduced before the trial Court.

The Plaintiff/Respondent said he was in Kano working as a Civil Servant and left the land in dispute being his share of his father’s estate with the 1st Defendant/Appellant, his brother of full blood. The land in dispute called “Ama Obu Okpula” was shared amongst the five children of his father after the death of their father. That the land in dispute is his own share of their father’s property.

It is in evidence that the 1st Appellant sold the land in dispute to the 2nd Appellant on the pre that he had the consent and authority of the Respondent to do so. When the Respondent came back home from Kano in 1992 as a result of religious disturbances, it was then made known to the Respondent that his portion of the land was sold to the 2nd Appellant by his brother, the 1st Appellant.

The 1st Appellant on the other hand said he had a written consent from the Respondent to sell the land in dispute to the 2nd Appellant as far back as 1978 and that the Respondent cannot renege from the said transaction. The said consent letter was not tendered as it was said to have been lost.

At the conclusion of the hearing, the learned trial judge entered judgment for the Respondent on 30th June, 2008. Being dissatisfied with the said judgment, the Appellant filed a Notice of Appeal dated 22nd September, 2008 contained at pages 175 – 177 of the Records of Appeal upon two (2) Grounds of Appeal, as follows:

Ground One
The Learned trial Judge erred in law when he continued hearing the Suit, when the evidence before him showed that he lacks jurisdiction to entertain same.

Ground Two
The learned trial Judge erred in law when he failed to apply the doctrine of latches and acquiescence having regard to the evidence before the Court.

In compliance with the Rules and practice of this Court, the Appellants filed a Brief of Argument dated 10th October, 2009 and settled by C. A. Kalunta of counsel of the Appellants, wherein he nominated two Issues for determination:-
1. Whether the learned trial Judge was right when he said that a declaratory action has no time limit and is not affected by the Statute of Limitation.
2. Whether the Respondent is not caught by the doctrine of acquiescence, latches and standing by.

The Respondent filed a Respondent’s Brief dated 25th June, 2010, settled by A. Ogbonna, Esq. of Counsel and nominated the following Issues for determination to wit:
1. Whether according to the state of Pleadings and evidence in this Suit the Defendants/Appellants have pleaded the Law of Limitation fully with particularity and proved in evidence that this Suit is statute barred; and
2. Whether the Plaintiff/Respondent is caught by the equitable doctrines of acquiescence, latches and standing by.

At the hearing of the Appeal on the 18th September, 2013, Learned Counsel for the Appellants, C. A. Kalunta Esq. adopted the Appellants’ Brief of Argument filed on the 10th October, 2009 the Appellants’ Reply Brief filed on the 8th March, 2013 and urged the Court to allow the Appeal.

A. Ogbonna, Esq, adopted the Respondent’s Brief of Argument filed on the 28th June, 2010 and urged the Court to dismiss the Appeal.

A careful consideration of the issues raised by each of the parties in this Appeal are almost the same in con but for the fact that the Respondents issues are more detailed, and encapsulates the main issue in controversy between the parties. Same shall be adopted in the consideration of this Appeal.

Issue One:
Whether according to the state of pleadings and evidence in this suit, the Defendants/Appellants have pleaded law of limitation fully with particularity and proved in evidence that this suit is statute barred.

In arguing this issue, C. A. Kalunta, Esq. for the Appellants referred to the Respondent’s claim before the lower court and the reliefs sought and submitted that by virtue of Section 69 of the Limitation Act, a claim for Declaration of Title was regarded as an action for recovery of land and the Respondent’s claim was statute barred.

The Appellants argued that the action is statute barred because by Exhibit D “The Agreement of Sale Document” the alleged sale of the land from the 1st Appellant to the 2nd Appellant was done in 1978. He further argued that DW3, wife of the 2nd Appellant gave evidence to the effect that the Respondent was coming home during Christmas and New Year and was also coming to their restaurant on regular basis. The Appellant went further to argue that failure of the Respondent to commence this Suit until 2004 makes the case statute barred. He cited the following authorities: Banjo, Ojo vs. HC (1979) 2 LRN Pg. 396; Koney (Robbert Okpoti) vs. Union Trading Co. Ltd (1934) 2 WACA 188. Solomon vs. African Steamship Co. Ltd 9 NLR 99; Odulaje vs. Hadded (1973) NSCC Vol. 8 Pg 614. It is also argued that the Respondent did not plead or lead evidence of any form of sickness or promise from the Appellants or any other bona fide reasons to account for the delay in bringing this action. It is also the view of Learned Counsel that there is no evidence of concealed fraud on the part of the Appellant as the land was developed conspicuously and there are shops and restaurants owned by the wife of the 2nd Appellant (DW3), who testified that the Respondent was visiting home from his base and would occasionally come in with friends to take some pepper soup she was selling. This evidence counsel argued was not denied or challenged by the Respondent. He submitted that where evidence given by a party to any proceedings are not challenged by the opposite party who had the opportunity to do so, it is always open to the Court seized of the proceedings to act on the unchallenged evidence. Reliance was placed on the following cases: Odulaje vs. Haddad (1973) NSCC Vol. 8. 614; Nigerian Maritime Services vs. Alhaji Bello Afolabi (1978) NSCC Vol. 2, 80; Ikwuke vs. Anachuna (1996) 1 NWLR (PT 424) 355; and Nat. Insurance Cop. Nig. vs. Power & Ind. Eng. Co. Ltd (1986) 1 NWLR 1.

Learned Counsel referred to the evidence of the Respondent at page 99 lines 17 to 19 of the Records of Appeal. The evidence of the 1st Appellant at page 110 lines 27 to 29 of the Records of Appeal, which he argued have not been denied by the Respondent and thus the cause of action arose in 1978 when the land was sold to the 2nd Appellant. It is thus his view that the learned trial judge was wrong in his finding that the Appellants have not canvassed any date when the cause of action arose and that without the precise date, it will be indeed difficult to determine when the cause of action arose.

Learned Counsel referred to the evidence of the 1st Appellant at page 110 lines 27 to 31 of the Records of Appeal that in December, 1978 when the Respondent came home, he called him to his house and gave him the Agreement and N200.00 and he thanked him and gave him N50 for drinks, which he argued was not challenged and further that the Respondent agreed that he was visiting home especially during Christmas and new year. He argued that where a Defendant wants to raise the defence that the Plaintiff’s action is time barred, must plead that defence and such specific matter as the Limitation Law must be expressly set out or pleaded in the Statement of Defence and once it is so pleaded; the Plaintiff cannot be granted protection of that law. The following cases were relied upon, Ishola Balogun Ketu vs. Chief Wahabi Onikoro (1984) 10 SC 265 at 267 to 268; Obiefuna vs. Okoye (1964) 1 All NLR 89; Ademola II vs. Thomas (1946) 12 WACA 81. Learned Counsel thus argued that the Appellants gave enough particulars to show that he was relying on a Statute of Limitation as his defence. He referred to paragraphs 20(c), 6(b) and 13 of the Appellants’ Statement of Defence to further submit that the trial court ought to have taken up the issue once raised. He also relied on the case Osadebey vs. A.G. Bendel State (1991) 1 NWLR (PT 169) 525; and Din vs. A.G. Federation (1986) 1 NWLR (PT.17) 437. The Court was urged to hold that the finding of the learned trial judge is wrong and to resolve this issue in favour of the Appellant.

In his response, learned counsel for the Respondent submitted that the law imposes a duty on a Defendant to specially plead and prove what Limitation Statute he is relying on as a bar to the suit. Counsel relied heavily on the express provisions of Order 25 Rules 6 of Abia State High Court (Civil Procedure) Rules 2001 which provides as follows:

1. “A party shall plead specifically any matter for example performance release, any relevant statute of limitation, fraud, or any facts showing illegality which if not specifically pleaded might take the opposite party by surprise.”

2. “Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the Plaintiff or the Defendant, as the case may be, and subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the Plaintiff or the Defendant shall be included in his Pleading.”

3. “Without prejudice to paragraph (1), a Defendant in an action for the recovery of land shall plead specifically every Ground of Defence on which he relies, and a plea that he is in possession of the land by himself or his tenant is not sufficient.”

Learned Counsel argued that the Appellants’ defence that the Plaintiff’s claim is statute barred and therefore incompetent, did not plead any specific Statute that bars the action. He argued that a party cannot rely on a Statute he has not pleaded, citing in support; Oline vs. Obodo (1958) CNLR 298; Famuyiwa vs. Folawiyo (1972) 5 SC 112; Lana vs. University of Ibadan (1991) 4 NWLR (PT 64) 245 at 260. He argued that, having not pleaded any specific statute with particularity as required by Order 25 Rule 6 of Abia State High Court (Civil Procedure) Rules 2001, all arguments as contained in paragraphs 1 to 22 of the Appellant’s Brief go to no issue, citing the case of Kayode vs. Odutola (2001) 11 NWLR (PT 725) 659. It is his view that having not pleaded any specific limitation law or statute, the court cannot be left to speculate as to which particular limitation law bars the action. He relied on Oyebamiji vs. Lawanson (2008) 7 KLR (PT 258) 2991.

The learned counsel argued that the Appellants failed to specifically plead the particular statute making the suit statute barred. For the issue of Statute of Limitation to avail the Appellants; counsel stated, they must go by Order 25 Rule 6 of the Abia State High Court Civil Procedure Rules and specifically plead the said Limitation Law. The Respondents relied on the Supreme Court decision of Oyebamiji vs. Lawanson (2008) 7 KLR (PT.258) 2991, wherein the Supreme Court held that a party wishing to rely on a Statute of Limitation or Administration of Estate law must specifically plead same. Also, in the case of Ketu vs. Onikoro (1984) 10 SC 205 at 261 – 268, the Supreme Court held that it is cardinal rule of pleading that such specific matters as Limitation Law be expressly set out or pleaded in the Statement of Defence, once it is not pleaded, the Defendant cannot be granted the protection of that law.

The Respondents further argued that by the provision of Order 25 Rule 6(1)(2)(3) of the Abia State Civil Procedure Rules that, apart from not pleading any specific Limitation Law or Statute fully with due particularity as required by law, the Appellants did not plead due particulars or facts which could be relied upon to invoke the defence created by any Limitation Law.

Counsel also stated that apart from not pleading any specific Limitation Law or Statute, the Appellants did not plead due particulars or facts which could be relied upon to invoke the defence created by any limitation law to enable them prove with credible evidence that the action was indeed statute barred as required by Order 25 Rule 6(1), (2) and (3) of the Abia State 2001 Rules (Supra), the case of SBN Ltd. vs. Pan Atlantic Shipping and Transport Agencies Ltd. (1987) NSCC Vol. 18 (PT.1) at 70. He argued that Rules of Court averment are to be obeyed and cited Ketu vs. Onikoro (1984) 10 SC 265 at 267 – 268.

He argued that the isolated pieces of evidence listed out in Pages 7 to 13 are pieces of evidence given in proof of when and how they bought the land, from whom and what use the land was put into, and not evidence led in proof of the action being statute barred. He cited Nsiege vs. Mbgbemena (2007) 4 KLR (PT 234) 1781 at 1783. He further stated that the Appellants did not plead or canvass any particular date as the date on which the cause of action accrued to the Respondent as according to his view, it is their duty to say. The Court was urged to hold that the Appellant have failed woefully to plead any specific Statute of Limitation with the due particularities as required by law and to resolve the issue against the Appellants.

In his Reply Brief, learned Counsel for the Appellants again referred to the Judgment of the lower court at page 171 lines 5 to 7 and the reliefs sought by the Respondent and argued that there is nothing different between reliefs (i), (iii) and (iv) and that the learned trial Judge after accepting that the suit was statute barred also held that the Statute of Limitation does not apply to declaratory reliefs. It is the view of Counsel that the trial Judge erred in law when he held that Statute of Limitation does not apply.

I have considered the arguments of counsel on this issue. The crux of the Appellants’ contention is that the lower court failed to consider the evidence adduced by the Appellants that the suit was statute barred even in the absence of concealed fraud on the Appellants as the land was developed. Heavy reliance was placed on the evidence of DW3, the wife of the 2nd Appellant that they farmed on the land for sometime before building house on it, and that the Respondent was visiting home from his base and would occasionally come with friends to take pepper soup she was selling. Further, learned counsel referred to the evidence of the 1st Appellant that when the Respondent came home in December, 1978, he called him and gave him the Sale Agreement with N200.00 while the Respondent thanked him and gave him N50.00. The question is, are these pieces of evidence sufficient to sustain a plea of Statute of Limitation? This will be considered.

The relevant Statute or Rules of Court in the resolution of this issue is Order 25 Rule 6 of the Rules of Abia State High Court (Civil Procedure) Rules, 2001 which provides for some matters to be specifically pleaded. Rules 6 of Order 25, has earlier being reproduced. Let me also add that it is a cardinal rule of pleadings that such specific matters as the Limitation Law must be expressly set out or pleaded in the Statement of Defence. Once such defence is not pleaded, the Defendant cannot be granted the protection of the law. Also paragraph 20c, 6b paragraph 13 of the Amended Statement of Defence are germane to this Issue under consideration. They provide as follows:
20c “The Defendant avers that the Plaintiff’s claim is statute barred and therefore incompetent…”
6b “The Plaintiff after exhausting the money from the sale of the land in dispute, over 25 years now woke up from his sleep to come and lay false claim to the said land.
Also paragraph 13 states as follows:
“Defendants denied paragraph 14 of the Plaintiff’s Amended Statement of Claim and aver that the Plaintiff never objected to nor challenged the sale until recently when he suddenly woke up from his slumber to promptly challenge the over 25 years transaction”
A careful examination of these paragraphs reveals that no specific Statute that bars the action was pleaded. No specific Limitation Law or Statute was pleaded and the Court cannot be left to speculate as to which particular Limitation Law bars the action. In other words, such defences should not be left to speculation or inference by the Court. The averment that the Plaintiff’s Claim is statute barred fell short of the requirements of the law and is incompetent, as it is bereft of due particulars or facts which could be relied upon to invoke the defences created by any Limitation Law to enable them prove with credible evidence that the action was statute barred. In fact, there is nowhere in the Pleadings of the Appellants and the evidence adduced that clearly or specifically stated or plead with due particulars or facts that the action was indeed statute barred. It does not specify the Statute of Limitation it is referring to which bars the action. In this respect, I agree with the argument of the Respondent’s Counsel that averments in those paragraphs did not give particulars which will assist the Court to decide the Statute of Limitation which applies nor does it give any condition precedent for the application of any particular law. It is a cardinal rule of Pleadings that such specific matters as Limitation Law must be expressly set out or pleaded in the Statement of Defence and once it is not pleaded, the Defendant cannot be granted protection of that law. See Ketu vs. Onikoro (Supra); Famuyiwa vs. Folawiyo (1972) 5 SC 112; Lana vs. University of Ibadan (Supra); Oyebaniji vs. Lawanson (Supra); See also Ibenwelu vs. Lawal (1971) NSCC Vol. 724 at 27; Akuneziri vs. Okenwa (2000) 4 NSCQR 278.

In the instant Appeal, the Appellant not only failed to plead any Limitation Statute fully with due particularity as required by law, they did not lead any evidence in proof of statute bar thereof. Since the Appellants are relying on the defence of Statute of Limitation, the onus is on them to prove by credible evidence when the cause of action accrued to the Respondent. They must lead evidence to prove the precise date when the cause of action arose and how the particular statute barred the action. See SBN Ltd vs. Pan Atlantic Shipping and Transport Agencies Ltd (1987) NSCC Vol. 18 (PT 1) 67 at 70. I agree with the Respondent’s Counsel that the pieces of evidence of the Appellants put together only show when and how they bought the land and from whom and at what use the land was put into and these are not evidence required to establish proof that the action is statute barred. See Nsiege vs. Mgbemena (Supra).

The evidence of DW3 that the Respondent was visiting and he would occasionally come in with friends to take pepper soup simpliciter is not evidence that the Respondent was aware of the sale transaction or that where he goes to take pepper soup with friends was his own share of his father’s property which was kept in trust for him by his brother. No knowledge therefore could be inferred on the part of the Respondent in the absence of evidence directly on the issue. There was also no evidence that during his coming home he was shown and knew of his own share of the land in dispute except upon his final return home from Kano in 1992 when he asked of his own share of his father’s property. I agree with the argument of the Respondent’s counsel that the evidence of DW3 heavily relied upon by the Appellants was quoted out of con as same was given to explain away how and when they bought the land and into what use the 2nd Appellant put the land into. They were not evidence that the suit is statute barred. It is the law that a party contending that a suit is statute barred has to plead the specific law that bars the action and go ahead to plead the incidents that prove that the action is statute barred in relation to that specific statute.

It is trite that a statute of limitation operates from the time cause of action accrued to the Plaintiff. Where however, the Plaintiff was in any particular disability and was therefore unaware or unable to exercise his legal right, the Court will be willing to consider such disability. The fact that the land in dispute was sold to the 2nd Appellant in 1978, does not make it the accrued date of action. The Respondent returned from Kano in 1992 and demanded of his property from the 1st Appellant. It is absolutely necessary when dealing with limitation law to determine the precise date upon which the cause of action arose because without this basic fact, it will be impossible to compute time. I am therefore at peace with the findings of the learned trial judge that:

“the Defendant did not set out the particulars of the legal defence. This offends rules of Pleadings…let me also mention that the Defendants also did not lead any specific evidence in proof of his evidence. This defence does not operate in vacuo for example, what barred this action was not stated.”

See page 170 lines 16 – 20 of the Records of Appeal. This findings is unimpeachable, I am therefore of the firm view that the Respondent’s claim is not caught by the Limitation Law. I accordingly resolve this Issue against the Appellants in favour of the Respondents.

Issue 2
In arguing this Issue, learned counsel for the Appellants argued that there is abundant evidence that the 2nd Appellants’ wife (DW3) built a restaurant/drinking parlor on the land in dispute and that the Respondent was visiting her beer parlor and drinking there. Counsel also stated that Respondent did not challenge the building on the land or the services going on there, thus acquiesced and gave the 2nd Appellant the impression that he was not challenging their presence on the land. He argued that the fact that the Respondent has been visiting the place and eating from the restaurant, gave the Appellants the impression that there was no dispute over the land and that the transaction was thoroughly concluded and that impression encourage the 2nd Appellant to build on the land and establish shops and restaurant and that the Respondent waited for over 25 years and that he is being caught by the doctrine of acquiescence, laches and standing by. The following cases were relied upon; Taiwo vs. Taiwo (1958) 3 FSC 82 at 82; Kaiyaje vs. Egunle (1994) 12 SC 55 at 65. He also submitted that the Respondent is guilty of laches by his conduct having waited for 25 years which gave the impression that he had waived his right to the property in dispute. The Court was urged to resolve the issue in favour of the Appellant.

In his response, learned counsel for the Respondent submitted that the doctrine of acquiescence, laches and standby are equitable doctrines and are subject to the general principles of equity, e.g. that he who goes to equity must go with clean hands or that he who wants equity must do equity. Learned counsel referred to the Sale Agreement dated 1st March, 1978, the document by which the 1st Appellant purported to have sold the land in dispute to the 2nd Appellant, whereas according to DW1, DW2, DW3 and DW4 testified that the land in dispute belongs to the Respondent, yet the 1st Appellant became the vendor. His view is that the possession of the land in dispute by the Appellants is fraudulent and argued that the law is clear that the defence of laches is not available to a trespasser who knowingly and unlawfully takes possession of another person’s land. The following cases were referred to; Oyebamiji vs. Lawansan (2008) 7 KLRC (PT 258) 1991; Okpalaoka vs. Umeh (1976) NSCC Vol. 10 519; Otogbolu vs. Okeluwa (1981) NSCC Vol. 12 275 at 288; and Nwakobu vs. Nzekum (1961) 2 ALL NLR 445. Learned counsel also referred to the case of Kayode vs. Odutola (2001) 11 NWLR (PT 725) 659 wherein the Apex Court listed 4 four ingredients of a successful plea of acquiescence, laches and standing by and that all elements must exist for the Court to deem fraud.

It is his view that the Appellant fraudulently went into possession of the Respondent’s land with the knowledge that the land was not his own and sold same to the buyer who also knew that the seller had no title to pass to him. It is also the view of counsel that in 1992 when the Respondent returned home and discovered that his land was fraudulently trespassed into, he instituted a flurry of arbitration activities and finally filed the suit in 2004 and that the Respondent was not guilty of any delay going by the principles laid down in Kayode vs. Odutola (Supra). That the Respondent is not caught by the equitable doctrine of acquiescence, laches and standing by. He also cited Obijuru vs. Ozims (1985) NSCC Vol. 10 (PT.1) 430; and Ibenwelu vs. Lawal (1971) NSCC Vol. 7, 29, to further submit that the plea of the Appellants in paragraph 21 of their Amended Statement of Defence that the Appellants will raise all legal and equitable defences open to them will not avail them as the law is that all equitable defences must be pleaded fully with due particularities.

It is also argued that a trespasser who is aware of the defect in title of the vendor and goes into possession is on his own risk. He cannot in his defence rely on the equitable defence of laches. The following cases were relied upon: Nwakobi vs. Nzekwu (1961) 2 ALL NLR 445; Okpaloka vs. Umeh (1976) NSCC Vol. 10 519. Learned Counsel argued that the Respondent is not guilty of standing by. The Court was urged to resolve this issue against the Appellant.

In his reply, learned counsel for the Appellants submitted that the Respondent being the younger brother of the 1st Appellant gave the 1st Appellant the land to sell for him because he was in far away Kano. He argued that the Respondent under Cross Examination stated that he transferred all responsibilities and the right to represent him to his elder brother, the 1st Appellant. He also stated that the 1st Appellant said that in December 1978 when the Respondent came home, he came to his house and gave the Agreement and the sum of N200 and he thanked him and gave him N50, showed that the Respondent accepted the sale and the evidence was not challenged. He urged the Court to resolve the issue in favour of the Appellants.

I have considered the submission of learned counsel on this issue vis-a-vis the evidence adduced and the law. The doctrine of acquiescence, laches and standing by are equable doctrines and are subject to the general principles of equity, that is, he who comes to equity must come with clean hands. There is abundant evidence before the lower court that the property in dispute was the Respondent’s own share of the estate of their father which he entrusted to his senior brother, the 1st Appellant to keep for him in-trust as he was then living in Kano. There is also the evidence that the Respondent visits home at the end of every year and he also goes to the restaurant of the DW3, and wife of the 2nd Appellant to take pepper soup with his friends. The land where the restaurant and other shops were built is the land in dispute claimed by the Respondent as his share of his father’s property.

However, there is also the evidence that at no time was the Respondent’s consent sought to dispose of the property and the alleged letter given to the 1st Appellant to dispose of the property of the Respondent was not tendered in Court. The Appellants alleged that the letter was lost. The Respondent on the other hand, vehemently denied ever writing such letter to the 1st Respondent. He testified that even though he comes home every year, he was not aware that that his property was sold until in 1992 when he finally returned home and asked of his land to settle down. The evidence adduced by the Respondent when put on the imaginary scale of justice weigh heavier that the Respondent was completely unaware of the sale of his land to the 2nd Appellant. The fact of coming home every year is not sufficient to infer such knowledge on the part of the Respondent. If he was aware as the Appellants claimed, would he have gone back to his brother the 1st Appellant to demand for the same land? I think not, and if this were so, the evidence adduced by the Appellant would weigh heavier than that would have been adduced by the Respondent. In the instant case, the Appellants’ witnesses testified that the land in dispute belonged to the Respondent and he came back home in 1992.

In the circumstances, the question that may be asked is whether the equitable defences of acquiescence, laches and standing by avail the Appellants? I think not. The Apex Court in a plethora of judicial pronouncements defined what acquiescence and delay means. To be guilty of acquiescence in law, the Plaintiff must be guilty of more than delay in taking action. It must be proved that the Plaintiff is guilty of such act or acts which encouraged the Defendant to regard the property as his own. Thus, to be guilty of acquiescence, laches or standing by, the Plaintiff must have been guilty of a conduct that could be calculated to give the impression that he had agreed to waive his right or be involved in such other conduct that will make it inequitable to enforce his right. In the case of Kayode vs. Odutola (2001) 11 NWLR (PT 725) 659, the Supreme Court held that, the equitable defences of laches involve a loss of time and substantial delay in asserting the right being claimed.

It is the law that a trespasser who is aware of the defect in title of the vendor and goes into possession is on his own risk. He cannot in his defence against the true owner raise and rely on the equitable defence of laches. See Nwakobi vs. Nzekwu (1961) 2 ALL NLR 445. On the basis of the foregoing and by the principles laid down in the case of Kayode vs. Odutola (Supra) the Appellants have failed woefully in their plea of acquiescence, laches and standing by.

The Respondent is not in any way caught by the equitable plea of acquiescence, laches and standing by. I thereof resolve this Issue against the Appellant.

Finally, I hold that this Appeal lacks merit and it is hereby dismissed. The Judgment of the lower court delivered on the 30th day of June, 2008 is hereby affirmed. There shall be N30,000.00 cost to the Respondent against the Appellants.

PRONOUNCEMENT: Honourable Justice John I. Okoro, J.C.A has been elevated to the Supreme Court and cannot make contribution on this Judgment.

PHILOMENA MBUA EKPE, J.C.A.: I have had the opportunity of reading before now the lead Judgment just delivered by my learned brother UWANI MUSA ABBA AJI, (PJ) J.C.A. His Lordship has dealt comprehensively with all the issues raised herein, I am in total agreement with his reasoning and conclusions that this Appeal is devoid of merit and ought to be dismissed. I too dismiss it accordingly. The Judgment of the lower court delivered on the 30th day of June 2008 is hereby affirmed. I abide by my Lord’s order as to costs.

Appearances

C. A. Kalunta, Esq.For Appellant

AND

A. Ogbonna, Esq.For Respondent