O. SOLOMON & ORS V. A. R. MOGAJI & ORS(1982)

O. SOLOMON & ORS V. A. R. MOGAJI & ORS

(1982) LCN/2159(SC)

In The Supreme Court of Nigeria

On Friday, the 12th day of November, 1982

SC.36/1981

JUSTICES

GEORGE SODEINDE SOWEMIMO Justice of The Supreme Court of Nigeria

MOHAMMED BELLO Justice of The Supreme Court of Nigeria

ANDREWS OTUTU OBASEKI Justice of The Supreme Court of Nigeria

KAYODE ESO Justice of The Supreme Court of Nigeria

AUGUSTINE NNAMANI Justice of The Supreme Court of Nigeria

Between

SOLOMON & ORS Appellant(s)

AND

R. MOGAJI & ORS Respondent(s)

RATIO

CUSTOMARY LAW – Two (2) Ways of Proving Customary Law.

In Kareem v. Ogunde (1972) 1 All NLR (Part 1) 73 at 80, it has been stated that by virtue of the provisions of Section 14 of the Evidence Act, customary law must either be proved by evidence or be judicially noticed. Neither party adduced evidence of customary law on the issue. However, the High Court of Lagos decided in Olowu v. Oshinubi (1958) LLR 21 and Coker v. Animashaun (1960) LLR 71 that sale of family land as his own by the head of the family was void. In the Alienation of Family Land in Southern Nigeria by Kasunmu and James, 3rd Printing 1977 p.17, it is stated that in Alabi & Ors. v. Rufai suit No. I/28/62, an Ibadan case, Duffus, J., reached the same conclusion. per BELLO JSC.

FAMILY LAND – Sale of Family Land by Family Head Alone is Voidable.

To start with the first issue: Kadiri Oniga was no doubt the head of the Iposu family at the time of sale to the appellants. It is settled law that sale of family property by the head of the family alone without the consent of the other members is voidable. See Bello Adedibu & Anor. v. Makanjuola 10 WACA 33. (The head of the family cannot dispose of family property without the consent of the family. Such sale is voidable and can be avoided as “the native law and custom throughout West Africa in regard to the alienation of family land quite naturally has as its basis the interest of the family and not the interest of strangers who may wish to acquire family land”). Adewuyi v. Ishola 1958 WRNL 1120 (majority of the accredited representatives or principal members of the family have to join the head of family to save the sale from being avoided) Ekpendu v. Erika 4 FSC 79; Lukan v. Ogunsusi (1972) 1 All NLR (Part 2) 41 at p.45. I can only add that after the days of the West African Court of Appeal (WACA), it would be unwise to generalise about the native law and custom throughout West Africa. Suffice it to say that in so far as the Yoruba Customary Law is concerned this is still the law. per ESO JSC.

Proof of Ownership is Prima Facie Proof of Possession.

Proof of ownership is prima facie proof of possession, [England v. Palmer 14 WACA 659] unless there is evidence that another person is in possession but if there is a dispute as to which of two persons is in possession, the presumption is that the person having a title to the land is in lawful possession. See Ramsay v. Margerett (1894) 2 QB 18, 27; Makanjuola v. Hazan Khalil (1962) WRNLR 149; Abotche Kponuglo v. Adja Kodadja 2 WACA 24. per OBASEKI JSC.

DOCTRINE OF ACQUIESCENCE – When the Doctrine of Acquiescence Will Apply and When it Will Not.

The authorities, such as Mogaji v. Nuga (Supra), Aganran v. Olushi 1 NLR 67, Owodunni v. George (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 estopped the owner from reaping the benefit of the stranger’s labour. However, if the owner promptly warns the stranger of the defect of his title as soon as he discovers theÂ presence of the stranger on the land and, despite the warning, the stranger proceeds to develop the land, then the doctrine of acquiescence may not assist the stranger: Adeniji v. Ogunbiyi (1965) NML 395 and Morayo v. Okiade 8 WACA 46. ……… I would refer to the concept of doctrine of acquiescence, as stated in the classical cases of Ramsden v. Dyson (1866) LR 1 HL 129 at pp.140-141 by Lord Cranworth and in the judgment of Fry, J. in Willmot v. Barker 15 Ch. D 96 at pp. 105-106 which have been most frequently cited in our courts and upon which the decisions of our courts have been founded. per BELLO JSC.

AN ORDER OF RETRIAL – When an Appellate Court Will Order a Retrial.

TRESPASS TO LAND – What Constitute Trespass to Land in Law:

When a Person Have Authority to Enter a Land Becomes a Trespasser.

Where a person having entered upon land under an authority given by law subsequently abuses that authority, he becomes a trespasser ab initio, his misconduct relating back so as to make his original entry tortuous. Blackstone, in his commentaries on English Common Law Vol. 3 stated the principles thus “where a man misdemeans himself or makes an ill use of authority with which the law entrusts him, he shall be accounted as a trespasser ab initio!!!”
It seems clear to me that the authority given by Kadiri Oniga, the late head of the family to the appellants to enter the land was valid only in respect of his own private personal lands but invalid for entry into family lands and the appellants having made entry into family land are caught by the law of trespass. per OBASEKI JSC.

ESO, J.S.C. (Delivering the Leading Judgment): On 13th October, 1982 we dismissed this appeal and reserved the reasons for our action. I now give my reasons for dismissing the appeal.
The facts of this case are germane to the issues canvassed in this appeal. I will therefore set them out, if only concisely. The plaintiffs, who are now the respondents in this court and who will hereinafter be referred to as plaintiffs/respondents, are members of the family of Chief Iposu. One Kadiri Oniga, whose name featured throughout the case, was also a member of the family. In fact, he was the head of that family between 1925 and 1968. He died in 1968. I will come back to Kadiri Oniga presently.
Chief Iposu came about the land in dispute as a result of his having accompanied Chief Kosoko of Lagos to settle at Epe about 1851. Iposu settled on the land in dispute, remained in possession until his death after which his descendants continued in possession.
And now, to Kadari Oniga. This gentleman, as I have said earlier on became the head of the family in 1927 and remained such head until his death in 1968. However, about 1957, there was a complaint against him that he was making a personal claim to the land and that he was exercising a right of ownership over it. Some of the descendants of Iposu challenged this in court, and in an action before Fatayi-Williams, J., (as he then was), the learned Judge declared that all the members of the Iposu family (be they male or female) were entitled to the land. He granted a declaration of title accordingly in favour of all the  members of the family as against Kadiri Oniga who was laying personal claim to the land.
Now, it is of great significance that the defendants had knowledge of the judgment of Fatayi-Williams, J., (as he then was) for indeed they, as well as the plaintiffs/respondents, pleaded it. And perhaps it would be convenient at this stage to make reference to the pleadings as they refer to this aforementioned judgment of Fatayi-Williams, J., (as he then was). The plaintiffs/respondents in paragraph 13 of their statement of claim had said –
“13.  The plaintiffs will rely on the general historical tracts and various judgments in particular suit Nos. 138/27, IK/96/69 and AB/17/59”.
It is suit AB/17/59 that I am concerned with here, it being the suit wherein Fatayi-Williams, J., (as he then was) gave the decision I have earlier referred to. In a joint statement of defence filed on behalf of all the defendants, except the sixth defendant, who did not appear either to have filed a statement of defence, given evidence or indeed shown much interest in the case, the defendants said in paragraph 11 thereof –
“11.  The defendants will contend at the hearing that Suit AB/17/59 is not relevant to the land in dispute and  that by the outcome of the judgment in that suit, the plaintiffs are estopped from laying claim to the  land in dispute.”
By this pleading I do not think the defendants could claim ignorance of the judgment in AB/17/59 but more importantly is the fact that it was the defendants that tendered this judgment which was admitted as Exhibit C.
At no time did the defendants claim that Oniga sold land to them in his capacity as head of the Iposu family. Their contention throughout was that the land was personally owned by Oniga. They said so in paragraph 8 of their statement of defence-
“8. The  whole area marked yellow in the plan attached to the Statement of Claim was the undisputed land and possessed by Chief Kadiri Oniga as confirmed in the judgment in Suit No. 138/27 being relied upon by the plaintiffs.”
The suit (that is, No. 138/27) was not tendered throughout the trial  by either party, and there was  no evidence to support the contention of the defendants. In any events, the onus lies on the  defendants who pleaded the suit to have produced it. And so the  learned trial Judge (Adeoba J.), though he refused to grant the plaintiffs/respondents a declaration of title and also although he struck out the  claim for possession, found the defendants liable in trespass and awarded damages against them. He also granted an injunction against them.
The defendants appealed to the Federal Court of Appeal (Ogunkeye, Coker and Okagbue JJ.C.A.), and in a lucid judgment of that court delivered by Coker J.C.A., the court dismissed the appeal of the defendants. The learned Justice of Appeal said –
“There was no suggestion that plaintiffs who were members of Iposu family ever described Iposu Family land as Kadari Oniga’s land as in Akano’s case that is Akano & Anor. v. Yisa Ajuwon 1967 NMLR 7. They had always resisted such a description.”
The court then referred to Exhibit C and said further -“The law is clear that the onus of proof is on any person who claim exclusive ownership of family land and that long possession of family land is not adverse and therefore cannot confer exclusive right of ownership on any of its members.”
The Federal Court  of Appeal also discussed the issue of laches and acquiescence and said-
“The 1st respondent said they warned the appellants as soon as they saw them clearing the land before they started building. Also they took legal action against Kadiri Oniga concerning his dealing on the land (Exhibit C) published warning Notice in the Daily Times Exhibit A of 18/4/61.”
The court dismissed the appeal.
The defendants have now appealed to this court against that decision of the Federal Court of Appeal. They filed several grounds of appeal and this court granted them leave to file additional grounds of appeal. These, coupled with the brief of the appellant range between complaints on matters of procedure and substantive matters as to the ownership of the land and issues of laches and acquiescence. It would appear to me however, after the oral arguments, that the appellants’ reliance on procedural points is half-hearted and the real issues in this appeal are –

(1)  whether the sale to the defendants by Kadiri Oniga was void or at least voidable and
(2)  whether or not the plaintiffs/ respondents had slept too long on their rights (if any) and the defence of the appellants of laches and acquiescence should have  been upheld by the court.
After we had adjourned for judgment in this appeal we recalled learned  counsel to address on the issue as to whether or not the defendants were trespassers having regard to the fact that it was the head of family (Oniga) who let them unto the land. Thus, there is a third issue to wit –
(3)    were the defendants trespassers qua the  plaintiffs having regard to the fact that they got to the  land via Oniga the head of the family

I think the points raised in this appeal, though they look simple, are of considerable importance. To start with the first issue: Kadiri Oniga was no doubt the head of the  Iposu family at the time of sale to the appellants. It is settled law that sale of family property by the head of the family alone without the consent of the other members is voidable. See Bello Adedibu & Anor. v. Makanjuola 10 WACA 33. (The head of the family cannot dispose of family property without the consent of the family. Such sale is voidable and can be avoided as “the native law and custom throughout West Africa in regard to the alienation of family land quite naturally has as its basis the interest of the family and not the interest of strangers who may wish to acquire family land”). Adewuyi v. Ishola 1958 WRNL 1120 (majority of the accredited representatives or principal members of the  family have  to join the head of family to save the sale from being avoided) Ekpendu v. Erika 4 FSC 79; Lukan v. Ogunsusi (1972) 1 All NLR (Part 2) 41 at p.45. I can only add that after the days of the West African Court of Appeal (WACA), it would be unwise to generalise about the native law and custom throughout West Africa. Suffice it to say that in so far as the Yoruba Customary Law is concerned this is still the law.            In the instant case, the claim is not that the head of family, Kadiri Oniga  sold qua his position as head of family. The plain claim was that it was his own land and not family land that he sold to the appellants. Paragraphs 6, 8, 10 and  12 of their Statement of defence are clear –
“6.  The defendants derive respective roots of title from one Chief Kadiri Oniga Oba Kadiri Posu who died on or about 1968.
8.   The whole area marked yellow on the  Plan attached to the Statement of Claim was the undisputed land owned and possessed by Chief Kadiri Oniga…………
10.  The plaintiffs are opportunists and brought this action in their attempt to cause confusion upon the death of Chief Kadiri Oniga in respect of all his properties.
12. The defendants will also contend at the hearing of this suit that the traditional history professed by the plaintiffs in their statement of claim is an outrageous concoction.”
Now, the traditional history  proffered by the plaintiffs/respondents in their statement of claim  is that the  land was family land,  that of Iposu family, and not that of Oniga personally. Exhibit C which was pleaded by the plaintiffs/respondents and  also by the appellants and tendered by the appellants show beyond any doubt this contention of the plaintiffs/respondents. In other words, by Exhibit C, the appellants were aware or ought to be aware that the  land was not that of Oniga but that of the  Iposu family.
Yet they proceeded with their eyes widely opened by Exhibit C to purchase from a man whom the court had adjudged not to own the land in dispute. Surely, to my mind, this is not a case of a purchaser being deceived or even ignorant of the  title. Oniga never put himself out as selling on behalf of the family. The appellants never believed they were purchasing family land either. It is therefore a case of one who had deliberately chosen to purchase  from a person who has no title. The maxim “nemo dat quod non habet” should not only apply but indeed this is a case of purchase from one who has been shown to the whole world in Exhibit C not to own what he sells. In Dr. F. Abiola Akerele v. A. Atunrase & Ors. (1969) 1 All NLR 201 this court as per Fatayi-Williams, Ag. J.S.C., (as he then was) held that where a vendor purports to convey his  own land which he was seised in fee simple in possession whereas the land naturally belongs to a family, such conveyance is void. I think the principle in that case is as good for a sale by conveyance as under native law and custom. It only means you do not give what you do not possess. If anything, it accords with commonsense. It is true that the conveyance sought to be tendered by the appellants in this case was rejected but the evidence led by them should leave no one in any doubt about their contention that Oniga owned that land and not Iposu family. The first defendant in his evidence said –
“The plaintiffs although descendants of Iposu have their (sic) replace land from that of Kadiri Oniga who was also a descendant of Iposu. They have their land at Ehin-Osa in the other side of the lagoon.”
And so it is not a case of ignorance as to the status of Oniga. The claim of the appellants was that the plaintiffs/respondents’ land was somewhere close. The witness tendered Exhibit C and  continued –

“The land in dispute in Exhibit C is not the same land as the land in dispute in this case.”
xxx

“The land on which I built my house was owned by Kadiri Oniga and not by the Iposu family.”
No proof was adduced in furtherance of this bald statement and I think the learned trial Judge as well as the Federal Court of Appeal was right in finding that it is the land in Exhibit C that is being litigated upon in this case. In any event this point has not been challenged in this court.
I have therefore come to the conclusion that the appellants having failed to discharge the onus subsequently placed on them that their vendor had property to sell, were bound to fail as they did before the High Court and the Federal Court of Appeal.
The other important part in this case is whether the respondents were not caught by the plea of laches and acquiescence. On this issues the trial court found –

“Exhibit C shows that the  plaintiff had been challenging the rights of Kadiri Oniga to the land and brought the action in Exhibit C which judgment was given in 1965. (Actually the judgment was delivered on 26th January 1961). They also caused a warning Notice Exhibit A to be published in the Daily times a newspaper circulating all over Nigeria on the  18th day of April 1961. All the building plans tendered by the defendants in this action Exhibit E (1962) and litigation of 1959 began and after the publication of the  18th of April 1961.”
The  Federal Court of Appeal, on the  issue, made reference to this  findings of the trial court before dismissing the appeal.
In 1959 the members of the  family went to court against Oniga (Exhibit C). In January 1961, the court found against Oniga. Three months later the family came out with a warning notice in the Daily Times (Exhibit A). Yet, notwithstanding all these, the defendants decided to build on the land (see Exhibit E dated 1962 and Exhibit F dated 1963). Evidence from the plaintiffs/ respondents was that they warned the defendants as soon as they saw the defendants clearing the land. That was before the defendants started to build on the land. The learned trial Judge accepted this evidence. With this evidence accepted, as it was by the court, what else could the plaintiffs/respondents have done They went to court, they went to the press, they challenged the appellants. Surely they cannot be held to be asleep on their rights. On the third issue, it is regretted, counsel were of no help to us in their addresses when recalled on 13th October 1982. But I think the issue is clear. Having found that the sale by Oniga is void then I am of the clear opinion that the presence of the defendants on the  land could be nothing else other than the act of trespassers in so far as the Iposu family the rightful owners are concerned. The possession was in the plaintiffs/respondents. As in the case of Francis D. Banigo v. Johnson O. Banigo 8 WACA 148 at 160, there could be no suggestion here that is, no evidence of possession in the  plaintiffs. The defendants got to the land by virtue of a null transaction. They had no right whatsoever. They were no owners, lessees or licencees. They were no invitees either. Qua the rightful owners, they were trespassers. This was the view of the West African Court of Appeal as per strong court consisting of Kingdom, CJN., Nigeria; Petridges, CJ., Gold Coast (as Ghana was then known) and Graham Paul, CJ., Sierra Leone in Banigo v. Banigo supra. I fully endorse this view.

It is for all these reasons therefore, that the appeal failed and was dismissed with costs assessed at N300.00

G. S. SOWEMIMO, J.S.C.: The appeal was dismissed and as was then indicated I now give my reasons. I wish to say that I agree with the main reasons set- out by my brother, Eso., for dismissing the appeal.

There is one important aspect which must be considered paramount in deciding cases affecting YORUBA customary law on family property. This case was fought on the basis of the undisputed fact that the pieces of land on which the appellants erected their buildings were sold to them by a person who had no right lawful or otherwise. The land was the family property of the IPOSU, the defendants did not dispute that they were warned not to build on the land. Their prevericated evidence was rejected, and, quite rightly, by the learned trial Judge that they were not warned when they were about to erect their buildings. The findings of fact by the learned trial Judge was confirmed, and that very properly, by the Court of Appeal on well settled principles. I cannot myself see under what circumstances the Supreme Court on hearing this appeal could claim to be better placed in the re-evaluation of evidence given on oath, and properly evaluated in the court of trial. Once it is established that people had come on to a land without any lots of right and in spite of warnings of such unlawful entry, proceded to do anything as a result of such wrongful act, they cannot claim any equity whatsoever, whether of acquiescence, laches or standing-by. These equities should not be made vehicles of fraud and therefore should never be allowed to be made the bases of dishonest claim of right.

This appeal is quite clearly argued on the basis of YORUBA customary law dealing with family property. No person whatever his status, can under secrecy sell or convey any right which he has not got on any property. The appellants in this case, had with their eyes wide open, purchased nothing and if in their unwisdom proceded to expend money, then they are open to suffer the consequences of their risky venture. Their defence has been properly adjudged by the learned trial Judge and confirmed by the Federal Court of Appeal and, in my own opinion, has been properly dismissed by this court for the above reasons.

A. O. OBASEKI, J.S.C.: I have had the advantage of a preview of the reasons for the judgment we gave on the 13th day of October, 1982 just delivered by my learned brother, Kayode Eso, J.S.C., and I find myself in complete agreement with him.

There was a point raised in the appeal on which I ought to add my comments. It is whether the fact that the appellants were let into possession of their respective holdings by the Head of the family albeit as his own private property did give the appellants lawful possession of their holdings to relieve them of any liability for trespass. It was not raised in any of the court below and but for the fact that no additional evidence is required for the proper consideration of the point I would have refused to give it any consideration.

Trespass to land in law constitutes the slightest disturbance to the possession of land by a person who cannot show a better right to possession.
Where the entry into possession is under a transaction which has been declared void or found to be void ab initio as in this case, the entry itself is void ab initio and its lawful character loses its lawfulness and acquires an illegal character from the very moment entry was made. It has no redeeming features because the head of a Yoruba family has no legal authority to convert the family land to his own private property. It is only where he holds himself out as acting on behalf of the family in respect of family land that he can transfer title though voidable if he had not obtained the consent of the principal members of the family. Any permission or authority granted by him to a person to take possession of his own private land is only valid in respect of his own private parcel of land and cannot be interpreted in law to be permission to enter the family parcels of land. It is this concept of the law that renders all including; children of the family head to whom parcels of family land have been alienated (i.e. sold or leased) and accepted as the private property of the family head liable in trespass, see Banigo v. Banigo 8 WACA. 148. Authorities abound in abundance from 1930 in support of this statement of law.

The mere possession of property may be in itself not only the origin of a right but the creation of a liability. If the appellants had bought from the Kadiri Oniga, late Head of the respondents’ family, the land in dispute not as his own private property but as family property and been let into possession, that possession would have been the origin of a right to sue for trespass. The sale having been declared void ab initio, their possession created a liability in trespass.

In Ekpedu & Others v. Erika 4 FSC. 79, the Federal Supreme court, considering the effect of declaring a lease of family property void, held that the learned trial Judge was correct in his award of damages and injunction against the appellants.

The other case I need refer to is the case of Banigo v Banigo 8 WACA 148. There, on the pleadings, it was clear that the plaintiff was claiming as head of the “Banigo House of Bonny which was apparently founded by Squiss Banigo who died in 1924, and is called in the pleadings “the Big House”. One Walter Banigo succeeded Squiss Banigo as the head of “the Big House” and he died in 1930. The first defendant/appellant is a member of late Walter Banigo, the second is Walter’s brother and the third is Walter’s son. The court, considering the issue of trespass, said at p. 151:

“Squiss Banigo sent Walter and others of the Big House people to take possession and “open” the land on behalf of “the Big House”. On Walter’s death in 1930 some of these representatives and the defendants (appellants) tried to oust “the Big House” and take and use the land as if it was the private property of Walter Banigo and his people and descendants. In the course of this scheme, the defendants committed the act of trespass complained of……. The late Walter Banigo never at any time put forward any claim or suggestion that the land in question belonged to him. As long as he lived, the ownership and possession of the land by the Big House were clear and uncontested. The evidence shows moreover that there are still on the land some of the people whom Squiss Banigo originally sent to take and keep possession of the land on behalf of the “Big House”. The possession by the “Big House” has been uninterrupted. When the defendants on the death of Walter in 1930 started using and occupying the land not on behalf of the “Big House” but on their own behalf or on behalf of late Walter’s family only, they were clearly committing trespass and the court below has rightly so found…………
In regard to the submission put forward for the first time in this court that the defendants could not be trespassers because by native custom they had the right as members of the “Big House” to use and occupy the land along with other members of the “Big House” it is sufficient to say that no evidence was led as to the native law and custom applicable, and the question of what it may be in any particular area is usually a matter of difficulty and controversy.
We could not possibly find in the appellants’ favour on such a point not raised in the court below and not supported by any evidence.”

Davey, LJ., in Ramsay v. Margerett (1894) 2 QB 18 at page 27 dealing with this concept of possession by two persons each claiming different title and right to possession said:
“How does the question of possession stand upon principle In Littletown on Tenures, section 701, it is said:
“where two be in one house, or other tenements, and the  one claimeth by one title and the  other by another title, the law shall adjudge him in possession that hath right to have the possession of the same tenements.”
a passage has been read from a very learned work on possession (Pollock and Wright on possession in which the rule is thus stated (at page 24)
‘where possession in fact is undetermined possession in law follows the right to possess’
and  the following dictum of Maule, J., in Jones v. Chapman 2 Exhibit 803 at page 821 is cited:
‘It seems to me that as soon as a person is entitled to possession and enters in the assertion of that possession or which is exactly the same thing, any other person enters by command of the lawful owner so entitled to possession, the law immediately vests the actual possession in the person who has so entered. If there are two persons in a field, each asserting that the field is his and each doing some act in the assertion of  the right to possession and if the question is which of those two is in actual possession I answer, the person who has the title is in actual possession, and the other person is a trespasser.’

I find on record that the defendants have built on the land despite the warning given to them not to build and that the land belongs to Iposu family of which Kadiri Oniga was only the head. As the appellants chose to risk losing their houses if the Iposu family made a successful claim in the court they have only themselves to blame. They cannot prevent the family from claiming their land with the benefit of all the expenditure on it. If a person builds on the land of another knowing him to be owner thereof, there is no principle in equity which would prevent the owner from claiming the land with the benefit of all the expenditure on it. This rule of law was echoed by Cranworth, LC., over a century ago in the case of Ramsden v. Dyson (1866) LR. i HL. 129. It is still the law here and the customary law of Yoruba land enforces it rigidly.

A proprietor of land was not debarred from asserting his legal right against one who was shown to have infringed it on the ground of acquiescene unless it was clear that at the time he acquiesced, he was aware of his proprietory right. He does so justifiably where there is no evidence of acquiescene. See Armstrong v. Sheppard & Short Ltd. (1959) 2 QB 384.

The facts of that case go to show the extent to which the court will entertain a complaint of infringement of legal rights which were not known to the complainant at the time of their infringement. According to the headnote, the plaintiff owned a small piece of land at the rear of his premises on which the defendants had entered and constructed a sewer for the discharge of sewage and effluent. The plaintiff claimed damages for trespass and an injunction to restrain the discharge of effluent through the sewer.

He swore that he had never had any conversation with the defendants about the matter. The county court Judge found as a fact first that the plaintiff had orally informed the defendants that he did not object to the construction of the sewer and secondly that the plaintiff, when he so stated, was not aware that he was the owner of the strip of land or that he had a right to object to the construction of the sewer. The Judge awarded to the plaintiff – 20 shillings damages for trespass but refused to grant the injunction.
The plaintiff appealed and the defendants cross-appealed to the Court of Appeal. The appeal and the cross-appeal were dismissed. Dismissing the appeal, the court (Lord Evershed, MR., Willmer, LJ., and cassels, J.), held that a proprietor of land was not debarred from asserting his legal right against one who was shown to have infringed it on the ground of acquiescence, unless it was clear that at the time he acquiesced he was aware of his proprietory right and accordingly there was no equity which barred the plaintiff from asserting his legal title. The court relied on the cases of Ramsden v. Dyson (1866) LR 1 HL 129: Willmott v. Barber (1880) 15 Ch. D 96.

The court also held that if a man having a proprietory right proved an infringement of it, he was prima facie entitled to an injunction but that was not an unqualified right and the grounds for denying the injunction were:

(a) that the wrong done in the circumstances was trivial;
(b) that he not only misled the defendants but attempted to mislead the court and that on the facts the plaintiff had not proved any damage and should not be granted injunction.

Dismissing the cross-appeal, the court held:

(1)   that if A gives authority to B for the doing of an act on his land and the act is done and completed then whatever be the description of the authority, it is generally too late to complain and accordingly the plaintiff could not complain of sewer which had been constructed;
(2)  that a right to pass water through another’s land was an interest in land and  incapable of being granted by parol;
(3)  that an oral licence to pass water through another’s land  to be irrevocable during the licensor’s tenure of the land must have the necessary qualities of a contract and binding on the parties and be supported by consideration, and that there being no consideration for the licence granted by the plaintiff to the defendants the plaintiff was entitled to revoke the licence and on the fact the licence had been revoked.

Lord Evershed MR., delivering the judgment of the court said at page 296-397:

“first it is true to say that a proprietor will not be barred from asserting his legal right against one who is shown to have infringed it on the ground of acquiescene, unless it is also clear that at the time he did so acquiesce the proprietor was aware of his legal right………
Second, it is true to say that if a man having proprietory rights proves an infringement of that right, prima facie he is entitled to an injunction but that needs some qualification. It is not matter of a unqualified right and one ground for denying an injunction would be that the wrong done is in the circumstances trivial. That proposition is founded on the well known case of Imperial Gas light and Coke Co. (Directors) v. Broadhurst (1859) 7 HLC 600 but I summarise it by reading from Kerr on Injunctions 6th Ed. p. 30:

‘After the establishment of his legal right and of the fact of its violation, a plaintiff is in general entitled as of course to a perpetual injunction to prevent the recurrence of the wrong unless there be something special in the circumstances of the case such as laches, or where the interference with the plaintiff’s rights is trivial’.”

In the instant appeal, the plaintiffs established their legal right and its violation. The interference with the plaintiffs’ right of ownership and possession cannot by any stretch of imagination be classified as trivial as the deprivation of ownership and possession of the land was meant to be total and permanent. Further, there is a total absence of evidence of laches. The evidence accepted by the trial Judge establishes the contrary, i.e, it puts the appellants on notice that the land belongs to the family and that they should hands off.

It was for the above reasons and the reasons so well set out by my learned brother, Eso, J.S.C., that I dismissed the appeal on the 13th day of October, 1982.

A. NNAMANI, J.S.C.: On the 13th October, 1982, I dismissed this appeal and indicated that I would give my reasons for so doing today. I had a preview of the reasons for judgment just delivered by my learned brother, Kayode Eso, J.S.C., and I agree completely with those reasons. I would not have found it necessary to make any remarks were it not that after the original date for judgment we were further addressed on the point “whether the defendants (appellants) were trespassers qua the plaintiffs (respondents) having regard to the fact that it was Kadiri Oniga the head of the Iposu family who put them on the land in dispute”.

It is settled law that if a head of family alienates family land without the consent of the principal members of the family, the sale is voidable at the instance of any member of that family. see Raji Akano & Anor. v. Alhaji Yisan Ajuwon (1967) NMLR 7 at 10; Ekpendu v. Erika (1959) 4 FSC 79. The situation in the case in hand was slightly more complicated than this. The head of family at the material time, Kadiri Oniga, did not just sell the land in dispute as family land but as his private property. Besides, appellants did not purchase under any misconception that this was family land. It was rather their contention that the land in dispute was the private property of Kadiri Oniga which he had won in a suit No. 138/27. They pleaded as much in paragraph 8 of their statement of defence which has been set down in the lead judgment by my learned brother and need not be repeated here. Although this court in Dr. F. Akerele v. A.J. Atunrase & Ors. (1969) 1 All NLR 201 held the transaction of sale of family land in that suit void ab initio, it does appear that the vendor Aboki-Bada was just a member of the Alago-Asalu family. There is nothing to indicate that he was the head of that family at the time he sold the land in 1909. Indeed the head note to the case reads “Land -Sale of family land by member not on behalf of family is void not voidable -” Nevertheless, in the circumstances of this case, I think that the principle in the Atunrase’s case applies here for just as the descendants of Aboki-Bada claimed that the land was the private property of their ancestor, Kadiri Oniga claimed the land in dispute as his private property and sold it as such. Furthermore, the appellants kept insisting throughout that the land in dispute belonged to Kadiri Oniga. Kadiri Oniga had nothing to sell and the principle of Nemo dat quod non habet would apply with equal force here. The transaction of sale to the various appellants was void ab initio.

There is no doubt that Kadiri Oniga put the appellants on the land in dispute and that some of them, such as 3rd appellant, had been on the land for 10 years at the time of the dispute. If, however, the conveyance pursuant to which they came on the land was void ab initio,could they in relation to the true owners of the land be anything other than trespassers Mr. Abayomi said no, although neither he nor Mr. Afuye was able to support their positions with any authorities. In the Akano case (supra) this court attempted to discover the true position of the Head of the family vis a vis family land generally in our customary law. The learned Justices of the Supreme Court in that case thought he was certainly not an owner, nor was he a trustee. His position they thought perhaps, approximated to that of a manager. If Kadiri Oniga was “manager” of this land which was undoubtedly family land, he could not lawfully sell it to the appellants and their entry into it was unlawful. They were trespassers from the moment of entry into the land pursuant to the sale by Oniga. The true owners of the land was the Iposu family (respondents). Trespass is an unjustified intrusion into land in someone else’s possession. The respondents pleaded and led in evidence that the land in dispute had been in the possession of the Iposu family from 1851. Although it is not exactly on all fours with the instant case, it is settled that persons who go into occupation to take possession of family land by virtue of a transfer made by a family member without the consent of those members whose consent is necessary are trespassers- Onwuka v. Abriba City Council (1956) 1 ERLR 17.

Having been put on the land by Kadiri Oniga, could appellants be licensees, a licence being a defence to trespass “A dispensation or licence properly, passeth no interest, nor alters or transfers property in anything but only makes an action lawful which without it had been unlawful”, Thomas v. Sorrell (1674) Vaugham 330. For the reasons already advanced above, the appellants were not licensees either for they had to be on the land by the leave and licence of the owner and Kadari Oniga was not the owner of the land in dispute.

M. BELLO, J.S.C. (DISSENTING): The facts of the case in this appeal are not complicated but the problem posed is by no means a simple one. It has given me considerable anxiety. It has excited my sense of equity, justice and good conscience.

The Iposu family own vast areas of land in Epe village in the Lagos State. Between 1925 and 1968 when he died, Chief Kadiri Oniga was the head of the said family. During his life time he had been selling secretly the family land to strangers without the knowledge of the family. He sold to about 400 persons. In suit No. AB/17/59 decided by the High Court, Abeokuta, the family obtained against him a declaration that the three parcels of land specified in plans A, B and C made for that suit were family land and not his personal land. The judgment in that case is Exhibit C in the case in hand. The family advertised the effect of that judgment in the Daily Times of 18th April 1961, admitted as Exhibit A in these proceedings. Among the persons Chief Kadiri Oniga sold the family land as his own were appellants 1, 2, 3, 4 and 5 who were defendants 1, 3, 4, 7 and 8 respectively at the court of trial. The appellants put up substantial buildings on the land, which they have been occupying with their families for about 10 to 15 years before the trial of this case.

It is significant to refer to the evidence of the 1st Plaintiff that the respondents had not known that Chief Oniga had sold the land to the appellants until when they saw the appellants clearing the land and they warned the appellants about the land. Thereafter, the respondents did nothing until after the death of Chief Oniga when they demanded from the appellants for the payment of purchase price of the land. Upon the refusal of the appellants to make the payment, the respondents sued them for the recovery of the land. The trial Judge found the appellants to be trespassers and restrained them as such. The effect of the judgment, which was confirmed by the Court of Appeal, is that despite the delay in enforcing their right the Iposu family including the issues of Chief Oniga will enjoy the benefit of the clandestine sale of the land by Chief Oniga resulting to the improvements of the land made by the appellants. The appellants will have no remedy whatever because Chief Oniga is dead. They cannot recover even the purchase price of the land from any one. I shall deal with this aspect of the case extensively when I come to consider the issue of acquiescence.

The first question for determination is the validity of the sale of family land as his own by Chief Oniga without the concurrence or consent of the family. Is the sale void or voidable If it is void, the purchasers acquired nothing and are therefore trespassers. In such case they have to vacate the land unless the doctrine of laches and acquiescence can be invoked in their favour. On the other hand, if the sale is voidable, then they have been lawfully on the land and they have the right to remain thereon until the sale has been nullified by a court of competent jurisdiction.

It is pertinent to point out that contentious sale of family land may be classified under three heads. Firstly, the law has been well settled that sale of family land by a member of the family, who is not the head of the family, without the consent of the head of the family is void: See Ekpendu v. Erika (1959) 4 FSC 79, Oyebanji v. Okunola (1968) NMLR 221, Akerele v. Atunrase (1969) 1 All NLR 201 and Lukan v. Ogunsusi (1972) 1 All NLR (Part 2) 41. Such cases are not relevant to the case in hand.

Secondly, it is trite law that sale of family land by the head of the family without the consent of the principal members of the family is voidable at the instance of the non-consenting members of the family: See Esan v. Faro 12 WACA 135, Ekpendu v. Erika (supra), Aganran v. Olushi (1907) 1 NLR 67 and Mogaji v. Nuga (1960) 5 FSC 107. In all these cases, it has been accepted that the head of the family had sold the family land as such which is not the case in these proceedings.

The third category of contentious sale of family land is where the head of the family sold family land as his own, as in this case, without the knowledge and consent of the other members of the family. I have done exhaustive research to find out if there is a positive decision of this court or of the former West African Court of Appeal on this issue but in vain. The obiter dictum in Adedubu v. Makanjuola, 10 WACA 33 at 36, wherein the West African Court of Appeal stated:

“We must further point out that the conveyance in this case does not in its terms even profess to convey Bashorun Oluyole Family land but only certain hereditaments of which the vendors, a number of individuals, not in any representative capacity, were “seised in fee simple”. In this respect the conveyance differs from the sale agreement on which it was supposed to follow. The conveyance was ineffectual to convey to the defendant the legal estate in the family land and the question which still has to be decided in this suit is whether the agreement of sale of the family land had the consent of the family and so gave to the defendant an equitable right of occupation which would prevent the court granting the injunction sought or awarding damages for trespass.”
appears to me to be a reflection of English law rather than a requirement of native law and custom. Conveyance like receipt is unknown by native law and custom: See Cole v. Folami (1956) 1 FSC 66.

In Akano v. Ajuwon (1967) NMLR 7 at 9, this court rejected the argument of learned counsel that Adedubu v. Makanjuola 10 WACA 33 and Oshodi v. Aremu 14 WACA 83 had established that if the head of a family sold family land as his own, the sale was void. This court held that neither case really decided this point. The court further expressed the view that whether the head of a family professed to sell the family land as private owner or as head of the family was “a distinction which is perhaps not present to an unsophisticated mind”.

From the foregoing, in the absence of any other view to the contrary, I would take it to be the correct statement of the law that sale of family land as a private owner by the head of the family without the consent of the principal members of the family is void. The trial Judge quite rightly, in my view, found the appellants to be trespassers.

It now remains to consider the issue of acquiescence, laches and stale claim. In parenthesis, it may be pointed out that the defence of laches and acquiescence has for many years been applied to land cases subject to customary law: see Agaran v. Olushi (1970) (supra), Mogaji v. Nuga (Supra), Fiscian v. Ogunbiyi (1965) NMLR 395. On this issue the trial Judge found:

“Exhibit C shows that the plaintiff had been challenging the rights of Kadiri Oniga to the land and brought the action in Exhibit C which judgment was given in 1965 in 1959 (Sic). They also caused a warning notice, Exhibit A to be published in the Daily Times, a newspaper circulating all over Nigeria on the 18th day of April 1961. All the building plans tendered by the defendants in this action Exhibit E (1962) and (1963) were made after the litigation of 1959 and after the publication of 18th April 1961…..
I have no doubts in my mind that all the defendants went to the land and started buildings on it after they were aware of the claim by other members of the Iposu family……The plaintiffs wrote letters to warn those found building on the land.”

Stating their reasons for affirming the rejection by the trial court of the defence, the Court of Appeal observed:

‘The 1st respondent said they warned the appellants as soon as they saw them clearing the land before they started building. Also they took legal action against Kadiri Oniga concerning his dealing on the land (Exhibit C), published warning notice in the Daily times (Exhibit A) of 18/4/61. The court considered the defence of acquiescence, laches and stale claim, and found that they were not established by the appellants. He said after considering Exhibits C, A, the building plans Exhibit E:
“I have no doubt in my mind that all the defendants went on the land and started buildings on it after they were aware of the claim by members of Iposu family”.’
From the outset it may be observed that the Court of Appeal apparently omitted in their reasons to rely on the alleged letters written by the respondents warning the appellants about the land because the letters had not been produced in evidence at the trial and the evidence relating to them was therefore hearsay as the letters had not been proved: See Owodunni v George (1967) 1 All NLR 177 at 179. The trial Judge erred in relying on the alleged letters.
The appellants’ grounds of appeal in this court, inter alia, read:

“2. That the Federal Court of Appeal erred in law in confirming the Judgment of the lower court, on damages for trespass when

(a) The pre-requisite fact of possession by the plaintiffs/respondents was not established in accordance with the laid down principle of law.
(b) The act of possession on the part of the appellants for considerable period was not dislodged.

3. That the Federal Court of Appeal erred in law in confirming the order of the court below on injunction against the appellants on the grounds of
(a) Incompatibility; the claim of possession having been dismissed.
(b) The order is un-equitable and against natural justice to grant injunction against the defendants-appellants and teeming members of their families who had been proved to be on the land in dispute for a period of over 15 years before the action was instituted.
(c) The pleas and evidence by the Defence on laches, acquiescence and stale claim were established by preponderance of evidence against the plaintiffs/ respondents.”

Among the questions raised by learned counsel for the appellants in his written brief for determination by this court are:
“(iii) Whether Exhibit “A” which the learned trial Judge and the Federal Court of Appeal relied upon in dismissing the appellants’ defence of laches and acquiescence was pleaded by the plaintiffs.
(iv)   Whether the land  shown in Exhibit ‘C’ which the learned trial Judge and the Federal Court of Appeal relied upon in dismissing the appellants’ defence of laches and acquiescence was the land which the plaintiffs sued for according to Exhibit ‘B’.”
After he had drawn our attention to the evidence and the findings of the trial Judge, learned counsel submitted that the Court of Appeal was wrong to have upheld the findings of the trial Judge that the appellants’ defence of laches, acquiescence and stale claim were not established because of Exhibits A and C. In his reply, learned counsel for the respondents contended that the trial court and the Court of Appeal rightly determined the issue of the equitable defence.
On the issue of the 1959 case, Exhibit C, and the publication in the Daily Times, Exhibit A, I think this is a proper case where an appeal court is entitled to interfere with the  finding of facts by the trial court within the principles stated in Lawal v. Dawodu (1972) 1 All NLR (Part 2) 270 at 286 and Kakarah v. Imonikhe (1974) 4 S.C. 151.
For the correct appreciation of the situation, it is necessary to recall the pleadings of the parties and the  evidence adduced by them in support. In paragraph 13 of their Statement of Claim, the respondents averred that they would inter alia, rely on various judgments and in particular suit No. 138/27, IK/96/69 and AB/17/59. They did not produce any of the said judgments. The only evidence offered by them relating to previous judgment was where the witness for the  respondents, PW.1 said:

“We took action against Kadiri Oniga in respect of Iposu Family land. Our claim is that we were all formerly entitled to all Iposu Family land. Plans were filed in that case. The land now in dispute is in the middle of the land then in dispute.”

In answer to paragraph 13 aforementioned, the appellants averred:

“11. The defendants will contend at the hearing that suit AB/17/59 is not relevant to the land in dispute and that by the outcome of the judgment in that suit, the plaintiffs are estopped from laying claim to the land in dispute.” (underlining is mine).

In his testimony the witness for the appellants, DW. 1 said:

“I heard of the case that the plaintiffs instituted against Kadiri Oniga in 1959 at Abeokuta High Court in which they asked for a petition of the family estate. It is suit No. AB/17/59. (The judgment was tendered and admitted as Exhibit C.) The land in dispute in Exhibit C is not the same land as the land in dispute in this case.”

The 2nd witness for the appellants corroborated D.W.1 that the land in Exhibit C was different from the land in dispute in this case.

It is significant to observe that there were three parcels of land in Exhibit C for which declaration as family land was made in favour of the respondents against Chief Oniga. The three parcels were delineated in plans A, B and C made for that suit. The three plans have not been produced in evidence in these proceedings. None of the three plans has been married to the plan, Exhibit B, made by the surveyor (P.W.2) for this case. There is no evidence whatever showing that the land in dispute in this case falls within any of the three lands in plan A, plan B or plan C made for the suit AB/17/59.

In this respect, it is very significant to refer to the evidence of the respondents’ surveyor, P.W.2 who said:

“I saw a plan filed in respect of a 1927 case. That plan is the portion verged yellow in Exhibit B. It is suit No. 138/27 and it is shown on the plan Exhibit.”

The effect of this evidence is that the land in the 1927 case falls within the land in dispute in the present case. No such evidence has been adduced by the plaintiffs/respondents in respect of the land in the judgment, Exhibit C.

Furthermore, there is uncontradicted and irrebutted evidence of the 2nd and 3rd appellants, D.W.3 and D.W.4, that both appellants had purchased their portions of the land in dispute 20 years ago. That was to be counted from 10th September, 1974 being the date both appellants testified at the trial. It is therefore a matter of simple arithmetic that both had purchased the land in 1954, which was 6 years before the judgment, Exhibit C of 26th January 1961, was delivered. Its publication in the Daily Times, Exhibit A, was also in 1961.

It is also very important to note when P.W. 1 testified that the land in dispute in this case is in the middle of the land which was the subject matter of their claim against Chief Oniga, he did not say whether the claim was in suit 138/27 or in suit AB/17/59 (Exhibit C in these proceedings) or in suit IK/96/69 all of which, as averred in paragraph 13 of their pleadings, the respondents would rely. Even if this omission is resolved in favour of the respondents by assuming that P.W.1 had the suit AB/17/59, Exhibit C, in
mind in his testimony, the hurdle as to the middle of which of the three parcels of land, which were the subject matters of the suit AB/17/59, the land in dispute is situated remains still to be overcome.

The respondents woefully failed to prove within the middle of which of the three parcels in the 1959 case the land in dispute is situated.

With all due respect, it is inconceivable to me how on the face of the totality of the evidence a reasonable tribunal could conclude firstly, that the lands in the former case, Exhibit C, are the same as the land in dispute in the present case and secondly, that the appellants, particularly the 2nd and 3rd appellants, had notice through Exhibits C and A of the interest of Iposu family over the land in dispute at the time of purchase. Moreover, it can reasonably be inferred that the appellants had constructive notice of Exhibit C, such notice cannot be applied to defeat the defence of laches and acquiescence: Owodunni v. George (Supra).

In my considered opinion, upon the proper evaluation of the evidence relating to suit AB/17/59 and its publication in the Daily Times, the trial Judge ought to have found that the respondents as plaintiffs did not prove that the lands subject to the suit AB/ 17/59, Exhibit C, was the same land as the land in dispute and did not prove that the appellants had notice of such fact at the time of purchase. He also ought to have found that there is no evidence to infer such notice. Consequently, the trial Judge erred in concluding that the fact that the appellants had heard of the suit AB/17/59, that hearsay would impute notice on them that the judgment, Exhibit C and its publication in the Daily Times, Exhibit A, related to the land in dispute.

To summarise, the trial Judge based his finding that the appellants had notice, when they purchased the land, of the Iposu Family’s interest in the land on two premises, namely, the judgment in the suit Exhibit C and its publication in the Daily Times. I have held this finding to be unreasonable having regard to the evidence. The trial Judge also relied on unproved written warning when the appellants were about to commence building on the land. This finding of fact cannot also stand.

I may point out that P.W.1 testified:

“When we found the 1st defendant on our land, we challenged him. We wrote him a registered letter. We spoke personally to him. He told us that he bought the land from Kadiri Oniga.

We challenged all the other defendants. They all told us that they bought the land from Kadiri Oniga.”

On their part, all the five appellants testified at the trial of the case that when they entered into the land and built their house thereon, no one disturbed them.

The 1st appellant said he built his house within a year while it took 2nd and 3rd appellants 3 years and 18 months respectively to complete building houses. Though 4th appellant appears to be active by completing the building of his house within 3 months, the 5th appellant was not so agile as it took him 3 years to finish the first house and another year to complete building his second house.

It is of great significance to observe that throughout his judgment, the trial Judge did not advert his mind to the conflicting evidence adduced by the parties on the issue relating to the oral challenge of the appellants by the Iposu family. The trial Judge failed to assess the evidence and did not make any finding of fact therefrom to resolve the conflict. The Court of Appeal therefore misdirected itself on the fact in affirming the dismissal of the defence of acquiescence, laches and stale claim when that court stated in its judgment:
“The 1st respondent said they warned the appellants as soon as they saw them clearing the land before they started building.”
If the learned Justices of the Court of Appeal had the warning in writing in mind, that warning was not proved. If they had the oral challenge in mind, the trial Judge did not make specific finding on it.

Where a trial Judge fails to make a finding of fact on conflicting evidence adduced by the parties on an issue, the resolution of which is essential to the just decision of the case, the proper cause to be taken by an appeal court is to order a retrial unless the circumstances of the case do not warrant a retrial: See Mogaji v. Odofin (1978) 4 S.C. 91.
The authorities, such as Mogaji v. Nuga (Supra), Aganran v. Olushi 1 NLR 67, Owodunni v. George (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. However, if the owner promptly warns the stranger of the defect of his title as soon as he discovers the presence of the stranger on the land and, despite the warning, the stranger proceeds to develop the land, then the doctrine of acquiescence may not assist the stranger: Adeniji v. Ogunbiyi (1965) NML 395 and Morayo v. Okiade 8 WACA 46.

I would refer to the concept of doctrine of acquiescence, as stated in the classical cases of Ramsden v. Dyson (1866) LR 1 HL 129 at pp.140-141 by Lord Cranworth and in the judgment of Fry, J. in Willmot v. Barker 15 Ch. D 96 at pp. 105-106 which have been most frequently cited in our courts and upon which the decisions of our courts have been founded. Lord Cranworth expressed it thus:

“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 wilfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented. But it will be observed that to raise such an equity two things are required, first, that the person expending the money supposes himself to be building on his own land; and , secondly, that the real owner at the time of the expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner. For if a stranger builds on my land knowing it to be mine, there is no principle of equity which would prevent my claiming the land with benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights.”
Fry, J., stated it in these terms:

“A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of that description In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendants’ land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstaining from assertaining his legal right. Where all these elements exist, there is fraud of such a nature as will entitle the court to restrain the possessor of the legal right from exercising it, but, in my judgment, nothing short of this will do.”

I would venture to say that the concept of estoppel by acquiescence has developed over the past 20 years in England and has evolved a far wider approach. Today, it is essentially the application of a rule by which justice is done where the circumstances of the conduct and behaviour of the party to an action are such that it would be wholly inequitable to permit him to succeed in the proceeding: See Habib Bank v. Habib Bank (1981) 1 WLR 1265 at 1287 where at page 1285 the Court of Appeal of England endorsed the observation of Oliver, LJ., in Taylors Fashins Ltd. v. Liverpool victoria Trustees Co. Ltd. (1981) 2 WLR 576 at p. 593:

“Furthermore the recent cases indicate, in my judgment, that the application of the Ramsden v. Dyson, LR. 1 H L. 129 principle – whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial – requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour.”

I respectfully adopt the above principle as being the correct statement of the law.

In Lindsay Petroleun Co. v. Hurd (1874) L R 5 P C 221 at 239, Sir Barnes Peacock, stated the principles of the defence of laches in these terms:
“Now the doctrine of laches in Court of Equity is not an arbitrary or a 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 party 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 material. But in every case, if an argument against relief, which other wise would be just, is founded upon mere delay…..the validity if 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 in injustice in taking the one course or the other, so far as relates to the remedy.”
Citing with approval the above description of the defence of laches, the Privy Council said in Nwakobi v. Nzekwu (1964) 1 WLR 1019 at 1023:

“Where laches is in question, the issue is not so much the question what rights a plaintiff has as whether in any event his conduct has been such as to leave him in a position to invite the court to enforce them.”
In Taiwo v. Taiwo (1958) 3 FSC 80 at 82, this court said:
“Acquiescence does not bar a claim unless certain conditions are fulfilled. One of the most important is that the party who relies upon his opponent’s acquiescence must have been led by it to expend money or otherwise alter his position. There is nothing to show here that the plaintiffs or their predecessor-in-title, Rebecca, have been led to do anything of the sort by the defendants’ failure to assert their claim. However, the plaintiffs here do not rely upon bare acquiescence but upon acquiescence, over a long period; I should prefer to say that they rely on the defendants’ laches. Laches is not delay alone; some other factors must exist, or at least the delay must be such that the existence of some other factors may be inferred. Laches may be evidence of the waiver of a party’s right, but waiver is incomplete without consideration in some shape or form proceeding from the other party. There is no evidence of that here; neither the plaintiffs nor their predecessor in title here acted in any way upon the defendants’ failure to assert a claim to Rossanah’s share of the rents which they were taking.”

It is clear from the authorities that warning or lack of it may be crucial for the just decision of a case such as the case in hand. Although the trial Judge made no specific finding on the oral warning, I do not think the circumstances of this case justify an order for a retrial. I consider mere warning not conclusive. It is not the law that by mere warning the owner of a land can stand by and allow a person with a reasonable claim of title, though mistaken, in good faith to develop the land over the years and thereafter the owner expects the court to assist him to enforce his right over the land.

Now, reverting to the facts of the case, I would assume that the Iposu family had orally challenged the appellants as stated by P.W.1. From the very testimony of P.W.1., when they challenged the appellants, the appellants told the family that they had purchased from Chief Oniga, who was then the head of the Iposu family. Thereafter the Iposu family did nothing and knowingly allowed the appellants to build their houses on the land. The appellant did not do so hurriedly in order to plead hardship of being displaced as the developer in Adeniji v. Ogunbiyi (supra) had done. As I have shown earlier, except in the case of 4th appellant, the construction of their buildings took one to three years to complete and yet the respondents stood by and did nothing. The entire Iposu family did not only stand by but some of them got gainful employment as labourers in the construction of the houses. The 1st respondent, who appears to be the present head of the family attended the opening ceremony of the 3rd appellant’s house and blessed the occasion with prayers. To crown it all, the Iposu family permitted the appellants to enjoy the fruit of their labour without let or hindrance for periods ranging between 10 to 15 years before the family asked the appellants to pay for the land.

After the appellants had refused payment, the family instituted this suit ostensibly to recover their land but in reality to enjoy the fruits of their standing by. Furthermore, it must be appreciated that this is not the case of a squatter developing the land of another person despite warning. The appellants believed in good faith, and rightly in my view, that they had good title to the land. The fact that they were mistaken did not affect their reasonable belief. I may confess that I spent many days of research to find out the correct position of the appellants’ title under native law and custom. It was on that account that I appreciate more the remark of Bairamian, J.S.C., in Akano v. Ajuwon (Supra) concerning the distinction as to whether the head of a family professed to sell family land as private owner or as head of the family, which is the bone of contention in this case, to unsophisticated mind. The fact that the respondents asked the appellants to pay for the land after the death of Chief Oniga is evidence of subsequent assent to the infringement of their right as was the case in Aganran v. Olushi (Supra).

Finally, under the circumstances of the case, I consider it to be most unconscionable to permit the respondents to dispossess the appellants of their houses and to grant all these houses to the Iposu family including the children of Chief Oniga, who had sold the land to the appellants. To my mind, it is not doing justice to grant them these houses. It would be wholly inequitable to do so.

For the above reasons, with all due respect, I disagreed with the conclusion reached by my learned brothers that the respondents were not estopped by laches and acquiescence. In my opinion, the conduct of the respondents under the circumstances of the case is tantamount to laches and acquiescence and accordingly they ought to be estopped from enforcing their rights over the land in dispute. These are the reasons for my dissenting judgment.

Appearances