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J.O. LAOSEBIKAN & ORS v. MADAM OLAYINKA AWOJOBI (2015)

J.O. LAOSEBIKAN & ORS v. MADAM OLAYINKA AWOJOBI

(2015)LCN/7918(CA)

In The Court of Appeal of Nigeria

On Friday, the 26th day of June, 2015

CA/L/310/1995

RATIO

EVIDENCE: ADMISSION; WHETHER A DECLARATION OF TITLE TO LAND IS NOT MADE ON ADMISSION

It is settled that declaration of title to land is not made on admission. See UMESIE v. ONAUAGULUCHI (1995) 9 NWLR (PT 421); (1995) LPELR- 3368 (SC). It is the duty of the Claimant to present cogent evidence upon which the court can make a declaratory order. However, the admission in issue here is the one that concerns the fact of whether the trespass was reported to the police. The Respondent did not traverse the averment on this issue and it is deemed admitted. There is no duty therefore on the appellants to call evidence to prove what has been admitted. per. YARGATA BYENCHIT NIMPAR, J.C.A.

EVIDENCE: ADMISSION; WHETHER FAILURE TO EXAMINE A WITNESS CONSTITUTES AN ADMISSION

It is trite that failure to cross examine a witness constitutes an admission of the evidence adduced by that party; See AKINBIYI V. ANIKE (1959) WRNLR 16, NWANKWERE v. ADEWUNMI (1962) WRNLR 298 at 302, AMADI v. NWOSU (1992) 6 SCNJ 59 at 71. per. YARGATA BYENCHIT NIMPAR, J.C.A.

APPEAL: INTERFERENCE; CIRCUMSTANCES WHERE THE COURT OF APPEAL WILL INTERFERE WITH AN EXERCISE OF DISCRETION BY A TRIAL COURT

 Ordinarily, this Court is very reluctant to interfere with the exercise of discretion by a trial court, and it seldom does. However, the Court of Appeal will interfere with an exercise of discretion by a trial court where:
a) The trial court acted under a misconception of the law.
b) The trial court misapprehended the facts in that it gave weight to irrelevant or unproved matters.
c) The trial court omitted to take into account matters that are relevant.
d) The discretion was exercised on wrong or inadequate materials.
e) It is in the interest of Justice to interfere to prevent miscarriage of Justice; See ONI v. FAYEMI (2008) 8 NWLR (PT.1089) 400 AT 441, PARAS. A-H.
Also, in the case of UMO V. UDONWA (2012) LPELR-7857 (CA) P. 16, the Court held as follows:
“A court’s exercise of discretion without averting to all the peculiar facts and circumstance of the particular case before it, is as bad as its exercise upon a wrong principle. Also, if there is any miscarriage of Justice in the exercise of a judicial discretion, it is within the competence of on appellate court to have it reviewed. See ODUBA v. HOUTMANARACHT (1997) 6 NWLR PT. 508, 185.” per. YARGATA BYENCHIT NIMPAR, J.C.A.

THE DOCTRINE OF LACHES AND ACQUIESCENCE; WHETHER THE APPELLATE COURT MUST EXAMINE HE DEFENCE PUT UP BY THE DEFENCE BEFORE INTERFERING AND THE DEFINITION OF LACHES AND ACQUIESCENCE, THE ELEMENTS THAT MUST BE PUT IN PLACE BEFORE THE DOCTRINE OF LACHES AND ACQUIESCENCE AVAIL A PARTY AND  THE ISSUE OF ESTOPPEL BY CONDUCT

However, before interfering with the exercise of discretion, it will be necessary to consider the defence put up by the Respondent, the basis of the judgment. This court must critically examine the Respondent’s plea of estoppel by conduct, proprietary estoppel and plea of laches and acquiescence. The Black’s Law Dictionary 7th Edition by Bryan A. Garner at page 879 defines “LACHES” as:
“1. Unreasonable delay or negligence in pursuing a right or claim – almost always an equitable one in a way that prejudices the party against whom relief is sought.
2. The equitable doctrine by which a Court denies relief to a claimant who has unreasonably delayed or been negligent in asserting the claim, when that delay or negligence has prejudiced the party against whom relief is sought.”
“ACQUIESCENCE” on the other hand, is defined at page 23 of the same Dictionary thus:
“1. A person’s tacit or passive acceptance implied consent to an act.
2. Passivity, and inaction on foreign claims, that, according to customary international law, usually call for protest to assert, preserve, or safeguard rights. The result is that binding legal effect is given to silence and inaction. Acquiescence, as a principle of substantive law is grounded in the concept of good faith and equity.”
The twin concepts of laches and acquiescence as defined above are predicated on the public policy that it is important that the protection of the law be bestowed upon long and undisturbed possession of land, even when it is wrongful. The doctrine of laches and acquiescence and standing by has its root in the equitable maxims that:-
“delay defeats equity” and “equity aids the vigilant and not the indolent”.

The elements which must be present for the doctrine to avail a party are as follows: –
“1. That the Respondent was in fact mistaken as to his own rights over the land.
2. That he had in reliance of the mistake expended his money on the land.
3. That the plaintiff must have known of the existence of his own right which is inconsistent with the right claimed by the Respondent over the land.
4. The plaintiff must have known of the mistaken belief of the Respondent.
5. The plaintiff must have encouraged the Respondent in his expenditure of money”. SEE JIWUL V. DIMLONG (2003) 9 NWLR (Pt. 824) 154 PER NZEAKO, J.C.A.

One other important principle of law on the defence of acquiescence is that for acquiescence to deprive a man of his legal rights it must be such as amount to fraud. It is therefore certain that a party is not to be deprived of his legal rights unless he has acted in such a manner as would make it fraudulent for him to set up those rights; See ATUNRASE v. SUNMOLA (1985) 1 NWLR (PT. 1) 105 AT 111; JIWUL v. DIMLONG (2003) 9 NWLR (PT.824) 154. On the issue of estoppels by conduct, case law defined it as follows: “Where a party has by words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as modified by himself, even though it is not supported in point of law by any consideration, but only by his word (see Combe v. Combe (1951) 1 All ER 767 as per Denning L.J (as he then was) at p. 770. The only qualification to the above principle is that it can only be invoked by a defendant. It can never stand alone as giving a cause of action in itself and cannot therefore, do away with the necessity of consideration when that is an essential part of a plaintiff’s cause of action”. See TIKA-TORE PRESS LTD V. ABINA (1973) 12 S.C. 67 (Reprint). per. YARGATA BYENCHIT NIMPAR, J.C.A.

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROVING THE EXISTENCE OF LACHES AND ACQUIESCENCE

The burden falls on the party alleging laches and acquiescence to prove its existence and not the other way round; See AKOBI v. OSADEBE (2014) LPELR-22655(CA). It is also trite that a defendant who seeks to rely on a defence to demolish the case against him must produce adequate credible evidence in his averment pleadings otherwise it would be deemed abandoned, see DUROSARO V. AYORINDE (2005) 8 NWLR (PT.927) 407, STERLING PLANTATION AND PROCESSING COMPANY LIMITED v. CHIEF SOLOMON AKOTEYON AGBOSU & ORS (2013) LPELR-22146(CA). per. YARGATA BYENCHIT NIMPAR, J.C.A.

THE DEFENCES OF LACHES AND ACQUIESCENCE; THE ONUS ON THE PARTY WHO SET UP THE DEFENCES OF LACHES AND ACQUIESCENCE AND STANDING-BY TO ESTABLISH THAT THE PARTY AGAINST WHOM THOSE DEFENCES ARE SET UP HAD NOTICE OF WHAT WAS BEING DONE, THAT HE DID NOTHING TO PREVENT IT

Now, in view of all the evidence proffered by the Appellants, can the Appellants be said to have folded its hands? I think not. In the case of OKEREKE V. NWANKWO (2003) 9 NWLR (PT. 826) 592 the court held as follows:
“The position of the law is that a party who sets up the defences of laches and acquiescence and standing-by must establish that the party against whom those defences are set up had notice of what was being done, that he did nothing to prevent it and that the position of the opposite party was being altered to his prejudice, or detriment or that he had been induced by the other party’s inaction to spend money.” PER EDOZIE, J.S.C.

The Appellants in actual fact took steps to resist the trespass of the Respondent. The Respondent could not show how the Appellants led her into developing land without resistance. There was evidence that the Respondent’s son rushed construction work of the building after being accosted by the Appellants. What the Respondent or her agents should have done when accosted by the Appellants was to have ascertained and cleared all doubts regarding her title to the land rather than continue to build on it. In TAIWO V. TAIWO (1958) 3 FSC 80 AT 82, the Court said:
“Acquiescence does not bar a claim unless certain conditions are fulfilled. One of the most important is that the party who relies on his opponent’s acquiescence must have been led by it to expend money or otherwise after his position. There is nothing to show that the plaintiffs or their predecessor-in-title, Rebecca’s, have been led to do anything of the sort by the Respondent’s failure to assert their claim.”

Furthermore, in the case of O. SOLOMON & ORS V. A. R. MOGAJI & ORS. (1982) 11 S.C. 1 AT 25, the Court PER BELLO J.S.C. (as he then was) said:
“The authorities, such as Mogaji v. Nuga (1960) 5 FSC 107, Agonran v. Olishi (1967) 1 All NLR 177 appear to establish that where a land owner stood by and knowingly by his inaction allowed a stranger to develop the land in good faith without the owner appraising the stranger the defect of his title then the doctrine of acquiescence may properly be invoked to estop the owner from reaping the benefit of the stranger’s labour. If however the owner promptly warned the stranger of the defect of his title, as the respondents 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 v. Okiade 8 W.A.C.A. 46.”

It is important to note that the doctrine of laches and acquiescence does not specifically state the extent to which the land owner must go to prevent the stranger from developing the property. What is sufficient is that the landowner must have taken actionable steps to promptly warn the stranger of his defect in title. This I find the appellants did. The Respondent therefore failed to establish the defences raised and the evidence of the appellants is stronger than that of the Respondent. per. YARGATA BYENCHIT NIMPAR, J.C.A.

JUSTICE

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

 

Between

1. J. O. LAOSEBIKAN
2. J. O. OLUGBEMI
3. E. A. OLUSESI
4. J. O. OGUNSANYA
(Carrying on business as partners under the name of Associated Land Surveyors & Co.)Appellant(s)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Lagos State delivered by HON. JUSTICE I.A. OLORUNNIMBE on the 14th day of April, 1987 wherein the trial court dismissed the claim of the Appellant for a declaration of title to a piece or parcel of land situate at Onigbagbo Village Road, Ikeja, Lagos State. Dissatisfied with the decision, the Appellant appealed to this court by filing a Notice of Appeal dated 13th July, 1987 setting out 3 grounds of Appeal.

FACTS:
The brief facts of the case are that the Appellants had acquired the property in dispute from one Dr. Arhur Babatunde Adefowope and the conveyance documents duly registered in the Lands Registry, Lagos. However, the Appellants later discovered the Respondent and her agents on the property trying to put up a building on the property. Attempts to stop them proved abortive as the workers hastened to finish work. The Appellants at a point reported to the police and even sued the Respondent’s son who was on the land supervising the work. All efforts to stop the development failed, hence, the Appellants filed a suit in the High Court. The Claim of the Appellants before the trial court states thus:
a) A Declaration that the Plaintiffs are entitled to a statutory right of Occupancy in respect of a piece of land situate at Onigbagbo Village Road, Ikeja, Lagos State and the Lagos State Ministry of Works and Planning Approved Layout Number TPA 0821 of 7/2/77 and bounded by Survey Pillars OG6508, OG6509, OG6529, OG6520.
b) N2000.00 damages for trespass
c) Perpetual injunction restraining the Defendant, her servants and agents from committing further acts of trespass on the Plaintiffs land.

During the course of proceedings, the Respondent amended her statement of defence averring that she mistakenly built on a neighbouring plot of land (i.e. the property in dispute) instead of the plot she bought and was conveyed to her. She relied on the defences of estoppel by conduct, proprietary estoppel, laches and acquiescence. After hearing both sides, the court dismissed the claim of the Appellants after finding that they proved title and that the land was conveyed to them but upheld the defence of the Respondent thereby dismissing the claim of the Appellants in its entirety. The Appellants were aggrieved by the decision thus this Appeal.

The Appellants filed their brief of Argument dated the 2nd of September, 1996 which was later refiled on the 13th day of May, 2015 with the leave of court. The Respondent did not file any brief of Argument. The Appellants, vide their motion filed 12th November, 2014, sought for an order of the Court to hear the appeal on the Appellant’s brief only and leave was granted on the 3rd of March, 2015.

The Appellants in their brief formulated one issue for determination as follows:
“Whether the learned Trial Judge having found as a fact, that the Appellants were the owners of the land in dispute, was right in dismissing the Appellants’ claims on the ground that the Respondent proved her equitable defence without considering the reply and opposition of the Plaintiffs thereto.”

The court shall adopt the lone issue distilled by the Appellants as the issue for determination in this Appeal.

In their brief, the Appellants submitted that their title to the property in dispute had been sufficiently established and the trial judge found it so. Yet, the judge made a perverse decision that notwithstanding its findings, the Appellants were not entitled to their claims because the Respondent had proved her equitable defences. According to the appellants, the evidence relied upon by the trial judge did not emerge from the trial and stated that a court of law should not presume the existence of facts not placed before it, they relied on EKPENYONG V. STATE (1973) 5 NWLR (PT.295) 522.

They also submitted that short of taking laws into their hands to physically assaulting the Respondent or her agents and workers, they did what was reasonably expected of them to do in their resistance to the Respondent’s trespass by instituting this claim. They contended that they challenged the Respondent’s son, Afolabi Dixon who was found on the land along with their workers during construction, they even reported the matter to the police and in 1978 sued the Respondent’s son Afolabi Dixon before joining the Respondent. The Appellants also claimed that from the pleadings and evidence before the court, the Respondent was quite aware of the protest of the Appellants but still chose to develop the property.

Furthermore, they submitted that the evidence relied upon by the court that the Appellants/their agents were using the Respondent’s borehole water was never pleaded in the Respondent’s Amended statement of Defence and such evidence ought not to have been considered by the court and referred to OKAGBUE V. ROMAINE (1982) N.S.C.C. (VOL. 13) 130. Appellants contended that the Respondent did not challenge them in her pleadings or during cross examination, when they stated that they challenged the presence of the Respondent/her agents on the property and had even reported the matter to the police. That since the averments were not denied, it is sufficient that the averment was admitted and thus proved without calling the police. They urged the court to set aside the judgment of the trial court on the ground that the Appellants had proved their case for declaration of title and that the Respondent has failed to prove her equitable defence and because there was evidence to show that the Appellants asserted their legal right to the property as soon as they became aware of the trespass by the Respondent and that the conclusion reached by the trial court cannot be justified.

RESOLUTION:
The Appellants proved their title by adducing evidence in proof of same, which fact was later admitted by the Respondent and affirmed by the trial court. Yet, the trial court went ahead to make an order dismissing the claim of the Appellants as owners of the property. The lower court at pages 83, paragraph 6-10 of the Record of Appeal, stated as follows:
“It is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence NOT by admission in the pleadings of the defendant that he is entitled. The necessity for this arises from the fact that the Court has discretion to grant or refuse the declaration… I respectfully adopt these decisions. Considering the whole evidence herein, I find myself unable to exercise my discretion in favour of the plaintiffs. I therefore refuse to grant the declarations sought.”

It is settled that declaration of title to land is not made on admission. See UMESIE v. ONAUAGULUCHI (1995) 9 NWLR (PT 421); (1995) LPELR- 3368 (SC). It is the duty of the Claimant to present cogent evidence upon which the court can make a declaratory order. However, the admission in issue here is the one that concerns the fact of whether the trespass was reported to the police. The Respondent did not traverse the averment on this issue and it is deemed admitted. There is no duty therefore on the appellants to call evidence to prove what has been admitted.

It is trite that failure to cross examine a witness constitutes an admission of the evidence adduced by that party; See AKINBIYI V. ANIKE (1959) WRNLR 16, NWANKWERE v. ADEWUNMI (1962) WRNLR 298 at 302, AMADI v. NWOSU (1992) 6 SCNJ 59 at 71.

The lower court found that the appellants proved their title by evidence and there is no challenge to that finding so it must be taken as such even by this court as the finding cannot be disturbed suo motu by this court.

In the instant case, the trial court established that the Appellant had title to the land in dispute which the Respondents had mistakenly built on and stated at pages 82 of the Record of Appeal particularly paragraphs 20-25 as follows:
“At the outset I find the following facts proved:
1. That the Plaintiffs are the owners of the two PLOTS of land, PLOTS 14 and 15 in Dr. Adefowope’s layout- known as Nos. 26 and 28 Allen Avenue, Ikeja.
2. The Defendant is the owner of two plots 3 and 4 is Osinuga’s layout at the back of the Plaintiffs’ land facing FOLAWEWO AVENUE CLOSE.
3. That the Defendant had built on PLOT 15 i.e. 28 Allen Avenue while the Plaintiffs built on PLOT 14 i.e. 26 Allen- next door.”

Since the court found that the Appellants’ established their ownership of the land in dispute (Plot 15 i.e. No. 28, Allen Avenue), why did it decline to find in the Appellants’ favour by declaring their ownership to the land? A court cannot go outside the facts before it and the ambit of the law in exercising its discretion. Ordinarily, this Court is very reluctant to interfere with the exercise of discretion by a trial court, and it seldom does. However, the Court of Appeal will interfere with an exercise of discretion by a trial court where:
a) The trial court acted under a misconception of the law.
b) The trial court misapprehended the facts in that it gave weight to irrelevant or unproved matters.
c) The trial court omitted to take into account matters that are relevant.
d) The discretion was exercised on wrong or inadequate materials.
e) It is in the interest of Justice to interfere to prevent miscarriage of Justice; See ONI v. FAYEMI (2008) 8 NWLR (PT.1089) 400 AT 441, PARAS. A-H.
Also, in the case of UMO V. UDONWA (2012) LPELR-7857 (CA) P. 16, the Court held as follows:
“A court’s exercise of discretion without averting to all the peculiar facts and circumstance of the particular case before it, is as bad as its exercise upon a wrong principle. Also, if there is any miscarriage of Justice in the exercise of a judicial discretion, it is within the competence of on appellate court to have it reviewed. See ODUBA v. HOUTMANARACHT (1997) 6 NWLR PT. 508, 185.”

However, before interfering with the exercise of discretion, it will be necessary to consider the defence put up by the Respondent, the basis of the judgment. This court must critically examine the Respondent’s plea of estoppel by conduct, proprietary estoppel and plea of laches and acquiescence. The Black’s Law Dictionary 7th Edition by Bryan A. Garner at page 879 defines “LACHES” as:
“1. Unreasonable delay or negligence in pursuing a right or claim – almost always an equitable one in a way that prejudices the party against whom relief is sought.
2. The equitable doctrine by which a Court denies relief to a claimant who has unreasonably delayed or been negligent in asserting the claim, when that delay or negligence has prejudiced the party against whom relief is sought.”
“ACQUIESCENCE” on the other hand, is defined at page 23 of the same Dictionary thus:
“1. A person’s tacit or passive acceptance implied consent to an act.
2. Passivity, and inaction on foreign claims, that, according to customary international law, usually call for protest to assert, preserve, or safeguard rights. The result is that binding legal effect is given to silence and inaction. Acquiescence, as a principle of substantive law is grounded in the concept of good faith and equity.”
The twin concepts of laches and acquiescence as defined above are predicated on the public policy that it is important that the protection of the law be bestowed upon long and undisturbed possession of land, even when it is wrongful. The doctrine of laches and acquiescence and standing by has its root in the equitable maxims that:-
“delay defeats equity” and “equity aids the vigilant and not the indolent”.

The elements which must be present for the doctrine to avail a party are as follows: –
“1. That the Respondent was in fact mistaken as to his own rights over the land.
2. That he had in reliance of the mistake expended his money on the land.
3. That the plaintiff must have known of the existence of his own right which is inconsistent with the right claimed by the Respondent over the land.
4. The plaintiff must have known of the mistaken belief of the Respondent.
5. The plaintiff must have encouraged the Respondent in his expenditure of money”. SEE JIWUL V. DIMLONG (2003) 9 NWLR (Pt. 824) 154 PER NZEAKO, J.C.A.

One other important principle of law on the defence of acquiescence is that for acquiescence to deprive a man of his legal rights it must be such as amount to fraud. It is therefore certain that a party is not to be deprived of his legal rights unless he has acted in such a manner as would make it fraudulent for him to set up those rights; See ATUNRASE v. SUNMOLA (1985) 1 NWLR (PT. 1) 105 AT 111; JIWUL v. DIMLONG (2003) 9 NWLR (PT.824) 154.

On the issue of estoppels by conduct, case law defined it as follows:
“Where a party has by words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as modified by himself, even though it is not supported in point of law by any consideration, but only by his word (see Combe v. Combe (1951) 1 All ER 767 as per Denning L.J (as he then was) at p. 770. The only qualification to the above principle is that it can only be invoked by a defendant. It can never stand alone as giving a cause of action in itself and cannot therefore, do away with the necessity of consideration when that is an essential part of a plaintiff’s cause of action”. See TIKA-TORE PRESS LTD V. ABINA (1973) 12 S.C. 67 (Reprint).

The question that should arise is whether the Respondent proved by evidence the defences raised so as to warrant the Court dismissing the claim of the appellants. It is now important to examine whether the actions of the Appellants amounted to what can be termed as laches and acquiescence or estoppel by conduct. The trial court was of the view that even though the Appellants alleged to have resisted the unlawful and forcible entry of the Respondent on the Appellants’ land and had allegedly reported the matter to the police, they failed to adduce credible evidence in support of same. On the other hand, I do not see where such allegations were controverted by the Respondent.

The burden falls on the party alleging laches and acquiescence to prove its existence and not the other way round; See AKOBI v. OSADEBE (2014) LPELR-22655(CA).

It is also trite that a defendant who seeks to rely on a defence to demolish the case against him must produce adequate credible evidence in his averment pleadings otherwise it would be deemed abandoned, see DUROSARO V. AYORINDE (2005) 8 NWLR (PT.927) 407, STERLING PLANTATION AND PROCESSING COMPANY LIMITED v. CHIEF SOLOMON AKOTEYON AGBOSU & ORS (2013) LPELR-22146(CA).

The trial Court ignored the evidence of PW4, who sought to prove that the Appellants had in fact taken some steps to resist the entry of the Respondent on their land. Instead, the court chose to accept the testimony of the defendant over that of the Appellant with no justifiable reason for doing so. When evidence is one sided, belief or disbelief of a witness becomes immaterial. In the case of MODUPE V. THE STATE (1988) 4 SCNJ 1 the Apex Court held as follows:
“Normally a trial Court that had the opportunity of seeing the witnesses, hearing them and watching their demeanour enjoys the special privilege of believing or disbelieving their evidence. But belief or disbelief becomes an issue when and only when there are two conflicting versions of an essential fact. When there is only one version of an essential fact and that version is not patently and obviously improbable, a trial Court is not left with any option than to believe that which has not been controverted or contradicted in any way.”
See also OLUJINLE V. ADEAGBO (1988) 4 SCNJ 1 and OBANOR V. OBANOR (1976) 2 SC 1 at 4-6.

I carefully examined the testimony of the Appellants’ witnesses before the lower court and I do not see how they slept on their right. There was evidence that the Appellants resisted the Respondent’s trespass right from the onset. They told the court that they resisted the presence of persons on the property by driving them away. PW4 told the court in evidence that he met the Respondent’s son on the land in dispute and informed him that he should desist from building on the land and that the matter had been reported to the Police, yet, such fact was not rebutted or controverted by the Respondent during cross-examination. Again PW4 said that the Police told both parties to bring their title documents for clarification and the Respondent’s son failed to turn up. This fact was also not controverted by the Respondent. In the case of IJEBU-ODE L. G. v. ADEDEJI (1991) 1 NWLR (Pt.166) 136 the Court held as follows:
“Where there is evidence to support a claim, as here, which remains unchallenged or uncontroverted by the other party, the court is bound to accept the evidence in support of the claim”
See also ABAH v. JABUSCO (NIG.) LTD. (2008) 3 NWLR (PT. 1075) 526 AT 564. In the instant case, since the Respondent did not cross-examine the Appellant’s witness as to their assertion of resisting the presence of the Respondent’s agent on the property which started as far back as May 1977, the court ought to have accepted the uncontradicted and unchallenged evidence of the appellants.

Now, in view of all the evidence proffered by the Appellants, can the Appellants be said to have folded its hands? I think not. In the case of OKEREKE V. NWANKWO (2003) 9 NWLR (PT. 826) 592 the court held as follows:
“The position of the law is that a party who sets up the defences of laches and acquiescence and standing-by must establish that the party against whom those defences are set up had notice of what was being done, that he did nothing to prevent it and that the position of the opposite party was being altered to his prejudice, or detriment or that he had been induced by the other party’s inaction to spend money.” PER EDOZIE, J.S.C.

The Appellants in actual fact took steps to resist the trespass of the Respondent. The Respondent could not show how the Appellants led her into developing land without resistance. There was evidence that the Respondent’s son rushed construction work of the building after being accosted by the Appellants. What the Respondent or her agents should have done when accosted by the Appellants was to have ascertained and cleared all doubts regarding her title to the land rather than continue to build on it. In TAIWO V. TAIWO (1958) 3 FSC 80 AT 82, the Court said:
“Acquiescence does not bar a claim unless certain conditions are fulfilled. One of the most important is that the party who relies on his opponent’s acquiescence must have been led by it to expend money or otherwise after his position. There is nothing to show that the plaintiffs or their predecessor-in-title, Rebecca’s, have been led to do anything of the sort by the Respondent’s failure to assert their claim.”

Furthermore, in the case of O. SOLOMON & ORS V. A. R. MOGAJI & ORS. (1982) 11 S.C. 1 AT 25, the Court PER BELLO J.S.C. (as he then was) said:
“The authorities, such as Mogaji v. Nuga (1960) 5 FSC 107, Agonran v. Olishi (1967) 1 All NLR 177 appear to establish that where a land owner stood by and knowingly by his inaction allowed a stranger to develop the land in good faith without the owner appraising the stranger the defect of his title then the doctrine of acquiescence may properly be invoked to estop the owner from reaping the benefit of the stranger’s labour. If however the owner promptly warned the stranger of the defect of his title, as the respondents 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 v. Okiade 8 W.A.C.A. 46.”

It is important to note that the doctrine of laches and acquiescence does not specifically state the extent to which the land owner must go to prevent the stranger from developing the property. What is sufficient is that the landowner must have taken actionable steps to promptly warn the stranger of his defect in title. This I find the appellants did. The Respondent therefore failed to establish the defences raised and the evidence of the appellants is stronger than that of the Respondent.

Hence, I find that the learned trial Judge missed the applicability of the doctrine of laches and acquiescence and also its essence, when he failed to apply those principles and take note of the other elements required by law to be present before the defences can avail a Respondent who wishes to rely on them. It is also important to note that there cannot be a declaration of title in the favour of he who successfully established the plea of laches and acquiescence; See OSHODI V. IMORU (1936) WACA 93 and IGBUM V. NYARINYA (2001) 5 NWLR (PT. 707) 554 where the Court held as follows:
“Of most serious note however is that there cannot be declaration of title in the favour of he who successfully established the plea of laches and acquiescence”

The trial court therefore erred in finding that the defences of laches and acquiescence and estoppels by conduct was proved when no cogent evidence was presented by the Respondent. The judgment is perverse and must be interfered with.

Flowing from the above therefore, this appeal is meritorious and the judgment of HON. JUSTICE I.A. OLORUNNIMBE delivered on the 14th day of April, 1987 is hereby set aside. In its place I make the following orders:
1. Declaration of title in favour of the Appellants over the piece of land situate at Onigbabo Village Road, Ikeja, Lagos now known as No. 28, Allen Avenue, Ikeja particularly described on the Lagos State Ministry of Works and Planning approved plan with Nos. TPA 0821 of 2/2/77 and bounded by Survey Pillars OG6509, OG6529, OG6520.
2. Perpetual injunction restraining the Respondent, her servants and agents against further acts of trespass on the said land.
3. The sum of N2000.00 damages for the said trespass.

I make no order as to costs.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading before now the lead judgment just delivered by my learned brother YARGATA BYENCHIT NIMPAR, J.C.A.

The sole issue adopted for the determination of the appeal has been adequately addressed in consonance with the relevant laws and authorities. I agree with the reasoning and conclusion reached therein.

I also hold that the appeal has merit and it is accordingly allowed.

I abide by the consequential orders made in the lead judgment including that of cost.

JAMILU YAMMAMA TUKUR, J.C.A.: I had a preview in draft, of the judgment just delivered by my learned brother Yargata Byenchit Nimpar, JCA. I am in complete agreement with his reasoning and conclusions.

I allow the appeal and abide by the consequential orders contained in the judgment.

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Appearances

For Appellant

 

AND

For Respondent