ALEXANDER BABATUNDE FAKAYODE v. ADENIRAN ADENIYI & ANOR (2016)

ALEXANDER BABATUNDE FAKAYODE v. ADENIRAN ADENIYI & ANOR

(2016)LCN/8207(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of February, 2016

CA/I/199/2011

RATIO

EVIDENCE: THE EFFECT OF INCONSISTENCIES IN EVIDENCE

The evidence of the 1st defendant is along the line of the above averments. The general rule is that where a party’s pleading and/or evidence on a fact as well as his evidence are full of inconsistencies, the Court will ignore the evidence and the pleadings. However, there is an exception and is stated by the Supreme Court in BASIL v. FAJEBE (2001) 11 NWLR (Pt. 725) page 592 at 611 (B-C) as follows: “where there is direct and specific evidence on one of two inconsistent averments and there is none on the other, it will be wrong for the Court to ignore such direct and specific evidence and proceed to a finding of fact in regard to the alternative averment on which there has been no such evidence.” per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

EQUITABLE DEFENCES: WHEN THE EQUITABLE DEFENCE OF ACQUIESCENCE WILL APPLY

On when either of the equitable defences of acquiescence and laches will apply, the Supreme Court in Kayode v. Odutola (supra) at pages 664 and 665 and 8 held as follows: Although there may be acquiescence without undue delay, acquiescence which will deprive a man of his legal rights must amount to fraud. Thus, a man is not to be deprived of his legal rights unless he acted in such a way as would make it fraudulent for him to set up those rights. In the instant case, no act can be inferred from the respondent’s conduct that could give rise to the conclusion that he behaved fraudulently or that he willfully remained passive when he became aware of the appellant’s acts of trespass on the land in dispute.” See UGWUNZE v. ADELELE (supra) at 177 (D-F) where the Court of Appeal held as follows:-“It is however, from the evidence before the trial Court that the plaintiffs/respondents have virtually abandoned the land for over twenty years from 1973 when it was bought to 1996 when they filed their action. Even the period of two years from the time they claimed to be aware of the building erected by the defendant/appellant in 1994 to 1996, when the suit was filed does not indicate any vigilance on the part of the plaintiffs/respondents. Having seen the house built by the defendant/appellant coupled with the physical residence of the appellant on the land, it was an act of acquiescence for the plaintiffs/respondents to waste another two years before filing an action in Court.” per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

THE DEFENCE OF LACHES AND ACQUIESCENCE: HOW IS THE DEFENCE OF LACHES AND ACQUIESCENCE DESTROYED

The defence of laches and acquiescence is destroyed by the guilty knowledge of the purchaser who had every course to doubt the title of the vendor but failed to take the necessary caution. Loss of time is not an outright defence. per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

EQUITABLE DOCTRINE OF ACQUIESCENE AND LACHES: WHETHER THE EQUITABLE DOCTRINE OF ACQUIESCENCE AND LACHES ARE APPLIED ON THE SAME PRINCIPLES OF EQUITY AIDING THE DILIGENT

The equitable doctrine of acquiescence and laches are applied on the same principles of equity aiding the diligent. He who comes to equity must come with clean hands. per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

THE PLEA OF ACQUIESCENE AND LACHES: THE INGREDIENTS OF THE PLEA OF ACQUIESCENCE AND LACHES

In the case of KAYODE v. ODUTOLA (2001) 11 NWLR (Pt. 725) PAGE 659 the Apex Court set out the ingredients of the plea of acquiescence and laches. These are: The equitable defences of acquiescence and laches involve a loss of time and substantial delay in asserting the right being claimed. Either of the defences will only apply if:-

(a) There is evidence of an agreement by the plaintiff to give up or release his right;

(b) The delay to enforce the right has resulted in the destruction or loss of evidence by which the claim might be rebutted;

(c) The claim is to a business for the plaintiff for which he should not be allowed to adopt the attitude of wait and see the business if it would prosper;

(d) The plaintiff has not done anything as to induce the defendant to alter his position on the reasonable belief that the claim has been released or abandoned. per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

LAND LAW: CERTIFICATE OF OCCUPANCY: WHETHER A CERTIFICATE OF OCCUPANCY RAISES THE PRESUMPTION THAT THE HOLDER IS THE OWNER IN EXCLUSIVE POSSESSION OF LAND

In the case of GRACE MADU v. DR. BETRAM MADU 2008 6 NWLR (Pt. 1083), 296, the Apex Court, citing the case of OSAZUWA v. OJO (1999) 13 NWLR (Pt. 634) 286; SHOGO v. ADEBAYO (2000) 14 NWLR (Pt. 686) 121 and EZEANAN v. ATTA (2004) 4 MJSC 1, held that: “… a certificate of Occupancy properly issued as in the instant case where there is no dispute that the document was properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land. The Certificate also raises the presumption that at the time it was issued, there was not in existence a customary owner whose title had not been revoked. It should however , be noted that the presumption is rebuttable because if it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of occupancy in which case the Certificate of Occupancy will stand revoked by the Court.” per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

TRUST: RESULTING TRUST; CIRCUMSTANCES WHEN RESULTING TRUST ARISES

Also in the well-known case of WESTDEUTSCHE LANDESBANK GIROZENTRALE v. ISLINGTON LONDON BOROUGH COUNCIL (1996) 2 AER 961, Lord Browne-Wilkinson sitting in the House of Lords, Identified two sets of circumstances when a “RESULTING TRUST” arises; at page 990 he reasoned:- “(a) Where A makes a voluntary payment to or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B; the money or property is held on trust for A (if he is a sole provider of the money) or in the case of a joint purchase by A and B, in shares proportionate to their contributions. (b) Where A transfers property to B on express trusts, but the trusts declared do not exhaust the whole beneficial interest.” per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

COMMERCIAL LAW: AGENCY: HOW THE RELATIONSHIP OF PRINCIPAL AND AGENT MAY ARISE

In the case of VULCAN GAS LIMITED v. GESELLSCHAFT FUR INDUSTRIES GASVERWERTUNG A.G. (G.I.V.) 2001 9 NWLR (Pt. 719) 610 it was stated by the Apex Court per Iguh, JSC that: “Usually, the relationship of principal and agent may arise in any one of five ways namely-: 1. By express appointment, whether orally or by letter of appointment, or indeed by a power of attorney. Under this heading, no formality such as writing is required for the valid appointment of an agent except for instance where the authority of the agent is to execute a deed on behalf of a principal, in which case the agency itself must be by deed”. per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

LAND LAW: TITLE TO LAND; WHETHER A PERSON WHO DOES NOT HAVE EXCLUSIVE LEGAL RIGHT TO A PROPERTY CAN SELL IT

A person who does not have exclusive legal right to a property cannot sell it. In the case of ERINOLA v. OWOKONIRAN (1965) NMLR 479 @ 493 it was stated per IDIGBE, JSC that:- “in order to transfer legal title under English law by purchase, there must be a valid sale payment of money accompanied by acknowledgment of receipt and execution of a deed of conveyance in favour of the purchaser.” per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

JUSTICES

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

ALEXANDER BABATUNDE FAKAYODE – Appellant(s)

AND

1. ADENIRAN ADENIYI & ANOR

2. MARGARET ADESOYE ADENIYI – Respondent(s)

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): The Appellant has appealed against the decision of the Oyo State High Court of Justice Coram Hon. Justice M. O. Bolaji-Yusuf (J) (as he then was) sitting in Ibadan. The Judgment was delivered on 27th January, 2011 and is at pages 124 to 151 of the records.

A brief summary of the suit which led to this appeal is as follows:

The Appellant’s amended Writ of Summons upon which trial proceeded was dated 7/11/2005. The Respondents’ Statement of Defence was dated 6/3/2006 and filed on 8/3/2006. The prayers of the appellant are contained in paragraph 17 of the amended Statement of Claim at page 31 of the Record of Appeal and are as follows:-

(1) The sum of N10,000,000.00 (Ten million Naira) representing exemplary and aggravated damages for trespass on and damage to the Plaintiff’s land at No. 19 Akinsenwa Street, New Bodija, Ibadan Oyo State of Nigeria (which land is also known as Plot No. “DZ” in Block XX housing Corporation Bodija/Extension, Ibadan Oyo State) by the defendants which acts of trespass commenced in or about 1996.

(2) An order that the

Defendant do forth with pull down and remove all their illegal structure and buildings built on the said land and vacate the same forth with, and

(3) An order of perpetual injunction to restrain the defendants whether by themselves or by their servants or agent or any other person claiming through them or otherwise however from thereafter further trespassing on and using the Plaintiff’s land at 19 Akinsenwa Street, New Bodija, Ibadan Oyo State of Nigeria.

On the other hand, the Respondent’s 29 paragraph Statement of Defence is contained at pages 24 to 27 of the Records of Appeal.

The Appellant was claimant at the High Court while the Respondent were the Defendants. They shall each be referred to simply as the Appellant and the Respondents. The record for this appeal was transmitted to this Court on the 26/08/11.

At the trial of this suit as reflected in the record for this appeal, the Appellant testified personally and tendered 4 Exhibits marked as Exhibit A, B-B8, C and D. Exhibit A, B-B8, C were tendered during his evidence-in-chief while Exhibit D was tendered under cross examination.

The 1st Respondent testified on behalf of the

Respondents and called one other witness. He tendered Exhibits E-E1 and Exhibit F-F6 in support of their case. (See pages 37-49 of the record).

The allegations of the Appellant against the Respondents border on a claim in trespass against the Respondents whom the Appellant claimed encroached on the property of his late mother Mrs. Julianah Fakayode. The Respondents on their part denied the allegation of trespass on the ground that they came into possession of the disputed property legally by way of transfer from Hon. Justice E. O. Fakayode who claimed to be the owner of the property with the mother of the Appellant being his trustee in the title of the property. The Respondents also raised the defence of laches and acquiescence in paragraph 22 of the statement of defence. (page 26 of the record).

When the appeal was called up for hearing on the 19/01/16, the Respondents drew the attention of the Court to the Preliminary Objection they had raised and argued at page 2 of the Respondents’ brief of argument and which was responded to by the Appellant in his reply brief.

The preliminary objection is at page 2 paragraph 4.0 4.05 of

Respondent’s brief and it is as follows:-

PRELIMINARY OBJECTION TO THE COMPETENCE OF ISSUES 1 AND 2 RAISED BY THE APPELLANT PURSUANT TO ORDER 10 RULE 1

It is the submission of the learned Counsel for the Respondent:

” That it is inappropriate for a party to distil two (2) issues from a single ground of appeal as done by the Appellant in this suit. That a cursory look at the argument of the Appellant on issues 1 & 2 of the brief particularly at paragraphs 4.1.1 and 4.02 line 1, the Appellant states thus: “This issue follows from grounds 2, 3 and 5 of the amended Notice of Appeal.” Issue 2 is also from ground 3. That the proliferation of ground 3 on Issues 1 and 2 shows that the Appellant has distilled two separate issues from a single Ground of Appeal.

That the procedural error of distilling 2 issues from one ground of Appeal is not only bad but has affected the competence of the 2 issues so distilled. In other words, a party cannot formulate 2 issues on the same ground as done by the Appellant in this case. See IBE v. IBE (2008) ALL FWLR (Pt. 405) 1719 @ 1725 A-C. and YADIS NIG. LTD. v. G.N.I.C. LTD (2007) ALL FWLR 1348

@ 1374-1375.”

Urges this Court to strike out issues 1 and 2 formulated from ground 3 of the notice of appeal for being incompetent.

In response, the learned Counsel to the Appellant raised two points to wit:

That the procedure adopted is wrong and falls contrary to provision of Order 10 Rules 1 of the 2011 Rule of this Court. That the Respondents did not put the Appellant on notice of their preliminary objection as contemplated by the provisions of the Rules of the Court of Appeal 2011.

Submit that the provisions of the Rules of Court are to be obeyed and not to be flouted. That the effect of the Respondents failing to comply, with the provision of the Rules of the Court is that the Court will decline to hear the objection. Submits that they did not seek the leave of the Court prior to it. Submits that the preliminary objection is incompetent

It is further the submission of the Appellant that the objection is misplaced. That the submission of the Respondents as canvassed in their Respondents’ brief merely seeks to confuse this Court.

Maintains that issues of law cannot be made an adjunct to an omnibus ground of appeal and argues

that issues one in the appellant’s brief is not drawn from ground 3 alone, that the issue is predominantly on ground one of the amended notice of appeal filed on the 14th of April, 2014 being an issue of law and that issue one merely refers to ground 3 as an adjunct to ground one. It is therefore submitted that such instance could not be regarded as proliferating issues on one ground of appeal alone.

The learned counsel argues further that the principle of law on proliferation of issues entails formulating more issues than grounds of appeal or formulating two or more issues from a sole ground of appeal. However, such is not the case as constituted. The amended notice of appeal filed by the appellant contains 5 grounds of appeal whereas only three issues were distilled from all the grounds stated in the amended notice of appeal.

Furthermore that issue two is distilled substantially from grounds 2 and 5 in the amended notice of appeal. Ground 3 being an omnibus ground is merely an adjunct upon which no specific issue can be based as held in a long line of cases. Refers to UMANA v. ALLAH (2004) 7 NWLR (Pt. 871) pg. 63 @ 87-88, Refers BHOJSUOS v. DANIEL

KALIO (2006) 5 NWLR (Pt. 973) pg. 330 @ 348, SENATOR GODWIN & ANOR v. IKEDI GODWIN OHAKIM & ANOR (2009) LPELR 4206 (CA).

The purport of filing a motion on Notice is to put the Appellant on Notice, as the name of the motion suggests. It would be too technical to require that a Preliminary Objection must be filed by way of a motion or Notice where one has been incorporated in the brief. On the issue of time, the Appellant has even more time to respond to the Preliminary Objection when it is incorporated and argued in the brief than when it is filed separately within five days to the hearing of the appeal.

In UMANA v. ALLAH 2004 7 NWLR (Pt. 871) page 63 @ 87-88, the Apex Court held:

“An omnibus ground of appeal is a complaint against the totality of evidence adduced before the Court and not a complaint against a finding of fact on a specific issue or document which must be raised by a substantive ground of appeal. (See also Opara v. D.S. (Nig) Ltd. (2006) 15 NWLR (Pt. 1002) 342 at 363)

In Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129 at 139-140 it was held that where the trial Court makes a finding of fact on a specific issue before it,

such an issue should be raised as a substantive ground of appeal by the appellant who is challenging the finding of fact and it cannot be covered under the omnibus ground of appeal.”

None of these authorities says that an omnibus ground can be tagged along other grounds upon which to formulate issues. An issue formulated on an omnibus ground is incompetent.

The issues must each be tied to the grounds of appeal – were they Any issue raised not tied to a ground of appeal is deemed abandoned and must be struck out.

Any ground which does not birth an issue which is argued is deemed abandoned. It is misleading and adventurous to argue that an omnibus ground is one which can be tagged along as an adjunct to every issue formulated in an appeal.

The Supreme Court has held that an issue may be distilled from one or more grounds of appeal, but it is wrong for a party to formulate two or more issues from one ground of appeal. That would amount to proliferation of issues from a single ground of appeal – See STABILINI VISIBAI NIG. LTD v. SANDERTON VENTURES LTD (2011) 8 NWLR (Pt. 2), NONYE v. ANYIECHIE (2000) 1 NWLR (Pt. 639) 66.

The argument of the

learned Counsel for the Appellant that ground three is an omnibus ground which should be exempted from the principle of non-proliferation is misconceived. Issues were proliferated in that issues one and two were partly extracted from one ground of appeal. The preliminary Objection is upheld and issues one and two formulated partially from ground 3 are hereby struck out.

Howbeit, the appeal can be effectively determined on the sole issue formulated by the Respondent which can accommodate issue three of the Appellant. The appeal shall be determined on issue three formulated by the Appellant.

Issue three of the Appellant addresses the issue of laches and acquiescence, the equitable doctrine upon which the learned trial Judge dismissed the claim of the Appellant. The decision of the learned trial Judge is challenged in ground 4 of the appeal. On the other hand, the sole issue formulated for the Respondents is a wide, wild one to wit:

“Whether considering the state of pleadings and evidence before the Court, the trial Court was wrong to have dismissed the suit.”

I find the decision of the learned trial Judge very comprehensive in that the

respective submissions of the two sides were well rehashed. I shall therefore use the decision of the learned trial Judge as the hanger upon which to determine this issue.

In other words, I need not separately summarize the arguments of the learned Counsel.

Upon the respective submission of the learned Counsel for the parties, the learned trial Judge found and held that ‘Exhibits C’ was never served on the Respondents. His Lordship accordingly concluded that the Appellant and his late mother slept on their right or stood by and dishonestly encouraged the Respondents to expend their resources. That it was too late in the day to lay claims on the land after the demise of the Hon. Justice Fakayode who had sold the land. In other words, that the Appellant was caught by the operation of equitable doctrine of Acquiescence & Laches.

In arriving at this decision the learned trial Judge purported to rely on the testimonies of the witnesses and the submissions of the respective learned Counsel of the parties. His Lordship proceeded thus:

“I have considered the entire evidence led by both parties in this case, it is my view and I so hold that the

attitude and conduct of Late Mrs. Fakayode and the claimant after finding the defendants on the land in dispute is not consistent with the attitude of an owner of a land whose land is being occupied or trespassed upon and whose building of the land was demolished. The evidence of the 1st defendant is that they moved on the land and started construction in September, 1994. The construction of the building was completed in March 1995 and they moved in April, 1995. That means as at February or March 1996 when the claimant said he and his deceased mother visited the land, the defendants were already living on a completed building on the property. The plaintiff said they reported their finding to the family which included Late Justice Fakayode, his father. He did not tell this Court the reaction of his father but nothing happened after the discussion. Late Mrs. Fakayode and the claimant did not take any action, they left the defendants to enjoy their property.”

“While the Court is not entitled to engage in speculations, the Court is entitled to make findings and draw conclusions based on the evidence and conduct of the parties before it. The only conclusion am

able to draw on failure of the claimant and his mother to take action is that Late Justice Fakayode told them that as the owner of the property, he has sold it to the defendants. It can also safely be concluded that Late Mrs. Fakayode knew that though the property was acquired in her name, she is not the owner and would not claim what did not belong to her. The claimant said his mother planted crops on the land and that when they visited the land in 1996, they discovered that there was an invasion of the land because the crops his mother planted on the land were scattered and part of the structure she constructed on the land had been pulled down. Nothing can be farther from the truth”

The learned trial Judge placed a high premium on the denial of the Respondents of having received “Exhibit C”.

The letter Exhibit ‘C’ in paragraph 27 of their statement of defence where they pleaded as follows;

“27, The Defendants deny the receipt of the letter dated the 13th day of December, 1999 and would contend that neither Mrs. Juliana Fakayode (deceased) nor the plaintiff had ever made any claim to the land in dispute except by this action brought many

years after the demise of Honourable Justice. E. O. Fakayode; the agent.”

“….There is no scintilla of evidence to show that Exhibit ‘C’ was ever received by the defendants. 1st defendant said he never had any problem with the property until he received the summons in this case. He was never cross-examined on that piece of evidence which means the Plaintiff did not take any action from March or April; 1996 until February 2002 when this case was instituted, a period of six years. It is my view and I so hold that though the defendant did not specifically plead fraud, but from the entire evidence before this Court particularly, the claimant’s evidence, (now standing in place of his mother). There is no better way of describing the conduct of the claimant and his mother in this case than to say it is fraudulent and unconscionable. I am reinforced in my view by the fact that the claimant is not able to produce a single receipt of payment of ground rents before 2002. It is only after the institution of this case on 11th February 2002 that claimant’s mother suddenly remembered that she had to pay ground rents. It is obvious those payments were made in

anticipation of this case and in a desperate bit to claim the property which they could not do when the claimant’s father was alive.”

The above findings of the learned trial Judge is not supported by the Exhibits tendered before the trial Court. From the records in the Exhibits not one receipt was made in the name of Justice Fakayode. The Exhibits are:-

Exhibit A- Stamped of Oyo State Registry of Deeds Ibadan.

Signed by acting Deeds Registrar,

Lands Registry, Ibadan, dated 9th December, 1999.

Has on it Receipt No. RVJ 262686 of 8/12/99 for N1,700.00.

The deed made in the name of Mrs. Juliana S. Fakayode SWB/278, Imale Falafia Street Oke-Ado Ibadan.

Has several other receipts made in the name of Mrs. Juliana Fakayode. Exhibit D & Exhibit E & E1 are the only documents which are alien among the documents in that they bear the name of the Hon. Justice E. O. Fakayode (Retired Chief Judge of Oyo State dated 11/08/94. Upon the authority of BASIL v. FAJEBE (2001) 11 NWLR (Pt. 725) p.592 @ 611, the learned trial Judge found for Justice Fakayode.

This is a wrong application of the authority of BASIL v. FAJEBE (supra) A man

cannot be allowed to take advantage of his own wrong. Exhibit D is not the type of Exhibit referred to in that decision of the Apex Court.

Exhibit E & E1 are photocopies of cheques made to Justice Emmanuel Fakayode.

No nexus whatsoever in law between the title documents and the act of selling the property.

The Hon. Justice Fakayode produced no evidence of authority to sell the said property yet the purchaser went ahead to pay for the property. The sale was never legally executed as the real owner never executed the deed, yet the purchaser went ahead to develop the property; that was gullible. Though he is the owner of the property, he had to obtain her authority to sell the property. In one breadth he said he is the owner of the property though he obtained the property in the name of his wife, in another breadth, he said he was selling the property on the authority of his wife or as her agent and based on the apparent and ostensible authority of Late Mrs. Fakayode for whom her husband was acting, the defendants purchased the property. Thus there is some force in the submission of the learned counsel for the claimant that the pleadings and

the evidence of the 1st defendant are inconsistent.

The facts pleaded in paragraph 18-22 of the statement of defence provides the particulars upon which the the defences of laches and acquiescence are hinged. Those paragraphs read:

“18. The defendants aver that in the year 1994 they commenced the building of a structure on the land which in fact was a modification and improvement of the building structure met on the land and they were, never challenged by Mrs. Juliana S. Fakayode (deceased).

19. The defendants say that whilst they were putting up their building on the land, the Honorable Justice E. O. Fakayode (deceased) used to visit them and offered very useful suggestions on the erection of the building structure.

20. The defendants will lead evidence to show that the house they built on the land in dispute was completed and had been inhabited by them since the year 1995.

21. The defendants will lead evidence to show that all times during the construction of their building on the land, Mrs. Juliana S. Fakayode never showed up to query or repudiate her husband/agent’s authority to sell the land in dispute to the defendants.

22.

The defendants will at the hearing rely on relevant equitable principles particularly the principle of laches and acquiescence in resisting the plaintiff’s claims.”

“where there is direct and specific evidence on one of two inconsistent averments and there is none on the other, it will be wrong for the Court to ignore such direct and specific evidence and proceed to a finding of fact in regard to the alternative averment on which there has been no such evidence.”

Applying the above authority to this case, the position of Late Justice Fakayode is clearly stated in Exhibit ‘D’ the handwritten receipt issued by him acknowledging receipt of the price of the land in dispute. He clearly stated that the land, plot D2, Ibrahim Taiwo is his property, but the

facts do not support this claim. The learned trial Judge was much in haste to conclude the matter and therefore made these conjecture out of his imagination:-

“Having considered the entire evidence before me, it is my view and I so hold that the claimant and his mother merely want to reap where they did not sow if not why did they fail to confront the defendants when their father and husband was alive, so that the defendants could also confront him and he would be in a position to confirm or rebut their claim. The defendants denied the receipt of … Alive because they knew the property belonged to him. The claimant himself confirmed that his father is a very disciplined man and would not sell his mother’s property as his own. He said his father did not sell the property in dispute to the defendants. Exhibit ‘D’ which he confirmed is his father’s handwriting and signature confirmed that his father sold the property because it is his property. They did not challenge him. The defendant and DW2 said the defendants moved into the building in 1995, Exhibits ‘E-F6’ (Water Corporation of Oyo State bill and receipt) clearly confirm the fact that the defendants

were already on the land in 1995. It is then obvious that the plaintiff did not tell the truth when he said they found crops scattered and part of the building demolished in 1996; If he and his mother ever visited the land in 1996, then the truth is that they met the defendants building on the land but they did not do anything. They could not do anything because they knew the property belonged to Late Justice Fakayode.

It is my view and I so hold that even if the claimant’s or his mother did not encourage the defendants to expend money on the land and did not know their present until February or March, 1996, having failed to challenge their father who sold the property as his own while he was alive and having failed to challenge the defendants for more than six years after they found them on the land, equity will not allow them to take advantage of their own wrong doing. It is my view and I so hold that even if Mrs. Fakayode was the owner of the property, her claim is caught by the doctrine of laches and acquiescence. On when either of the equitable defences of acquiescence and laches will apply, the Supreme Court in Kayode v. Odutola (supra) at pages 664

and 665 and 8 held as follows:

Although there may be acquiescence without undue delay, acquiescence which will deprive a man of his legal rights must amount to fraud. Thus, a man is not to be deprived of his legal rights unless he acted in such a way as would make it fraudulent for him to set up those rights. In the instant case, no act can be inferred from the respondent’s conduct that could give rise to the conclusion that he behaved fraudulently or that he willfully remained passive when he became aware of the appellant’s acts of trespass on the land in dispute.”

See UGWUNZE v. ADELELE (supra) at 177 (D-F) where the Court of Appeal held as follows:-

“It is however, from the evidence before the trial Court that the plaintiffs/respondents have virtually abandoned the land for over twenty years from 1973 when it was bought to 1996 when they filed their action. Even the period of two years from the time they claimed to be aware of the building erected by the defendant/appellant in 1994 to 1996, when the suit was filed does not indicate any vigilance on the part of the plaintiffs/respondents. Having seen the house built by the defendant/appellant

coupled with the physical residence of the appellant on the land, it was an act of acquiescence for the plaintiffs/respondents to waste another two years before filing an action in Court.”

In the instant case, there is a period of six years.

The learned trial Judge surmised as follows:-

(1) That Exhibit ‘A’ (Deed of Sublease) is a prima facie evidence of ownership of the land by Mrs. Fakayode.

(2) That Exhibit ‘D’ is a rebuttal evidence showing that though Exhibit ‘A’ was made in Mrs. Fakayode’s name, the property did not belong to her.

(3) Exhibit ‘D’ the authenticity and genuiness of which was confirmed by the plaintiff clearly stated that the property belong to Late Honourable Justice Fakayode.

Have the Respondents acquired an equitable title to the land by the operation of the equitable doctrine of acquiescence and laches?

The Supreme Court has over the years remained consistent on the ingredients requisite for the invocation of the equitable doctrine of acquiescence and laches.?

From clear finding of the learned trial Judge which Judgment has been extensively reproduced in this Judgment, fraud as an essential element

of standing by, has not been established by the Respondent. Indeed, it was not even raised by the Respondent. It was rather, the Judge swimming in the arena, who raised the issue.

The evidence before the High Court was such that guilty knowledge can be imputed to the purchaser rather than to the Appellant. The principle in KAYODE’S CASE bears me out on this.

The equitable doctrine of acquiescence and laches are applied on the same principles of equity aiding the diligent. He who comes to equity must come with clean hands.

In the case of KAYODE v. ODUTOLA (2001) 11 NWLR (Pt. 725) PAGE 659 the Apex Court set out the ingredients of the plea of acquiescence and laches. These are:

The equitable defences of acquiescence and laches involve a loss of time and substantial delay in

asserting the right being claimed. Either of the defences will only apply if:-

(a) There is evidence of an agreement by the plaintiff to give up or release his right;

(b) The delay to enforce the right has resulted in the destruction or loss of evidence by which the claim might be rebutted;

(c) The claim is to a business for the plaintiff for which he should not be allowed to adopt the attitude of wait and see the business if it would prosper;

(d) The plaintiff has not done anything as to induce the defendant to alter his position on the reasonable belief that the claim has been released or abandoned.

The learned trial Judge erred in law in assuming the responsibility “to make findings and draw conclusions” in the case. The Court is circumcised only to draw inferences from the facts placed before it. It must not embark on further enquiry in order to fill in the gap for a party.

No evidence was placed before the Court to enable it draw the conclusion that Mrs. Fakoyode knew that the property did not belong to her. On the contrary the titled documents bear Mrs. Fakayode’s name and no other official document was produced to

contradict her title. Not even ground rates were shown to have been paid by Hon. Justice Fakayode on the said property.

What about the fact that both mother and son were not ordinarily resident in Nigeria? Can they in good conscience be said to have failed to take action? Why did the learned trial Judge not think that their silence was based on the late Justice E. O. Fakayode’s apology and undertaking to remedy the situation. This discloses the danger of speculative conclusion by the Bench. We must always stay with the facts. In this appeal, the hard facts are that the late Hon. Justice Fakayode, purporting to be an agent sold the property of his wife without her legal authority. The Respondent’s in their ambition to own property took a gamble by ignoring the true situation. They threw their money into the deep pit when they believed the story not worthy of belief. No evidence was placed before the learned trial Judge to convince his lordship that Mrs Juliana Fakayode was so ill that she could not communicate. No evidence was placed before the Court to enable the Court draw the conclusion that the property was acquired as a Resulting Trust in the name of

Mrs. Juliana Fakayode. In the case of GRACE MADU v. DR. BETRAM MADU 2008 6 NWLR (Pt. 1083), 296, the Apex Court, citing the case of OSAZUWA v. OJO (1999) 13 NWLR (Pt. 634) 286; SHOGO v. ADEBAYO (2000) 14 NWLR (Pt. 686) 121 and EZEANAN v. ATTA (2004) 4 MJSC 1, held that:

“… a certificate of Occupancy properly issued as in the instant case where there is no dispute that the document was properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land. The Certificate also raises the presumption that at the time it was issued, there was not in existence a customary owner whose title had not been revoked. It should however , be noted that the presumption is rebuttable because if it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of occupancy in which case the Certificate of Occupancy will stand revoked by the Court.”

TRUST” arises; at page 990 he reasoned:-

“(a) Where A makes a voluntary payment to or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B; the money or property is held on trust for A (if he is a sole provider of the money) or in the case of a joint purchase by A and B, in shares proportionate to their contributions.

(b) Where A transfers property to B on express trusts, but the trusts declared do not exhaust the whole beneficial interest.”

Going by the above decision of the House of Lords by which I am persuaded, both types of “Resulting Trust” are based solely on the presumed intention of the settler.”

There was no evidence to show that Mrs. Juliana, Fakayode was not entitled to own the property. What then is the hanger upon which the oral evidence of DW2, a person interested can rely upon? The questions are raised in the light of the finding of the learned trial Judge that the Appellant had established prima facie that the title documents are in the name of Mrs. J. Fakayode.

That Mrs. Fakayode was not

seen at all affirms the evidence of the claimant that Mrs. Fakayode ordinarily lived abroad. Justice Fakayode spoke from both sides of the mouth and this should have made the purchaser cautious in jumping at the offer to buy a property from a person who was not the legal owner and who had produced no single evidence of an authority given to him to dispose of the property. The legal doctrines that come to play here-caveat emptor- let the buyer beware and nemo dat quod non habet-you cannot give that which you do not have.

Although Hon. Justice Fakayode produced the original title document, that fact did not thereby repose legal title in him. The learned Counsel to the Respondents (as Defendants) cited the case of DABOR v. ABDULLAHI (2005) 7 NWLR (Pt. 523) 181 @ 187 menacingly at the learned trial Judge. The principle therein is that the production of documents of title is one of the recognised methods of proving title to land but such a document of title must be admissible in evidence and be of such a character as to be capable of conferring valid title on the party relying on it.

By that analogy the deed is in the name of Mrs. Juliana Fakayode. Hon.

Justice Fakayode said he was acting on behalf of Mrs. Fakayode but he never produced any authority to back up this claim. He showed no evidence that the property belonged to him. He had no authority in law to sell that which he did not have. The Respondents had a palpable inkling that Hon. Justice Fakayode did not own the property nor did he have the consent of the real owner to sell. He promised to have Mrs. Fakayode execute the deed of transfer. He never did nor did he execute.

The purchaser has a duty of due diligence before parting with his hard earned money. The vendor produced a document in another man’s name as title to the property he sought to sell. He produced no evidence of authority to sell the said property, yet the purchaser went ahead to pay for the property. The sale was never legally executed as the real owner never executed the deed, yet the purchaser went ahead to develop the property; that was gullible. That was taking a huge risk. This much the Respondent admitted by saying that they relied on the integrity of the vendor who was a Justice. This is no defence in law.

The alleged regular and lone presence of the vendor at the site

of the property while the Respondents developed the property was another pointer to an oddity in the transaction. This also attests to the fact that Mrs. Fakayode was not within immediate reach. The purchasers decided to turn a blind eye to all the tell-tale signs dangled before them masked as an encouraging presence to the rest of the world. The evidence or defence that the purchaser used to work for Hon. Justice Fakayode does not add to the credibility of the witness and should not have been taken hook line and sinker by the learned trial judge.

Indeed, his Lordship did not believe this as demonstrated anon:

“If Exhibit ‘D’ is used as a hanger to test the credibility of the oral evidence of the 1st defendant, then his evidence that Late Justice Fakayode told him that he had the authority of his wife or that he was acting for his wife cannot be true and must be ignored. Based on the above, the only conclusion I am able to draw is that the late Justice sold the property as his own.

The next natural question is whether from the entire evidence led in this case both oral and documentary, it can be said that the late Justice Fakayode was the owner

of the land in dispute, though Exhibit ‘A’ was made in the name of his wife. The claimant confirmed that Exhibit ‘D’ is his father’s handwriting and signature. However, he said the property was not his father’s property. He said his mother acquired the property and paid for it. She planted crops and erected structures thereon. She was paying annual grand rents and other fees thereon. DW2 said Late Justice Fakayode constructed the building on the land and her husband was the engineer who worked for Late Justice Fakayode on the building, she never saw Mrs. Fakayode on the land.”

The learned trial Judge had no legal capacity to draw this selective conclusion when the property is in the name of Mrs. J. Fakayode whom he clearly kept out of the picture in the whole transaction, nor was DW2’s testimony of any legal value being mere speculation, conjecture and hearsay? No!

Uncontradicted evidence was placed before the Court to say that the rightful owner resided in England, One of the adjournments was on the basis that Mrs. Fakayode was not in Court because she was out of the Country. In this appeal, the hard facts are that the late Hon. Justice Fakayode,

purporting to be an agent, sold the property of his wife without her legal authority. It is the law that in an agency relationship, an agent who is to transfer title in a property on behalf of his principal must be appointed by deed. In other words, an agent appointed to execute a deed must be appointed by a deed (power of attorney). An agent cannot dispose of interest in land unless he is appointed in writing.

In the case of VULCAN GAS LIMITED v. GESELLSCHAFT FUR INDUSTRIES GASVERWERTUNG A.G. (G.I.V.) 2001 9 NWLR (Pt. 719) 610 it was stated by the Apex Court per Iguh, JSC that:

“Usually, the relationship of principal and agent may arise in any one of five ways namely-:

1. By express appointment, whether orally or by letter of appointment, or indeed by a power of attorney. Under this heading, no formality such as writing is required for the valid appointment of an agent except for instance where the authority of the agent is to execute a deed on behalf of a principal, in which case the agency itself must be by deed”

A person who does not have exclusive legal right to a property cannot sell it. In the case of ERINOLA v. OWOKONIRAN (1965)

NMLR 479 @ 493 it was stated per IDIGBE, JSC that:-

“in order to transfer legal title under English law by purchase, there must be a valid sale payment of money accompanied by acknowledgment of receipt and execution of a deed of conveyance in favour of the purchaser.”

It was the duty of the vendor who was selling as agent to show proof of his appointment as same. Not only did he fail in this duty, he and his supposed principal did not assign a deed of conveyance in favour of the purchaser and the purchaser acted gullible in failing to demand for legal documents in support of the sale, since the vendor was not the direct title holder.

The Respondents in their ambition to own property, took a gamble by ignoring true situation. They threw their money into the deep pit when they believed the story not worthy of belief.

In the reliefs sought before the trial Court, the Appellants claimed an award of:-

(1) The sum of N10,000,000.00 representing exemplary and aggravated damages for trespass on and damage to the Plaintiff’s land at No. 19 Akinsenwa Street, New Bodija, Ibadan Oyo State of Nigeria (which land is also known as Plot No. “DZ” in

Block XX Housing Corporation Bodija/Extension, Ibadan Oyo State) by the defendants which acts of trespass commenced in or about 1996.

(2) An Order that the Defendant do forthwith pull down and remove all their illegal structures and buildings built on the said land and vacate the same forthwith; and

(3) An order of perpetual injunction to restrain the defendants whether by themselves or by their servants or agents or any other person claiming through them or otherwise however from thereafter further trespassing on and using the Plaintiff’s land at 19 Akinsenwa Street, New Bodija, Ibadan Oyo State of Nigeria.

Evidence was placed before the Court that there was a structure on the land before the Respondents trespassed on to the land. The Respondent testified that they demolished the existing structure before erecting their own. It is argued that a claim for exemplary damage is one of special damages requiring strict proof. In this appeal, the Respondent admitted demolishing an existing structure. The Supreme Court has in numerous cases held that where facts are admitted no evidence is admissible in proof of those facts. (Refer HONIKA SAWMILL

(NIG) LTD v. MARY OKOJIE HOFL (1994) 2 SCNJ 86 @ 89, 97 & 98 also in (1994) 2 NWLR (Pt. 326) page 52. What further proof is required? By the provisions of Section 16 of the Court of Appeal Act, this Court has the power to make an order which a trial Court can make, we can re-hear a case on the record and where evidence establishes a fact, this Court will not shy away from its responsibility and will therefore make the necessary findings the Court below has failed to make. Refer AKIBU v. OPALEYE (1974) ALL NLR (Pt. II) PAGE 344 AT 356. See also GEOSITE SURVEYS (NIG) LIMITED v. CHIEF FRIDAY E. NWAGBARA (2007) (Pt. 386) All FWLR page 742 at 765-766.

In view of the foregoing, I hold that the learned trial Judge failed to adequately evaluate the evidence placed before the trial Court and thereby came to a perverse conclusion in dismissing the case of the Appellant. The decision of the learned trial Court is hereby set aside. This appeal is allowed.

Accordingly the reliefs sought by the Appellant before the Trial Court are hereby granted. Judgment is entered for the Appellant as plaintiff at the Trial Court.

HARUNA SIMON TSAMMANI, J.C.A.: I was privileged to read in advance, the draft of the judgment just delivered by my learned brother, M. B. Dongban-Mensem, JCA. I agree that this appeal has merit and should be allowed.

I only wish to add that, lapse of time may be evidence of acquiescence, but lapse of time in itself alone does not amount to acquiescence. Facts and circumstances must exist which will make it unjust and inequitable to declare title to land in favour of the real owner. In other words the fact to ground a defense of acquiescence must be strong, cogent and of such character which gives to every reasonable person that the owner of property acquiesced to the act of the Defendant which is inconsistent to his title to the land. See Okereke v. Nwankwo (2003) 9 NWLR (Pt. 826) p. 592 and Atunrase v. Sunmola (1985) 1 NWLR (Pt. 1) p. 105.

In the instant case, the pleadings and evidence on record show that Justice Fakayode who purportedly conveyed the land to the Respondent vide purchase, was not the owner of the land in dispute. The real owner is his wife, Mrs. Fakayode in whose name the title deed was made. There is no evidence on the record to show that

Mrs. Fakayode gave any right or acquiesced to her husband selling the land to the Respondent or at all to any other person. The record does not also disclose any positive evidence showing that Mrs. Fakayode was aware of her husband selling the land to the Respondent without her consent, yet failed to take steps to cancel the sale. On the whole therefore, there is nothing on the record to suggest that Mrs. Fakayode is guilty of acquiescing to the occupation of the land by the Respondent on the ground of any purported purchase of the land by him.

For the above reasons and the detailed reasons ably adumbrated in the lead judgment that I agree that this appeal has merit and is hereby allowed. The judgment of the Court below delivered on the 27th day of January 2011 is hereby set aside. I abide by the consequential orders made in the lead judgment including the order on costs.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft form the judgment of my lord Monica Bolna’an Dolgban-Mensem, J.C.A. I have nothing useful to add. I agree that the judgment of the lower Court be set aside.

Appearances

Oluseun Abimbola (With, Akinwunmi Akinrinde and Mrs. Busayo Oso)For Appellant

AND

Isiaka Abiola Olagunju (With, Ibrahim Lawal, Esq. and Olajumoke Oladejo (Mrs.))For Respondent