ADAMU GIDADO v. MALLAM SALISU LAWAL (2014)

ADAMU GIDADO v. MALLAM SALISU LAWAL

(2014)LCN/6773(CA)

In The Court of Appeal of Nigeria

On Monday, the 20th day of January, 2014

CA/K/7/2012

RATIO

INGREDIENTS TO BE ESTABLISHED IN PROVING LACHES AND ACQUIESCE

“The doctrine of laches in courts of equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most essential. But in every case, if an argument against relief, which otherwise would be just is founded upon mere delay, that delay of course not amounting to a bar by any Statute of Limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”

“The nature of the equitable defence of acquiescence is best shown in the speech of Lord Cranworth in Ramsden Vs Dyson….where he said:

“If a stranger begins to build on my land supposing it to be his own and I perceiving his mistake, abstain from setting him right and leave him to persevere in his error, a court of Equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain willfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented…”

In Nsiegbe Vs Mgbemena (1996) 1 NWLR (Pt 426) 607 at pages 622-623 H-A Edozie, JCA (as he then was) explained the doctrine of laches and acquiescence thus:

“…..acquiescence in its simplest form means conduct from which it can be inferred that a person has agreed to a certain state of affairs affecting his legal rights. A person is guilty of acquiescence when he abstains from interfering when his legal rights are violated. He is guilty of laches, that is culpable delay, when he takes no steps to enforce his rights. Acquiescence operates by way of estoppel while laches operates by way of waiver.”

the person seeking to set up the plea must have made a mistake as to his legal right;
he must have expended some money or must have done some act on the faith of his mistaken belief:
the person whose right has been infringed must know of the other person’s mistaken belief and of the existence of his own right which is inconsistent with the right mistakenly believed by the person seeking to set up the plea of acquiescence as the doctrine of acquiescence is founded upon conduct with a knowledge of one’s legal rights;
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 other acts which he has done either directly or indirectly or by abstaining from asserting his legal rights.

Where all these elements exist, it is deemed that there is a fraud of such a nature as will entitle the court to restrain the possessor of the legal right from exercising it – Kayode Vs Odutola (2001) 11 NWLR (Pt 725) 659, Jiwul Vs Dimlong (2003) 9 NWLR (Pt 824) 154, Okereke Vs Nwankwo (2003) 9 NWLR (Pt.826) 592. Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

WORDS AND PHRASES: LACHES AND ACQUIESCENSE

Laches is defined as an unreasonable delay in pursuing a right or claim in a way that prejudices the opposing party. When asserted, it is an equitable defence or doctrine. Laches is based on the maxim “Equity sides the vigilant, not those who slumber on their rights.” Laches recognizes that a party to an action can lose evidence, witnesses, and a fair chance to defend himself or herself after the passage of time from the date the wrong was committed. lf the defendant can show disadvantages because for a long time he or she relied on the fact that no lawsuit would be started, then the case should be dismissed in the interests of justice. Therefore, by invoking laches, the person is asserting that an opposing party has “slept on his rights”, and as a result of this delay, circumstances have changed such that it is no longer just to grant the Plaintiff’s claim. lt follows that failure to assert one’s rights in a timely manner can result in his claim being barred by laches.

Then, in law, acquiescence is stated to occur when a person knowingly stands by without raising any objection to the infringement of his rights, while someone else unknowingly and without malice aforethought makes a claim on his rights. Consequently, the person whose rights are infringed loses the ability to make a claim against the infringer, or succeed in an injunction suit due to the infringer’s conduct. The term is most generally a kind of “permission” given by silence or passiveness. As I pointed out, acquiescence implies positive acts and the burden is on the defendant. Acquiescence, delay or laches may defeat the right to an injunction to compel the removal of an encroachment, if it existed for an unreasonable length of time before action is taken. However, the doctrine of laches does not bar a neighbour from obtaining a judgment directing adjoining landowner to remove an encroaching fence where the adjoining landowner was informed that the neighbour thought the fence was an encroachment but the adjoining landowner continued with the installation. Therefore, by acts or conduct leading a defendant reasonably to believe he could encroach with impunity, a plaintiff may be estopped from obtaining a mandatory injunction for the removal of encroachment. Per THERESA NGOLIKA ORJI-ABADUA, J.C.A.

JUSTICES

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA G. MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

ADAMU GIDADO Appellant(s)

AND

MALLAM SALISU LAWAL Respondent(s)

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The Respondent, a Chartered Accountant was stated to have purchased a property known and described as Plot No. 41, Road ‘CF’ Unguwan Dosa Residential Extension Layout, Kaduna, from one Patrick Nkan Yari via a Deed of Assignment dated the 13th March, 2003 executed between him and the said Patrick Nkan Yari. He obtained the original Certificate of Occupancy thereto and later instructed his then Counsel to perfect his title therein. The Government Approval was given for the said assignment of the remainder rights to him. He paid for the stamp duty and registration fees in the sum of N45,000.00 and N52,500.00 respectively. He was away between December, 2004 and December, 2007, and on his return, he discovered that the land had been trespassed upon by the Appellant. He immediately lodged a complaint against the same to the Ministry of Lands, Survey and Country Planning. Following that, he initiated a civil proceeding against the Appellant which then gave rise to this appeal. The leave of the lower Court was granted to the Respondent on 28/1/09 to amend his Writ of Summons and Statement of Claim. The Amended Writ of Summons and Statement of Claim attached to the Motion were deemed as properly filed and served. In his Amended Statement of Claim, he sought for (a) a declaration that he is entitled to the right of Occupancy over the said property situate at No. 41, Road “CF” in TPO 486A Unguwan Dosa, Kaduna which he acquired by purchase; (b) a declaration that the erection of any building and the occupation of Plot 41, Road, “CF’ on TPO 486A Ungwan (sic) Dosa, Kaduna by the Defendant is unlawful and illegal; and, (c) an order of perpetual injunction restraining the Defendant or whomsoever, his servants, agents, privies and any other persons that may act on his behalf from further entry, erecting, developing and building, occupying, selling, transferring and or putting up any structure on Plot 41, Road “CF” on TPO 486A Unguwan Dosa, Kaduna. He also sought for a consequential order asking KASUPDA to so demolish the illegal structure erected by the Respondent.

In his answer to all the allegations contained in the Respondent’s Amended Statement of Claim, the Appellant, on 2/2/2009 filed an Amended Statement of Defence of fourteen paragraphs dated 1/2/2009. Further, the Plaintiff filed a Reply to the said Amended Statement of Defence. Hearing was conducted by the lower Court, and at the trial, the Respondent testified for himself while the Defendant, i.e., the Appellant, called four witnesses. The trial Court evaluated the evidence, and, on 5/4/11, it delivered its judgment in which it concluded that the Respondent is entitled to his claims in their entirety as per paragraph 12(a), (b), and, (c) of the Plaintiff’s Amended Statement of Claim dated 20/11/08 and paragraph 13 of his Reply to the Defendant’s Amended Statement of Defence dated 26/3/09.

The judgment handed down seemed unacceptable to the Defendant that on 7/6/11, he filed his Notice of Appeal against the same. It was predicated on five grounds of appeal. The parties later filed and exchanged their Briefs of Argument which were adopted by them at the hearing of this appeal. Four issues were postulated for consideration in the Appellant’s Brief of Argument. They are:
1. Whether or not the trial Court’s inability to properly evaluate the existing evidence of the Appellant did not lead to a miscarriage of justice.
2. Whether or not the trial Court’s failure to consider the Appellant’s issues for determination did not lead to a miscarriage of justice.
3. Whether going by the pronouncements of the trial Court over the Appellant’s averments, same is fatal enough to divest him of his ownership, possession and title to the property.
4. Whether or not the doctrine of Laches and Acquiescence has properly availed the Appellant to entitle him to possession, ownership and title to the said land.”

However, the Respondent raised a Preliminary Objection which he hinged on three grounds. The said objection was in respect of grounds 1, 2, 3 and 5 of the Appellant’s grounds of appeal. He, also, asserted that ground No. 4 relates to the interlocutory ruling of the lower Court against which no appeal was filed. In addition, he propounded two issues for determination in this appeal and they read:
“1. Whether the trial Court properly evaluated the evidence in relation to the matter and equally identified the issues arising therefrom before arriving at the decision, subject of the instant appeal.
2. Whether the trial Court was justified in rejecting the unregistered sale agreements.”

In tendering arguments in respect of the Appellant’s issue No. 1, the Appellant’s learned Counsel, Yakubu Husseini Esq, firstly, relied on the decision in Chief Falade Onisaodu & Anor vs. Chief Asunmo Elewuju & Anor (2006) 7 SCNJ 270 and submitted that the trial Court is at all times guided by the tenets of justice, fairness and equity, therefore, it has a duty to evaluate and assess the totality of evidence adduced before it. He contended that the unimpeached evidence of D.W.2 and D.W.3 were not evaluated by the trial Court. He, also, referred to the Sales Agreements tendered by the Appellant but which were rejected by the trial Court for non registration, and, the cases of Iyiola Ogunjumo vs. Muritala Ademola (1995) 4 NWLR Part 389 at 254 – 265, Pastor J. Akinlolu Akinduro vs. Alhaji Idris Alaya (2007) 6 SCNJ 220; Chief D. S. Yaro vs. Arewa Construction Ltd & Anor (2007) 6 SCNJ page 148 and Kachalla vs. Banki (2006) 2 SCNJ page 305, and then submitted that an unregistered instrument is admissible to prove payment of money, and, coupled with possession, it may give right to an equitable interest enforceable by specific performance. He explained that the interest being claimed by virtue of the unregistered Sale Agreement is an equitable one, and, as such, the Appellant has a valid equitable interest in the property. He has an equitable title that will avail and protect his interest. He mentioned the Kaduna State Local Government Certificate of Occupancy No. KDA/A/1009722 dated 20/8/1988, tendered as Exhibit D, and, argued that the fact it was never revoked and that none of the Exhibits tendered cast doubt on its priority, the trial Court ought to have acknowledged its primacy and superiority over all subsequent interests. He then urged that issue No. 1, be resolved in favour of the Appellant.

On issue No. 2, learned Counsel stressed that it is the duty of all lower Courts to consider all issues placed before them except in the clearest cases, and, that the purpose of a Brief of Argument is not to identify and attack the defects of a judgment but to explain with legal principles and authorities whether a decision is right or wrong in the circumstances. He relied on A.G. Leventis Nig Plc vs. Chief Christian Akpu (2007) 6 SCNJ 242 at 254; Etajata vs. Ologbo (2007) 6 SCNJ page 462 at 477 – 478 and Okwejiminor vs. Gbakeji (2008) 1 SCNJ 481 at 507. Counsel emphasized that the trial Court only mentioned the tendering of Exhibit D1, the Appellant’s Customary Right of Occupancy and it made no pronouncement on it in its judgment, which he argued has occasioned miscarriage of justice. He contended that by failing to consider Exhibit D1, the trial Court excluded the evidence that supported the Appellant’s case on his good root of title and, the fact he was earlier in time i.e., the applicability of the doctrine of priorities. He cited the cases of Adole vs. Gwar (2008) 4 SCNJ page 1 at 14 and Ojeneme vs. Azodo (2005) ALL FWLR and stated that this Court is empowered to cure the miscarriage of justice inflicted by the trial Court, by re-evaluating the evidence. He submitted that the fact the Appellant’s Certificate of Occupancy was first in time and as it was not challenged by the Respondent and was not revoked by the relevant authority puts it on a higher pedestal than that of the Respondent. He then urged that this issue be determined in favour of the Appellant.

Turning to the third issue, learned Counsel made reference to the trial Court’s remarks at paragraphs 1 and 3 of page 278 of the record, paragraph 3 of pages 277, 272 and 273 paragraph 3, sections 57, 65 and 66 of the Evidence Act, page 275, and submitted that what the Appellant stated during cross – examination was an expression of his opinion, and nothing more, and, has no bearing on the fact of possession and ownership and the duty of the Court to apply the law to the evidence adduced before it. He contended that for the learned trial Judge to have had recourse to the statement he accredited to the Appellant’s Counsel during a pre-trial conference at a very early stage in the judgment is a grave error. He submitted that the trial Court is only mandated by the rules of evidence to act upon the pleaded facts and the evidence adduced before it, including documentary evidence, and, not to act on or rely on statement made by Counsel during pre-trial conference. By placing reliance on the statement made by Counsel during pre-trial conference shows that the learned trial Judge handed down a pre-conceived judgment, i.e., he had reached his decision before evaluating the evidence. Counsel referenced the cases of Aranyu (Rtd) vs. Mandilas Ltd (2007) 4 SCNJ page 388, Orlu vs. Gogo-Abite (2010) 1 SCNJ page 322, Otanma vs. Kingdom Youdubagha (2006) 1 SCNJ page 94 and Dada vs. Dosunmu (2008) 9 SCNJ page 31 and submitted that the onus of proving title in such matters is on the Plaintiff or Claimant, regardless of the Defendant’s admissions. It is the duty of the Plaintiff to prove his claims, not for the Defendant to disprove it. It goes to show that the statements attributed to the Appellant as admission are irrelevant as far as his opponent’s case is concerned. In civil matters, it is incumbent on the Plaintiff to establish his claims by discharging the burden of proof on him. He, therefore, urged this Court to answer the issue in the negative.

On the fourth issue, learned Counsel drew the attention of this Court to the cases of Awoniyi vs. Council, Yaba College of Technology (2006) All FWLR Part 300 at 1645 at 1659 and Madu vs. Madu (2008) 2 SCNJ page 245 at 248 and Blacks Law Dictionary, 8th Edition, Brian Garner (Ed.) 2004, West A. Thompson Business, page 891 and, emphasized that there is no evidence adduced before the lower Court which established that the Customary title of the Appellant nor that of his predecessors in title was ever revoked. He stated that there are two existing Rights of Occupancy and one takes priority over the other because it is first in time, and, secondly, it had never been revoked by the authorities. He argued that as far the law is concerned, it is valid and subsisting. He submitted that a decision reached per incuriam can be set aside on appeal. He harped on the merits of the doctrine of stare decisis and submitted that it is a dangerous standard if judicial precedents are not followed. He invited this Court to rely on Madu vs. Madu (supra) and allow the appeal and award judgment in favour of the Appellant.

The Respondent’s Counsel commenced his argument on the issues raised in relation to the Respondent’s Preliminary Objection. It was argued that the particulars of error in relation to grounds 1, 2, 3 and 5 of the Appellant’s Notice of Appeal are inconsistent with the main complaints in the grounds of appeal while ground No. 4 is in respect of an interlocutory decision of the lower Court against which no appeal was filed. He relied on Ali vs. Bashir (2008) 3 NWLR Part 1073 page 94 at 133 – 134 paragraphs G – A, and, submitted that particulars of a ground of appeal should not be an independent complaint from the ground of appeal itself but should be ancillary to it. He reproduced the affected grounds of appeal and stressed that ground No. 1 of the Notice of Appeal complained of the trial Judge’s award of title of the disputed land to the Respondent on the basis of admission whereas the Particulars of Error centered on Exhibit D tendered by the Appellant which has no correlation with the substance of ground No. 1. Also, ground No. 2 relates to non evaluation of the Appellant’s evidence while the Particulars of Error were on the Appellant’s Customary Right of occupancy and evidence of D.W.2 and D.W.3. He stated that the same plight befell ground No. 3 and its Particulars of Error. Learned Counsel cited Ezomo vs. N.N.B. Plc (2006) 14 NWLR and submitted that a ground of appeal and its Particulars must be compatible. He then urged this Court to discountenance the said Particulars and strike out issues 3 and 4 derived therefrom. He further relied on the cases of S.P.D.C. Nig. Ltd vs. Edamkye (2009) 14 NWLR Part 1160 page 1 at 23 paragraphs F – H and Kwara vs. Innocent (2009) 1 NWLR Part 1121- page 179 at 215 paragraph 13 and urged this Court to uphold the Preliminary Objection and strike out the entire appeal.

Then, arguing in respect of the Respondent’s issue No. 1, learned Counsel for the Respondent, A. Bashar Esq, referred to the pleadings of the parties and their sworn depositions including those of their witnesses, the pre-trial conference held by the parties at the lower Court, the issues postulated by the parties for determination, and, submitted that it was based on the issues formulated on behalf of the Respondent, that the trial Court issued a pre-trial conference report in which it formulated a sole issue. He argued that at the pre-trial conference, the issue left for trial Court was the issue of the defence of Laches and acquiescence as the issue of title had already been resolved in favour of the Respondent on the state of pleadings and during the pre-trial conference. He made reference to the provisions of Order 26 Rule 3(a) of the High Court of Kaduna State (Civil Procedure) Rules and the cases of Ikoyi vs. Crown Realities Plc (2010) 6 NWLR Part 1189 page 14 at 127, paragraphs C – D; Ogbe vs. Asade (2009) 18 NWLR Part 1172 page 106 at 133 paragraph H; F.M.H. vs. C.S.A. Ltd (2009) 9 NWLR Part 1145 page 193 at 222 paragraph D; Owie vs. Ighiwi (2005) 5 NWLR Part 917 page 184 at 224; Gaji vs. PAYE (2003) 8 NWLR Part 823 page 583 at 607 – 608 paragraphs G – D; Salami vs. Lawal (2008) 14 NWLR Part 1108 page 546 at 574 paragraphs B – D; Auta vs. Olaniyi (2004) 4 NWLR Part 863 page 395 at 418 paragraphs C – D; Osulu vs. Osulu (2003) 11 NWLR Part 832 page 608 at 635 paragraphs C – F, and G – H; Unilorin vs. Adesina (2010) 9 NWLR Part 1199 page 331 at 407 paragraphs A – C; S.P.D.C.N. Ltd vs. Amadi (2010) 13 NWLR Part 1210 page 82 at 132 paragraphs B – D, 132 – 133 paragraphs H – B and 143 paragraphs B – C. He argued that the power of the trial Court to narrow the issues for determination in a case, in the course of pre-trial conference, is recognized by law. He further contended that the issue of priority of interest as between the Customary Certificate of Occupancy tendered by the Appellant as Exhibit ‘D1’ and, the Respondent’s title were not presented for determination at the lower Court, and, so is the issue of whether the Customary Certificate of Occupancy held by the Appellant and admitted as Exhibit ‘D1″ has the capacity of revoking the title held by the Respondent on the disputed property. He stressed that it was the pleadings of the parties that narrowed the issue between the parties at the trial Court to the defence of laches and acquiescence raised by the Appellant which in itself is a concession of title in the property to the Respondent.

He submitted that Courts are not under any obligation to decide issues not properly raised and placed before them by the parties. He recognized that it was only in the Appellant’s final address at the trial Court that the Appellant raised the issue of validity of the Customary title in the disputed property and which said issue was not pleaded by the Appellant. He further contended that the Appellant did not prove the equitable defence of laches and acquiescence because there was evidence via Exhibit 7, that the Appellant was duly warned but he refused to heed the warning and continued to develop the property when an order of injunction was made against him. He submitted that the law is, where it is clear that a party was duly warned not to continue development on a disputed property, such a party cannot later turn around and rely on the defence of laches and acquiescence as same will not avail him. He further submitted that the failure of the Appellant to establish the defence of laches and acquiescence, activates the doctrine of ‘quid quid plantatur solo, solo cedit’. He contended that the trial Court properly evaluated the evidence placed before it, it relied on the documentary evidence tendered by the Respondent in addition to the concession of title as reflected in Exhibits 1-7, particularly Exhibits 5 and 6 i.e., the duly stamped and registered Deed of Assignment evidencing title in the land, and, the Certificate of Occupancy of the Respondent’s predecessors in title. He stressed that the fact the trial Court did not cite any case law in support of its findings of fact, does not, in itself translate to refusal to follow precedent. He further stressed that the findings of the trial Court in relation to the said sole issue were consistent with established principles of law. He then, urged that this issue be resolved in favour of the Respondent.

Regarding issue No. 2, learned Counsel mentioned that the Appellant’s Statement on Oath was silent on the Sale Agreements and/or the purpose for which same were being tendered. He stated that the Appellant applied to tender the documents without any iota of evidence or introduction of facts that the sale agreement was being tendered as evidence of payment of purchase price or acquisition of equitable interest. Counsel explained that objection was raised to their admissibility as being instrument touching on land and the same having not been registered, cannot be admitted in evidence to establish title to land.

He referred to section 15 of the Kwara State Land Instrument Registration Law which was interpreted by the Supreme Court in Akinduro vs. Alaya (supra) and expressed that it is the same with section 15 of Land Instrument Registration Laws of Kaduna State, 1991. He pointed out that Appellant’s Counsel cannot furnish any evidence from the Bar regarding the Sale Agreements, i.e., that they were being tendered for the purposes of proving payment of consideration or acquisition of equitable interest, as Counsel cannot give evidence from the Bar. He submitted that the said Sale Agreements were rightly rejected by the lower Court. Counsel, then, contended that the Appellant cannot raise the issue at appeal stage without a valid appeal. He stressed that the Appellant tried unsuccessfully to appeal against the said interlocutory ruling rejecting the said Sale Agreements in evidence. He finally submitted that the Court was right not to have ascribed any probative value to the Sale Agreements as they were rejected in evidence. He urged the Court to sustain the preliminary objection and strike out the appeal or in the alternative, dismiss the appeal primarily because the Appellant did not file a counter-claim.

The Appellant filed a Reply Brief and argued that the Respondent’s Preliminary Objection is incompetent for non compliance with Order 10 Rule 1 which requires a Respondent intending to raise a preliminary objection to the hearing of an appeal to give the Appellant three clear days notice before the hearing. He relied on Oloruntoba Oju vs. Abdulraheem (2009) ALL FWLR page 29 paragraphs G – H; Enyibros Foods Processing Company Ltd vs. Nigerian Deposit Insurance Co. (2007) 3 ALL FWLR Part 383 (2007) 9 NWLR page 1039 and argued that giving such notice is a condition precedent, and, where it was not fulfilled, it divests the Court of the jurisdiction to entertain the objection. He also urged this Court not to countenance the objection as it raised purely technical issues which the Courts nowadays frown upon. He stressed that the way the Particulars of Errors were couched by the Appellant, did not offend or violate any rules of practice or procedure as to deny the Court the right to look at the issues in controversy between the parties. He replied to the arguments tendered in respect of the Respondent’s first issue by citing the authority of Stirling Civil Engineering (Nig) vs. Yahaya (2005) 11 NWLR Part 535 and submitting that the Court should limit itself to the issues presented by the parties in the pre-trial conference. He further cited the cases of Metalimpex vs. A.G. Leventis (1967) 251 911 and Apostolic Faith Mission vs. James (1987) 3 NWLR Part 61 page 556 and submitted that the Appellant pleaded and led evidence as to his root of title which was not controverted by the Respondent. He stressed that the Appellant had acquired legal estate in the land in dispute and that the Respondent has not shown any superior title.

It may be necessary, as a result of the observation made by the Appellant’s Counsel to clarify that it is long settled by the apex Court that arguments on preliminary objection can be incorporated in briefs of argument thereby obviating the need to file separate Notice of Preliminary Objection because the essence of filing a Motion on Notice is to give the Appellant sufficient time to have knowledge of the objection being raised against his appeal so as to reply to it. Therefore, a Notice of Preliminary Objection, can be given in the Respondent’s Brief. But a party filing it in the Brief, must ask the court for leave to move the Notice, before the oral hearing of the appeal commences otherwise, it will be deemed to have been waived and therefore abandoned. There are several decided authorities of the Supreme Court on this point that definitely have the effect of rendering ineffectual the said observation made by the Appellant’s Counsel. Consequently, the said observation is untenable.

I have carefully examined the grounds of the Preliminary Objection of the Respondent regarding grounds 1, 2, 3 and 5 of the Appellant’s grounds of appeal and his ground No. 4 as well, and am of the opinion that the objection seems grounded and should be thoroughly examined. It has been stated that the essence of raising grounds of appeal is to acquaint the Respondent with the complaint of the Appellant against the judgment, while the particulars are to highlight in specific language, the grounds of appeal. They are meant to elucidate and advance the reasons for the grounds. In essence, particulars of error in law is to project the reason for the ground in point. The fact that a particular of error is inelegantly drafted does not invalidate the ground from which it flows. lt is sufficient if it briefly or clearly highlights when and how the error in law occurred. Some of the Particulars of Error of the grounds of appeal pinpointed by the Respondent clearly elucidated the reasons why the Appellant believed the alleged errors were committed by the trial Court. I observed no incompatibility between the grounds raised and the reasons adduced for the complaints.

However, in respect of ground No. 4 which is questioning the interlocutory decision of the lower Court rejecting the Sales Agreement tendered by the Appellant in the course of the proceeding, it must be noted that the said decision was made by the trial Court on the 26th June, 2009. The record shows that an attempt was made by the Appellant to appeal against the said decision but the same suffered a defeat at the lower Court due to the late filing of the Motion on Notice for leave to appeal against the same. The said Motion was dismissed by the trial Court on the 18th March, 2010. It is clear in the record that no further attempt was made by the Appellant to appeal against the said interlocutory decision of the lower Court until the 7th June, 2011 when the Appellant filed a Notice of Appeal against the decision of the trial Court given on the 5th April, 2011.

It is explicit in the said Notice of Appeal that no mention was made about the lower Court’s decision on 18/3/2010 rejecting admissibility of the said Sales Agreement.

The present appeal is not challenging the said decision made in 2010 but the final judgment of the lower Court in the substantive suit delivered on 5/4/2011. It is settled law that, like pleadings, parties are bound by their grounds of appeal and are not at liberty to argue grounds not related to the judgment appealed against. Where a ground of appeal does not relate to any ratio in the judgment appealed against, it is incompetent and is bound to be struck out. Therefore, the Appellant’s ground No. 4 having not emanated from any aspect of the judgment of the lower Court delivered on the 5th April, 2011 is grossly incompetent and it is hereby struck out.

Then regarding issues Nos. 3 and 4, it is evident in the Notice of Appeal of the Appellant that they are not tied to any of the grounds of the said Notice of Appeal, the result being that they should be struck out. Accordingly, issues Nos. 3 and 4 are hereby struck out. The remaining issues for consideration herein are the Appellant’s issues 1 and 2.

In considering this appeal, I would prefer to examine the said Appellant’s issues Nos. 1 and 2 together, which to me are all encompassing. I must observe that although issue No. 1 complained of the trial Court’s inability to properly evaluate the existing evidence of the Appellant, still the points bordering on the rejection of admissibility of the said Sales Agreements were, to a certain extent, smuggled in under this issue. It is therefore my profound view that all arguments tendered on behalf of the Appellant that touched on the rejection of the said Sales Agreement in evidence will be and are hereby disregarded.

It is trite that whatever evidence a party adduced in a trial commenced by a Writ of Summons, it must conform with his pleading filed in the proceeding. In other words, the evidence is circumscribed by the pleaded facts before the trial Court. A party is incapacitated in law to lead evidence that is contrary to his averments in his pleading. Any evidence adduced by a party that is not in line with his pleading will go to no issue and shall not be countenanced by the Court. Parties are bound by their pleadings and shall only lead evidence in conformity with the same.

It is evident in the pleading of the Appellant that the trump of his case was the defence of laches and acquiescence, as rightly observed by the learned trial Judge in his pre-trial conference report. As contended by the Respondent’s Counsel, the issue of priority of interest as between the Customary Certificate of Occupancy tendered by the Appellant as Exhibit ‘DL’ and, the Respondent’s title were not presented for determination at the lower Court, and, the same applies to the issue whether the Customary Certificate of Occupancy held by the Appellant and admitted as Exhibit ‘D1″ has the capacity of revoking the title held by the Respondent on the disputed property. I must observe that the Appellant did not plead that the two parties obtained their title from one source or from the same vendor or seller.

It is settled that the doctrine of priorities apply where both parties derived their title from the same person or source. See Omiyale v. Macaulay (2009) 7 NWLR Part 1141 page 597, in which the Supreme Court held that he, who is first in time, takes priority. In other words, where there are two or more competing documents of title upon which parties to a land dispute, rely for their claim of title to such land which originated from a common grantor, the doctrine of priorities applies. I must observe that even though the Appellant at the outset of his pleading detailed how the said property devolved on him via his purchase of the same from one Alhaji Adamu Usman Katsina, he definitely did not dwell on it nor did he devote his case on it. He devoted about three quarters of his pleading to the narration of how he embarked on the development of the property in dispute in 2007 but was immediately warned by the Respondent to stop work thereon, that he, the Respondent was the owner of the said property. See paragraph 5 of his Amended Statement of Defence where he stated that in October 2007, he took possession of Plot 41U/Dosa layout and started clearing it with intent to build on it, the Plaintiff approached him and requested him to stop clearing and not to carry out any development over the said property because he, the Respondent had applied to the Ministry of Lands, Kaduna State for allocation of the said Plot to him.

What is clear in the averments of the Appellant at paragraph 5 of his Amended Statement of Defence is that when he was merely clearing the land in 2007 with only the intent to build on it, the Respondent at the earliest opportunity warned him to steer clear of the same due to his, Respondent’s, interest in the land. Unfortunately, the Appellant did not halt work thereon nor heed the advice but continued with the construction and completed the same in April, 2008. As a matter of fact, Exhibit 7 dated the 27th March, 2008 confirmed the complaint lodged by the Respondent with the Honourable Commissioner, Ministry of Lands, Survey and Country Planning, Kaduna state against the Appellant reporting the trespass being committed by the Appellant on his land. The Appellant stated that following the complaint, the parties were invited by KASUPDA where it was confirmed to both of them, i.e. the parties that the said Plot 41, U/Dosa, Layout belonged to the Plaintiff. They were then advised to go home and settle. The settlement could not be reached and, as a result, he pleaded the defence of laches and acquiescence.

The fact clearly projected by the parties’ visit to KASUPDA is the KASUPDA’s lack of acknowledgment of the said Certificate(s) relied upon by the Appellant. I must observe that if those documents had indeed emanated from the said authority, it would have, at least, recognized the same as having originated therefrom, then the issue of who was first in time or whether there was revocation of his predecessors’ title would have arisen. However, as the evidence played out, it was only the Respondent’s title that was recognized by KASUPDA, that was why the Appellant found it much soothing to raise and rely heavily on the defence of laches and acquiescence.

It is a well established principle of law that one cannot approbate and reprobate at the same time. In the one hand, the Appellant asserted he purchased the land from one Alhaji Adamu Usman Katsina and in the other hand, he somewhat and literally conceded title of the said property in issue to the Respondent which then prompted him to raise the defence of laches and acquiescence.

By pleading laches and relying on it, the Appellant is alleging that the Respondent’s legal right over the property is stale under the circumstances and no longer able to support enforcement. Laches is defined as an unreasonable delay in pursuing a right or claim in a way that prejudices the opposing party. When asserted, it is an equitable defence or doctrine. Laches is based on the maxim “Equity sides the vigilant, not those who slumber on their rights.” Laches recognizes that a party to an action can lose evidence, witnesses, and a fair chance to defend himself or herself after the passage of time from the date the wrong was committed. lf the defendant can show disadvantages because for a long time he or she relied on the fact that no lawsuit would be started, then the case should be dismissed in the interests of justice. Therefore, by invoking laches, the person is asserting that an opposing party has “slept on his rights”, and as a result of this delay, circumstances have changed such that it is no longer just to grant the Plaintiff’s claim. lt follows that failure to assert one’s rights in a timely manner can result in his claim being barred by laches.

In Ikuomola vs. Oniwaya (1990) NWLR Part 146 page 617, Kawu, J.S.C., opined:
“That the essence of the equitable doctrine of acquiescence is that if a land owner stood by when a stranger developed his land in good faith without the owner appraising the stranger the defect of this title, such owner would be stopped from reaping the benefit of such development, and court of equity would not assist him in enforcing his right. See Solomon & Ors vs. A. R. Mogaji & Ors (1982) 11 SC 1 at 25 – 32. If however, the owner promptly warned the stranger of the defect of his title, as the Respondent clearly did in this case, and despite the warning, the stranger continued with the development of the land, the doctrine would not assist him. See Morayo vs. Okiade 8 WACA 46. The Court of Appeal was absolutely right when it held that on the facts and circumstances of the case as a whole, the appellants cannot be said to have acquiesced in the possession and sale by Jimoh.”

It must be emphasized that defence of acquiescence focuses primarily upon the perception encouraged by the plaintiff in the mind of the defendant that equitable rights will not be enforced. On the other hand, the defence of laches focuses upon the inequitable length of time that it has taken for the plaintiff to enforce such rights. In both situations, the Courts will take into account factors emphasizing the inequity enforcement, factors such as hardship, unfair conferral of a benefit upon the plaintiff and prejudice to third parties.

In the instant appeal, the Appellant clearly averred in his pleading and unequivocally stated in his evidence that he was warned by the Respondent in 2007 when he was about to commence construction work on the said property in dispute, to the extent that the Respondent lodged a complaint against him with the Kaduna State Ministry of Lands, Survey and Country Planning and they were invited by KASUPDA. As expressed by Kawu, J.S.C., if the landowner promptly warned the stranger of the defect of his title, and despite the warning, the stranger continued with the development of the land, the doctrine would not assist him. As I noted earlier, the Appellant cannot approbate and reprobate at the same time.

He cannot be heard to complain that the trial Court failed to consider his issues when, by his pleading he had somewhat confined his case within the perimeter of the defence of laches and acquiescence. It is either he succeeds on his defence or he fails. There is evidence of prior warning by the Respondent which the Appellant brushed aside. He admitted under cross-examination as D.W.1, that he knew the property he was developing belongs to the Plaintiff. He only stopped construction work on the disputed land after he was served with the order of injunction issued by the Court. He did not obtain any building permit from the Kaduna State Urban Planning and Development Authority before embarking on the development of the property. He admitted it is not fair to deprive the Respondent of the ownership of the said property. He had even attempted to recover the cost of purchase of the said property from his vendor. Even though the Appellant later called his vendor as D.W.3, the Appellant in his pleading focused more on the alleged permission granted to him by the Respondent to build on the land. What is more, the Appellant did not file a counter-claim for a declaration of title in his favour. The search report conducted by the Respondent at the Bureau of Lands, Survey and country Planning, Kaduna, before he purchased the land was tendered in evidence as Exhibit 1. The Appellant’s evidence in chief via his Statement on Oath adopted by him during the hearing contrasted with his assertions under cross-examination. In his pleading he did not raise the issue of revocation or non revocation of the title of his predecessors, but this he stated in his evidence in chief. Then under cross-examination, he admitted knowing that the said property in dispute belongs to the Respondent.

I am afraid it was the Appellant who shot himself in the foot. He ought to have been properly advised as to how to present the facts of his case and any claims he might have wished to make. The land cannot be awarded to him when he had not sought for any relief via a counterclaim and, too when he had copiously admitted the title of the Respondent and then relied on the defence of laches and acquiescence which he was unable to prove due to the warning given to him by the Respondent at the earliest time he wanted to develop the said land. Based on the foregoing, I find it difficult to resolve the issues propounded herein against the Respondent. Accordingly, the remaining issues of the Appellant are hereby resolved in favour of the Respondent. It is my candid view that the trial Court was right in its findings and no adequate reason was perceived by this Court that would necessitate the setting aside of the decision of the trial Court. Accordingly, this appeal is unmeritorious and it is hereby dismissed. There will be no order as to costs.

ITA G. MBABA, J.C.A.: I have had the privilege of reading the draft of the lead judgment, just delivered by her lordship, T.N. ORJI-ABADUA JCA, and I agree with her reasoning and conclusion.

I too dismiss the appeal for lack of merit and abide by the consequential orders in the lead judgment.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Theresa Ngolika Orji-Abadua, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.

The resolution of this appeal centers around the application of the doctrine of laches and acquiescence to the facts proved by the parties before the lower Court. This was the defence raised by the Appellant to the claims of the Respondent and the lower Court found that the defence did not avail the Appellant in the circumstances of this case, and hence his appeal. The doctrine of laches and acquiescence is an equitable defence that operates to bar a person who has slept over his right for a long time from asserting his said right against an innocent party. It has its roots in the equitable maxims that delay defeats equity and that equity aids the vigilant and not the indolent. It discourages stale demands in the interest of peace and orderly society and is thus rooted in public policy – Ageh Vs Tortya (2003) 6 NWLR (Pt 816) 385, Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt 1230) 1, Atuchukwu Vs Adindu (2012) 6 NWLR (Pt 1297) 534. A claimant who sleeps on his right, if any, for a number of years without claiming same or taking steps to protect such interest cannot in later years make claim to same – Daniel-Kalio Vs Daniel-Kalio (2005) 4 NWLR (Pt 915) 305, Awure Vs Iledu (2008) 12 NWLR (Pt 1098) 249.

Laches essentially consists of substantial lapse of time coupled with the existence of circumstances which makes it inequitable to enforce a claim – Taylor Vs Kingsway Stores of Nigeria Ltd (1965) NMLR 103, Oduola Vs ICC (1978) 4 SC 59, Agbara Vs Amara (1995) 7 NWLR (Pt 410) 712, Adebo Vs Omisola (2005) 2 NWLR (Pt 909) 149. Speaking on the meaning of laches, Iguh, JSC in Kayode Vs Odutola (2001) 11 NWLR (Pt.725) 659 at page 683 quoted with approval dictum from the English case of Lindsay Petroleum Co Vs Hurd (1874) L.R.S.P.C. 221 thus:
“The doctrine of laches in courts of equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most essential. But in every case, if an argument against relief, which otherwise would be just is founded upon mere delay, that delay of course not amounting to a bar by any Statute of Limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.”

The term acquiescence, on the other hand, is properly used where a person having a right, and seeing another person about to commit or in the course of committing an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed; a person so standing by cannot afterwards be heard to complain of the act. Putting the meaning of the doctrine of acquiescence in perspective, Oguntade, JCA (as he then was) stated in Angbazo Vs Sule (1996) 7 NWLR (Pt 461) 479 at page 493 D-H thus:
“The nature of the equitable defence of acquiescence is best shown in the speech of Lord Cranworth in Ramsden Vs Dyson….where he said:
“If a stranger begins to build on my land supposing it to be his own and I perceiving his mistake, abstain from setting him right and leave him to persevere in his error, a court of Equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain willfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented…”

In Nsiegbe Vs Mgbemena (1996) 1 NWLR (Pt 426) 607 at pages 622-623 H-A Edozie, JCA (as he then was) explained the doctrine of laches and acquiescence thus:
“…..acquiescence in its simplest form means conduct from which it can be inferred that a person has agreed to a certain state of affairs affecting his legal rights. A person is guilty of acquiescence when he abstains from interfering when his legal rights are violated. He is guilty of laches, that is culpable delay, when he takes no steps to enforce his rights. Acquiescence operates by way of estoppel while laches operates by way of waiver.”

The doctrine of laches and acquiescence is purely equitable in nature and therefore applies to an equitable claim. The remedy is discretionary and hence it does not follow as of course. All surounding circumstances will be taken into consideration in its application. Where the doctrine of laches and acquiescence is successfully invoked, the original or true owner of the property is made to lose his title over the property – Igbum Vs Nyarinya (2001) 5 NWLR (Pt 707) 554. A person may not be deprived of his legal rights on grounds of acquiescence or laches unless it will be inequitable and unjust to grant him such a right because he has done by his conduct that which might fairly be regarded as equivalent to a waiver of it or he has by his conduct or neglect put the other party in a position where it will not be reasonable to place such other party if the remedy were to be asserted. For acquiescence and laches to deprive a man of his legal rights, it must amount to fraud; 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. Thus, the courts have held that four ingredients must be present for the plea of acquiescence and laches to be sustained and these are:
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 mistaken belief:
c. the person whose right has been infringed must know of the other person’s mistaken belief and of the existence of his own right which is inconsistent with the right mistakenly believed by the person seeking to set up the plea of acquiescence as the doctrine of acquiescence is founded upon conduct with a 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 other acts which he has done either directly or indirectly or by abstaining from asserting his legal rights.
Where all these elements exist, it is deemed that there is a fraud of such a nature as will entitle the court to restrain the possessor of the legal right from exercising it – Kayode Vs Odutola (2001) 11 NWLR (Pt 725) 659, Jiwul Vs Dimlong (2003) 9 NWLR (Pt 824) 154, Okereke Vs Nwankwo (2003) 9 NWLR (Pt.826) 592.

The proved facts in this case were that when the Appellant went unto the land in dispute to clear same preparatory to commencing development thereon sometime in 2007, the Respondent warned him to steer clear of the land as the land belonged to him. Rather than heed the advice or take steps to sort out the issue with the Respondent, the Appellant commenced and continued construction on the land which he completed in April, 2008. The Respondent by a letter dated the 27th of March, 2008, and tendered as Exhibit 7 at the trial, lodged a complaint with the Honorable Commissioner, Ministry of Lands, Survey and Country Planning, Kaduna State over the trespass of the Appellant on the land in dispute. Consequent on the complaint, the Appellant and the Respondent were invited for a meeting by the Kaduna State Urban Planning and Development Authority and whereat it was confirmed to the Appellant that the land in dispute belonged to the Respondent and the parties were advised to go and settle the issue amicably. No such settlement was reached.

It is clear from these proved facts that Appellant knew, from before he commenced construction on the land in dispute , that there was an adverse claim to the land and he was thus not mistaken as to his legal right to the land nor can he be said to have expended money in building on the land on the faith of such mistaken belief. There was evidence that the Respondent challenged the Appellant on the land in dispute, and even reported him to the governmental authorities responsible for land and urban development, and that notwithstanding which the Appellant continued building on the land. It is trite that where a party consistently challenged the other party as a trespasser on his land, the party cannot be said to be guilty of delay in commencing an action against the other party – Salako Vs Dosunmu (1997) 8 NWLR (Pt 517) 371, Okereke Vs Nwankwo (2003) 9 NWLR (Pt 826) 592. Thus, where a trespasser ignored the warning of a land owner and goes ahead to build on the land, the trespasser cannot later raise the defence of laches and acquiescence – Solomon Vs Mogaji (1982) 11 SC 1, Nnaeme Vs Maduekwe (1987) 2 NWLR (Pt 54) 1, Chukwuma Vs Ifeloye (2008) 18 NWLR (Pt 1118) 204. In Owie Vs Ighiwi (2005) 5 NWLR (Pt 917) 184 at page 224 Edozie, JSC stated thus:
“Similarly, the defences of laches and acquiescence do not avail the appellant as there was evidence accepted by the trial court that the appellant was duly warned when he commenced to dig the foundation for the erection of his building. This case underscores the need for any developer to satisfy himself with the validity of the title of the land on which he proposes to erect a building as the erection of a building on land based on defective title can lead to the disastrous consequence of the developer losing the building to the owner of the land on the principle expressed in the Latin maxim as quic quid plantatur solo solo cedit meaning whatever is affixed to the soil belongs to the soil. This is the unfortunate position in which the appellant has found himself.”

The defence of laches and acquiescence was thus not available to the Appellant in the circumstances of this case. The lower Court was on firm ground when it refused the case of the Appellant on laches and acquiescence.

It is for these reasons, and fuller expose made in the lead judgment, that I too find no merit in the appeal and I dismiss same. I affirm the decision of the lower Court and abide the order on cost in the lead judgment.

Appearances

F.U. Egwemi Esq; holding the brief of Yakubu Hussaini Esq;For Appellant

AND

O.I. Habeeb Esq; with Muhammed Sani Esq;For Respondent