OLANIYI ORELUSI v. SADIKU LANLEHIN & 3 ORS.
(2011)LCN/4596(CA)
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of June, 2011
CA/I/86/2004
RATIO
ESTOPPEL BY CONDUCT: WHAT THE RULE OF ESTOPPEL BY CONDUCT ENTAILS
A convenient start is to determine Estoppel by conduct, its operation under the law. The law is that where one by his words or conduct willfully causes another to believe the existence of certain things and induces him to act on that behalf so as to alter his own previous position, the former is precluded from averring against the latter a different state of things as existing at the same time. This is the Rule in Estoppel by conducts otherwise known as estoppels by matters in pais. See: – Gregory Ude vs. Clement Nwara & anor. (1993) 2 NWLR (Pt. 278) 638; Nsirim vs Nsirim (2002) 2 S.C (Pt. 1) 47; Buhari vs. INEC (2008) 12 S.C. (Pt.1) 1. PER SIDI DAUDA BAGE, J.C.A.
ESTOPPEL: APPLICATION OF ESTOPPEL
In juxtaposing the arguments of the parties, and the decision trial court, Estoppel under the law must once more be examined. In Evans vs. Bartlam (1937) 2 All ER. 646 at Page 653 it was held. “Estoppels are personal to the parties, it can only be used to prevent the opposite party or his privy from denying the effect of the act or judgment pleaded as estoppel. An estoppel cannot bind those who were not parties or privies. In other words they do not bind third parties or the whole world and therefore cannot confer or establish title or a legal right contra mandamus.” Also in Simm vs. Anglo American Telegraph Co. (1879) 5 Q.B.D. 188 it was held “An estoppel gives no title to that which is the subject matter estoppel,” In Nigeria, the case of Adesina Oke & anor vs. Shittu Atoloye & Ors (1986) 1 S.C. 422 at pages 454-455 Oputa JSC (as he then was stated: “An estoppel is binding on the parties and not on the realty (in this appeal not on the land itself”) Again per Oputa JSC (as he then was) in Mrs. G.A.R. Sosan & ors vs. Dr. M.B, Odemuyiwa (1986) 5 S.C. 152 at 157 stated: – “I agree that estoppels are in the main a defensive weapon and not an offensive, to use the language of naval warfare, an estoppel must always be either a mine layer or a mine sweeper, it can never be a capital unit.” PER SIDI DAUDA BAGE, J.C.A.
ESTOPPEL BY CONDUCT: CIRCUMSTANCES UNDER WHICH THE DOCTRINE OF ESTOPPEL BY CONDUCT CAN OPERATE AND APPLY
In the case of Olalekan vs. Wema Bank PLC (2006) 13 NWLR (pt. 998) 617 at 625 – 626 paragraphs H – G (referred), the Supreme Court held that the doctrine of estoppels by conduct operates and apply in the following circumstances:” (a) If a man by his words or conduct willfully endeavours to cause another believe in certain state of things, which the first know to be false and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is stopped from averring ‘afterwards that such a state of things does not exist at the time. (b) Also, if a man either in express terms or by conduct, makes representation to another of the existence of a state of facts which he intends to be acted upon in a certain way in the belief of the existence of such a state of facts, to the damage of him who so believes and acts the first is estopped from denying the existence of such a state of facts. (c) Thirdly, if a man, whatever his real meaning may be, so conduct himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was a true representation of facts and the letter was intended to act upon it in a particular way, and he with such belief does act in that way to his damage the first is estoppel from denying the facts as represented”. The Supreme Court further at page 625 paragraphs F – H as follows: “Estoppel is an admission or something which the law treats as equivalent to an admission of an extremely high and conclusive nature that the party whom it affects is not permitted to aver against it or offer evidence to controvert it.” PER SIDI DAUDA BAGE, J.C.A.
PLEADINGS: WHAT THE PLAINTIFF MUST PLEAD IN AN ACTION OF ESTOPPEL BY CONDUCT
The case of Bafta vs. Odili is quite apposite in the circumstance of the case (2001) 15 NWLR (Pt. 737) 709 at pp 741-742 paragraph H-C, it was held as follows:- “In pleading estoppels by conduct, it is not just enough to plead the actual conduct of the defendant which the plaintiff relies upon as constituting the representations made by the defendant to the plaintiff, The plaintiff must go on to plead the acts of detriment of the plaintiff which he (the plaintiff) did in reliance on the defendant’s representation.” PER SIDI DAUDA BAGE, J.C.A.
ESTOPPEL: WHETHER ESTOPPEL CAN BIND THOSE WHO WERE NOT PARTIES OR PRIVIES
This court stated earlier in this judgment that the rule is, an estoppel cannot bind those who were not parties or privies. See: -Evans vs. Bartlam (supra), and Simm vs. Anglo American Telegraph Co. (supra). PER SIDI DAUDA BAGE, J.C.A.
ESTOPPEL BY CONDUCT: WHAT AN APPLICANT MUST SHOW FOR A PLEA OF ESTOPPEL BY CONDUCT TO SUCCEED
On the part of this court, the law is already settled that for a plea of estoppels by conduct to succeed the applicant must show that the respondent either by word or conduct has intimated that he consents to an act which has been done and will offer no opposition to same. See: – Sanusi A. Alade vs. Olalere Akanji Alemuloke (1988) 2 S.C. (Pt. 1) 1 at pp. 14 – 15 per Oputa JSC (as he then was). PER SIDI DAUDA BAGE, J.C.A.
ESTOPPEL: GENERAL PRINCIPLE INVOLVED IN THE DEFENCE OF ACQUIESCENCE, LARCHES AND STANDING-BY AND WHAT MUST BE SHOWN FOR THE PRINCIPLE TO APPLY
Now let me consider the general principle involved in the defence of acquiescence, larches and standing-by. All these are spices of the genus know as estoppel and the general rule as to estoppel by silence and standing-by is that a man either by word or conduct has intimated that he consents to an act which has been done and that he will offer no opposition to it although, it could not, have, been lawfully done without his consent and thereby induced others to do that from which they might otherwise have obtained. He cannot afterwards question the legality of the act he has so sanctioned to the prejudice of those who given faith to his words, or to the fair inference to be drawn from his conduct. For this principle to apply it has to be shown and proved that the party against whom these 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, as been altered to his prejudice or detriment or that he has been induced by the other party?s in action to expand money. PER SIDI DAUDA BAGE, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
OLANIYI ORELUSI Appellant(s)
AND
SADIKU LANLEHIN & 3 ORS. Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Owoade J, (as he then was) in Suit No. 1/818/90 OLANIYI ORELUSI VS. SADIKU LANLEHIN & 3 ORS delivered on the 6th of July 1999. The plaintiffs’ claim as endorsed on the Writ Summons is as follow: –
(a) Declaration that the Lanlehin’s family are the owners under native law and custom and entitled to the statutory right of occupancy of all that piece or parcel of land situate, lying and being at Odo-Ona Elewe, Oleyo Road, Ibadan more particularly described and delineated on survey Plan No. LAY/DO/12/90 drawn by L.A. Animashaun Licensed Surveyor attached to the statement of claim.
(b) The sum of N5,000:00 (Five thousand Naira only) being special and general damages for trespass committed by the defendant and his servants by entering unto the land and bulldozing crops and physical structures erected thereon between January and October, 1990.”
(c) Perpetual injunction restraining the defendant, his servants, agent, privies and his vendors and/or anyone claiming through or on his behalf from committing any further acts of trespass on the land.
Briefly, the facts culminating in this appeal are as follows: –
The Respondents being the plaintiffs at the trial court as per their pleadings and evidence, based on original settlement, possession and act of ownership. The plaintiffs filed their statement of claim called seven witnesses and tendered Exhibit ‘A’ plan of the land in dispute, Exhibit ‘B’ certified true copy of judgment in Suit No. 1/456/75 between Bolarinwa and Lajide, Exhibit ‘C’ certified true copy of judgment in Suit No. 1/258/81 between Orelusi and Funso Odeleye and Exhibit ‘D’ certified true copy of Ruling in the committal proceedings in Suit No. 1/258/81 between (defendant) and Madam Mofiamo Lanlehin (2nd Defendant) & 5 ors.
The defendant by his pleading and evidence based on purchase from Oduleye’s family, who also based their title on settlement, acts of ownership and Long possession. The Defendant also filed an amended statement of defence, called seven witness ‘F’ tendered Exhibit ‘E’ (his deed of conveyance) and Exhibit ‘F’ (a counter plan). The main thrust of the Defendants, defence in paragraphs 15-21 and paragraph 35 were facts raising equitable defence of estoppel by conduct and acquiescence. The Trial Court in its judgment found for and granted the claims of the Respondents. Dissatisfied with the judgment, the Appellant filed a Notice of Appeal dated 13th day of August, 1999 at pages 154 -155 of the record, containing 3 grounds of appeal. The Appellant also filed an Amended Notice of Appeal dated the 21st March, 2005 and filed on the 17th of May, 2005. Arising from the Seven (7) Grounds of Appeal contained in the Appellants Amended Notice of Appeal, the following three issues were determination as follows, at page 3 of the Appellants Brief of Argument viz:-
(1) Whether or not the Learned Trial Judge was in error in rejecting the defence of estoppel by conduct raised by the Appellant? This issue covers ground 1 and 5 of the amended ground of Appeal.
(2) Whether or not the learned trial Judge’s evaluation of evidence is wrong and inadequate and has led to a wrong conclusion in granting the declaration sought and thereby occasioned a miscarriage of justice and his decision should be set aside? This issue covers grounds 2, 3, 4, 6 and 7.
(3) Whether or not this is a Proper case in which the Court of Appeal should interfere with the findings and conclusions of the learned trial judge for wrong appraisal of evidence, set aside his Judgment, refuse declaration over the area verged ‘Yellow in Exhibit ‘A’ over which the Appellant has proved acquiescence against the Respondent (this issue covers ground 6 and 7 of the amended grounds of appeal)
On the part of the Respondent, the following three (3) issues were formulated for the determination of the appeal
(1) Whether the rejection of the defence or plea of estoppel by conduct by the trial Judge was valid.
(2) Whether the evaluation of the evidence by the learned trial Judge was inadequate and improper and has led to a miscarriage of Justice.
(3) Whether any ground (s) exist over which the court of Appeal .9an interfere in the finding and conclusions of the trial court and grant declaration over the area verged “Yellow” in ‘Exhibit ‘A’ over which the Appellant proved acquiescence.
In the determination of this appeal, this court is guided by the issues formulated by the Appellant.
In arguing issue one (1) learned counsel to the appellant submitted that, the error on the part of the trial judge in rejecting the appellant’s defence of estoppel by conduct by way of acquiescence and standing by the Appellant provided facts and circumstances sufficient to constitute ingredients which will support a defence of estoppel by conduct or acquiescence. The plaintiff and members of their family, had acknowledge these activities, and acquiesced by doing nothing to uproot the sign post or the challenge or warn the defendant or object to his various acts of ownership for upward of fifteen years, the learned trial judge should have held that as regards the part of the land in dispute occupied by the Appellant the plaintiffs have acquiesced, in his occupation and are stopped from recovering the land from him or that it never belonged to the Respondents. See: – Ohumkwelu vs. Okunke (1999) 15 SCNJ 44/52; Aboyeji vs. Momoh (1994) 4 NWLR (Pt. 141) 646.
Learned counsel submitted further that the cases above relied upon by the trial court, are distinguishable on the facts with the present appeal, because the issue of acquiescence was not considered in them and are therefore irrelevant in this appeal. The cases will not apply to the peculiar facts and circumstances of this case because of the acquiescence of the respondents. It will be further contended ,that it would have been a different thing if the Respondents have proved that the Appellant had previously knowledge of their title as in the case of Morayo vs. Okiade (1941) 8 WACA 46. On this contention See: – Fagbemi vs. Odunade (1978) 3 SC 129 at 137, also the opinion in HALSBURYS LAW OF ENGLAND VOL. 45 paragraph 1395 at page 743. In other words, if the owner acquiesced, he will be precluded by his conduct from asserting that the land belongs to him. To defeat, the plea, the trespasser must have deliberately entered the land with the knowledge of the title of the ownership of the land.
Learned counsel submitted further that the correct principle of Law is that if a person enters land supposing it to be his own and the owner perceived his mistake, abstained from setting him right and left him to persevere in his error, a court of equity will not allow him afterwards to assert his title to the land on which the trespass had expanded money on the supposition that the land was his own. See Ramson vs. Dyson (1866) LR 1 HL 129, 140, 141 cited with approval in A.G TO PRINCE OF WALES vs. COLON (1916) 2 KB 203; THOMAS VS HOLDEN 12 WACA 78 at 80; OKE & ANOR VS ATOLOYE & ORS (1986) 1 SC 422; OWODUNNI VS GEORGE (1967) ALL WLR 188; ATUANYA VS ONYEJEKWE (1975) 3 SC 161; Also section 151 of the Evidence Act.
Learned counsel submitted further that, the ground upon which the learned trial judge rejected the second contention of the Appellant is not well founded because in the first place the fact as pleaded is sufficient notice of the allegation constituting estoppel. In the second place it is not in all cases that full details with -particularity should be given. The Appellant will rely on correct principle as stated in the case of CHINWELU vs. MBAMALI (1980) NSCC 127 applied in EZENWANI VS. ONWORDI (1986) NSCC AND followed by Court of Appeal in MOBIL PRODUCING UNLIMITED VS. ASUAH (2002) FWLR (Pt 107) 1197 at 7224.
Learned counsel submitted further that assuming for the purpose of argument without necessary conceding the title of Appellants, that a mistake has been made on the part of the Appellant, but there is evidence that he had exercised acts of ownership on the land with knowledge on part of the Respondents of Appellants’ Long Occupation of the Land and evidence of conduct, on the part of the Respondents, showing abandonment of their right by standing by. There is also the fact of the Respondents’ failure to explain their in actions. It is therefore taken separately or together the facts relied upon have sufficiently raised a case of estoppel by acquiescence in the Defendants’ favour, capable of extinguishing the claims of the plaintiffs.
In his reply to these submissions of the Appellant, learned counsel to the Respondents submitted that paragraph 35 of the amended statement of defence at the trial, court of the Appellant did not establish a defence of estoppel by conduct.” By no stretch of imagination can one say that this pleading, a defence of estoppel by conduct,, is expected to be proved through evidence. See Clay Ind. (Nig) Ltd vs Aina (1997) 8 NWLR (Pt 516) 208 at 229 paragraphs G-H.
Learned counsel further submitted that while estoppels by record or deed or estoppel per, Rem judicata must, be specifically pleaded as such, it is enough in a plea of estoppel by conduct to plead facts that are sufficient to support the inference of the rule. See – BCCI vs. D. Stephens Ind Ltd (1992) 3 NWLR (Pt. 232) 232) 772 at 778; Chinedu M. vs. Mbamli & Ors (1980) S.C 31.
Learned Counsel further submitted that, the evidence of DW8 does not amount to that will constitute estoppel by conduct. This is not an admission strong enough to establish estoppels. By the evidence of this witness, who is the Appellant Moriamo Lanlehin (the 2nd Respondent) had denied the ownership or title of the Appellant’s vendors at some point in time to the knowledge of the appellant himself; It is noteworthy that DW5 the star witness and husband of 2nd Respondent did not give evidence in corroboration of the assertion of the appellant. See: Olalekan vs Wema Bank Plc. (2006) 13 NWLR (Pt. 1998) 617 at 625-226 paragraphs H-G.
Learned counsel submitted further that in the circumstances of this case, that it is only the conduct of the head of family which could have amounted to an estoppel. The conduct of a family member, particularly a female member cannot be relied upon to bind the other members of the family with respect to anything said on the land in dispute.
Learned counsel submitted further that from the facts of this case, the pleadings and the evidence led before the trial court, the Respondents are not caught by the principle of estoppel by conduct and are not guilty of acquiescence in this case. See: Adeniran vs. Alao (2001) 18 NWLR (Pt. 745) 361 at 391-392 paragraphs G-B 409 paragraph E-H, 410 paragraphs E-F; Anyaorah vs. Anyaorah (2001) 7 NWLR (Pt. 711) 58 at 185 paragraph H-A; Baffa vs. Odili (2001) 15 NWLR (Pt. 737) 709 at pages 741-742 paragraphs H-C
In examining this issue; argued by the Appellant, and respondent, to wit, whether the trial court was in error when it rejected the appellant’s defence of estoppel by conduct by way of acquiescence and standing by. A convenient start is to determine Estoppel by conduct, its operation under the law. The law is that where one by his words or conduct willfully causes another to believe the existence of certain things and induces him to act on that behalf so as to alter his own previous position, the former is precluded from averring against the latter a different state of things as existing at the same time. This is the Rule in Estoppel by conducts otherwise known as estoppels by matters in pais. See: – Gregory Ude vs. Clement Nwara & anor. (1993) 2 NWLR (Pt. 278) 638; Nsirim vs Nsirim (2002) 2 S.C (Pt. 1) 47; Buhari vs. INEC (2008) 12 S.C. (Pt.1) 1.
At the trial court the appellant tend credence to this equitable relief, the defence or plea of estoppel by conduct against the Respondent on certain valid points. The Appellant in his evidence maintained: –
(a) That he caused signposts to be placed on the land for about three years before he purchased the land in dispute.
(b) He remained in undisturbed possession from 1975 to 1990 i.e. a period of fifteen years.
(c) The 2nd plaintiff was present when the land was being sold as Oduleye’s family land.
(d) He erected beacons round the boundary of the said land in 1975.
(e) There was litigation between Mr. Odeleye pw5 and the Appellant over a portion of the land in dispute in this case over which the appellant succeeded at the trial court.
The Respondents in their reply; raised certain points to counter the position of the appellant viz: –
(a) Paragraph 35 of the amended statement of defence did establish a defence of estoppels by conduct,” By no stretch of imagination can one say that by this pleading, a defence of estoppel by conduct is expected to be proved through evidence.
(b) While estoppels by record or deed or estoppels per Rem judicata must be specifically pleaded as such, it is enough in a plea of estoppel by conduct to plead facts that are sufficient to support the inference of the rule.
(c) The evidence, of the 2nd Respondent Moriamo Lanlehin does not amount to what will constitute estoppel by conduct
(d) From the fact of this case, the pleadings and the evidence led before the trial court, the Respondents are not caught by the principle of estoppel by conduct and are not guilty of acquiescence in this case.
The trial court in its judgment at page 152 of the records the 4th paragraph stated:
“I do not see how paragraph 35 of the evidence of DW8 quoted above, created an estoppel as against the plaintiffs. This not because estoppel must be specifically or specially in all cases being a matter of law but because at all times the other party must be given sufficient notice with full detail and specificity of the allegations constituting estoppels. It is for this reason that, a plea of estoppels must always be drafted with great care and particularly in consonance with this view, the Supreme court held in the case of Alakija vs. Abdulai (supra) cited by Mr. Ogunkola that it is not necessary to plead estoppels in any particular was long as the matters constituting estoppel are stated in such a matter to show the party pleading relied upon it as a defence or answer whether taken separately or together paragraph 35 of the Amended statement of defence and the evidence of DW8 on the contract of the 2nd Plaintiff”
In juxtaposing the arguments of the parties, and the decision trial court, Estoppel under the law must once more be examined. In Evans vs. Bartlam (1937) 2 All ER. 646 at Page 653 it was held.
“Estoppels are personal to the parties, it can only be used to prevent the opposite party or his privy from denying the effect of the act or judgment pleaded as estoppel. An estoppel cannot bind those who were not parties or privies. In other words they do not bind third parties or the whole world and therefore cannot confer or establish title or a legal right contra mandamus.”
Also in Simm vs. Anglo American Telegraph Co. (1879) 5 Q.B.D. 188 it was held
“An estoppel gives no title to that which is the subject matter estoppel,”
In Nigeria, the case of Adesina Oke & anor vs. Shittu Atoloye & Ors (1986) 1 S.C. 422 at pages 454-455 Oputa JSC (as hr then was stated:
“An estoppel is binding on the parties and not on the realty (in this appeal not on the land itself”)
Again per Oputa JSC (as he then was) in Mrs. G.A.R. Sosan & ors vs. Dr. M.B, Odemuyiwa (1986) 5 S.C. 152 at 157 stated: –
“I agree that estoppels are in the main a defensive weapon and not an offensive, to use the language of naval warfare, an estoppel must always be either a mine layer or a mine sweeper, it can never be a capital unit.”
From the evidence before this court, the claim of the Appellant is that he bought the land in dispute from the Oduleye’s family. The respondents in this appeal are for themselves and representing the Lanlehin’s family.
The appeal before is not against in particular any one of the four respondents listed, but against in particular any one of the four respondents listed, but against the Lanlehin’s family who sued at the lower court as plaintiff. The four respondents were the representatives of the Lanlehin family’ It is thus very clear that any equitable relief sought i.e. the defence or plea of estoppel by conduct must be directed or obtained against the Lanlehins’ family, and not an individual member of the family. We have considered already in this appeal that, “An estoppel gives no title to that which is the subject matter of the appeal, see: – Simm vs. Anglo American Telegraph Co. (supra). Also “An estoppel is binding on the parties and not on the realty (the land itself) See:- Adesina Oke & anor vs. Shittu Atoloye & Ors (supra). The law is very clear that estoppels cannot operate against the land itself. The next stage is whether the acquiescence of one family member can bind the entire family to bring in the operation of estoppels by conduct against the entire family. The Appellant as defendant at the lower court by a motion on Notice dated the 9th of September, 1998, at page 104 of the record, sought for an order of the trial court to inset a new paragraph 35 after the existing paragraph 34. The amendment was granted without objection. The said paragraph 35 formulated read thus: –
“35 The defendant say that the 2nd plaintiff accompanied his vendors when he was being shown the land covered by deed of conveyance 49/49/1877.”
In furtherance of this pleading made the paragraph 35 of the Amended statement of defence, the Appellant in his evidence in Chief at page 88 lines 25 – 28 of the records stated as follows:-
“Moriamo Lanlehin the wife of DW5 was one those who pointed out the piece of land sold to me as belonging to their family but later she joined the Lanlehins’ saying the land belonged to her family.”
The evidence before the court is that Mariamo Lanlehin, the (PW2), is the wife to DW5, who gave evidence in favour of the appellant. A member of the Oduleye’s family, who gave evidence of the sale of the disputed land by the Oduleye’s family to the appellant.
In the case of Olalekan vs. Wema Bank PLC (2006) 13 NWLR (pt. 998) 617 at 625 – 626 paragraphs H – G (referred), the Supreme Court held that the doctrine of estoppels by conduct operates and apply in the following circumstances:
(a) If a man by his words or conduct willfully endeavours to cause another believe in certain state of things, which the first know to be false and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is stopped from averring ‘afterwards that such a state of things does not exist at the time.
(b) Also, if a man either in express terms or by conduct, makes representation to another of the existence of a state of facts which he intends to be acted upon in a certain way in the belief of the existence of such a state of facts, to the damage of him who so believes and acts the first is estopped from denying the existence of such a state of facts.
(c) Thirdly, if a man, whatever his real meaning may be, so conduct himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was a true representation of facts and the letter was intended to act upon it in a particular way, and he with such belief does act in that way to his damage the first is estoppel from denying the facts as represented”.
The Supreme Court further at page 625 paragraphs F – H as follows:
‘Estoppel is an admission or something which the law treats as equivalent to an admission of an extremely high and conclusive nature that the party whom it affects is not permitted to aver against it or offer evidence to controvert it.”
From the evidence of Appellant at the trial court, Moriamo Lanlehin (PW2) accompanied her husband DW5 of the Oduleye’s family to point out the piece of land sold to the Appellant by Oduleye’s family, can this action of the PW2 qualify as an admission of extremely high and conclusive nature as required by the supreme court to serve as an Estoppel to the Lanlehins’ family. From the records there is no evidence stated that at the time PW2 acted in the company of member’s, of Oduleye’s family she did so on or behalf of the Lanlehin’s family. Put in another way, there is no evidence from the records to show that the PW2 had the authority of the Lanlehin’s family, on that fateful date to so act as a pointer to land in dispute. The evidence only showed her then in company of Odulaye’s family and her husband the PW5 a member of that family, she was in company of was entirely an affair of the Oduleye’s family. If later she joined the Lanlehin’s family saying the land belongs to her family, her action cannot be by any stretch of imagination be said to be binding on the Lanlehi’s family, to bring the operation of estoppel by conduct on the Lanlehins’. The case of Bafta vs. Odili is quite apposite in the circumstance of the case (2001) 15 NWLR (Pt. 737) 709 at pp 741-742 paragraph H-C, it was held as follows:-
“In pleading estoppels by conduct, it is not just enough to plead the actual conduct of the defendant which the plaintiff relies upon as constituting the representations made by the defendant to the plaintiff, The plaintiff must go on to plead the acts of detriment of the plaintiff which he (the plaintiff) did in reliance on the defendant’s representation. This is what pleading estoppels with particularity connote in the instant case, much as the Respondent pleaded the conduct of the Appellant constituting the representations made to them by the Appellants they did not plead the acts of detriment of the Respondents did in reliance on the Appellants appeal is bound to fail.”
On this authority, alone the plea relied upon by the Appellant in this appeal is bound to fail. Paragraph 35 of his Amended statement of defence says:
“The 2nd plaintiff accompanied his vendors when he was being shown the land covered by Deed of Conveyance 49/49/1817”
The Appellant pleaded no more. Even if and that is not the evidence before this court, the PW2 stood or presented herself as the representative of the Lanlehin’s family, the pleading of the circumstance by the Appellant was inadequate. The Law requires the Appellant to proceed and plead acts of detriment of the Respondent (PW2) which the respondent did in reliance on the Appellants Representation. The pleading on PW2, done by the Appellant was inadequate, and does not in any way affect the Lanlehin’s family. This court stated earlier in this judgment that the rule is, an estoppel cannot bind those who were not parties or privies. See: -Evans vs. Bartlam (supra), and Simm vs. Anglo American Telegraph Co. (supra).
Turning now to the other aspects argued by the Appellant on the defence or plea of estoppels by conduct. To establish the Appellant’s claim to this plea, he argued:-
(a) He caused a signpost on the land for about three years before he purchased the land in dispute.
(b) He remained in undisturbed possession between 1975 to 1990 i.e. a period of fifteen years.
(c) He erected beacons round the boundary of the said land in 1975.
Both the Respondent and the trial court rejected these points as availing the appellant in his defence or plea of estoppel by conduct.
On the part of this court, the law is already settled that for a plea of estoppels by conduct to succeed the applicant must show that the respondent either by word or conduct has intimated that he consents to an act which has been done and will offer no opposition to same. See: – Sanusi A. Alade vs. Olalere Akanji Alemuloke (1988) 2 S.C. (Pt. 1) 1 at pp. 14 – 15 per Oputa JSC (as he then was).
Now let me consider the general principle involved in the defence of acquiescence, larches and standing-by. All these are spices of the genus know as estoppel and the general rule as to estopel by silence and standing-by is that a man either by word or conduct has intimated that he consents to an act which has been done and that he will offer no opposition to it although, it could not, have, been lawfully done without his consent and thereby induced others to do that from which they might otherwise have obtained. He cannot afterwards question the legality of the act he has so sanctioned to the prejudice of those who given faith to his words, or to the fair inference to be drawn from his conduct. For this principle to apply it has to be shown and proved that the party against whom these 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, as been altered to his prejudice or detriment or that he has been induced by the other party’s in action to expand money”.
One of the most respected jurists, of our time, Oputa JSC, has said all; he left nothing to chance, in dealing with this subject. One might just need to add that in the peculiar circumstances of this appeal, the appellant I had still maintained that the land in question which he bought belonged to the Oduleye’s family which the did not, raised the plea of estoppel by conduct against. He maintained, and still do that the land does not belong to the Lanlehin’s family. If that remains the position of the Appellant, the defence of estoppel by conduct as eloquently expounded by Oputa JSC; in Alade vs. Alemuloke (supra) cited above, and is completely misplaced by him. The Appellant has/no place in the defence or plea of estoppels against the Respondents. Issue one (1) is resolved in favour of the Respondents.
In arguing issue 2 on whether proper evaluation of the evidence was carried out by the trial court, and the correctness of the findings and conclusions of the learned trial judge, learned counsel to the Appellant submitted that with regards to the evidence PW1 the registered land survey who tendered Exhibit ‘A’ the plaintiff’s plan in support of the Appellant’s evidence that he erected the sign-posts and discredited the plaintiff’s evidence, which denied the act and existence of the sign-post. It shows that the learned trial judge did not consider the plan and his evidence of this witness critically; if he did he would not have accepted the evidence of PW8 in it’s entirely and would have found the evidence of the Appellant and his witnesses truthful.
Learned counsel submitted further that, with respect to PW2 a member of Moganna’s family called to testify as to boundary men to land in dispute verged RED in Exhibit ‘A’, the learned trial judge failed to make a specific findings of fact on his admission under cross-examination, that one Oladejo is a boundary man to his family which evidence if properly considered tended to support the Appellant’s vendor’s ownership and possession of the land in dispute.
Learned counsel further submitted that the PW3 a boundary man and Mogaji of kure’s family. His evidence is most unreliable. He does not know the extent of the land claimed by the respondent or the land actually in dispute. He cannot describe the boundaries of the land in dispute when asked to do so he started to describe the boundary men to his family’s land and, in so doing, he claimed Alabi Korukoru as his family boundary man, whereas Alabi Korukoru’s family land is far apart to Kure’s land according to plaintiff’s plan, Exhibit ‘A’.
Learned counsel submitted further that on, pw4 la civil servant who tendered Exhibit ‘B’, ‘C’ and ‘D’ the learned trial Judge did not comment of Exhibit ‘C’ and its effect on this case as discrediting the case of the plaintiff for standing by or as supporting the Defendants case for establishing his title to part of the land in dispute.
Learned counsel submitted further that on, pw5 legal practitioner who, gave evidence as boundary, man, the learned trial judge did not critically examined his evidence because, notwithstanding the lapses, in his evidence, the learned trial judge accepted his evidence in its entirety and, without any examination.
Learned counsel submitted further that the PW6 is a purchaser from Alhaji Ladipo Bamidele, the learned trial judge did not examined her evidence properly or at all. He glossed over pieces of evidence which are capable of discrediting her and which support the Appellant. He failed to test her veracity of her earlier testimony in Exhibit ‘E’. If he did, he would have discovered that she lied about the time she bought the land and about the time she built her house on it. And on the other hand, that the Appellant told the truth when he said “I did not find any structure belonging to Mojoyin Makinde, on the land I bought”. This is at page 89 lines 9-10 and the date on his deed of conveyance confirmed that the Appellant actually bought the land in 1975.
Learned counsel further submitted that on PW7, the learned trial judge relied on his evidence to find for the Respondents on the issue of acts of long possession and ownership of the land in dispute, when such finding cannot be made having regard of their occupation of the land in dispute verged yellow which is less than 8 years,
Learned counsel submitted further that on PW8, the learned trial judge also glossed over evidence, capable of discrediting the evidence of plaintiffs and their witnesses by failing to draw the proper inference from his admission that he visits the land in dispute regularly, and must have been able to see what’s was going in the land or what is being done by strangers on the land, by holding that the Respondents knew or ought to have known that the Appellant was on the land in dispute during the fifteen years he was in occupation and that they are not actual and true owners of the land in dispute or in possession of the area verged yellow in Exhibit ‘A’.
Learned counsel submitted further that the findings of the learned trial judge and in particular when he said, I have no doubt in my in my mind that the story of the plaintiffs is more probable than that of the Defendant and that the evidence of the, 3rd plaintiff and his witnesses are generally consistent and truthful are perverse and should be disturbed.
Learned Counsel submitted further that, all the findings by the learned trial judge on the defendants and his conclusion are erroneous, not justified and are not based on proper evaluation of evidence before the, court and are accordingly perverse and should be set aside.
Learned counsel submitted further that, from all indications it is clear that the case of the defendant did not receive the treatment it deserved in the hands of the learned trial judge by his failure to consider the evidence of the Defendant and his witnesses properly in his judgment. If he did, he would have discovered that some of these witnesses’ evidence was not challenged on vital and important issues and neither were they inconsistent or discredited as to warrant general condemnation as untruthful.
Learned counsel to Respondent in his reply submitted that, the Respondent before the trial court led copious evidence to establish their claim and title over the land in dispute as recognized by a long line of authorities. The trial court received evidence from several witnesses that established the claim as related in the statement of claim of the Respondents. The trial court in its judgment reviewed extensively both the case, of the Respondents and Appellant. The Trial Court relied on the evidence led by the parties before coming to his conclusion.
Learned counsel further submitted that the submission of the Appellant about improper and inadequate evaluation of the plaintiffs witnesses evidence done in their argument of issue No. 2 are baseless and grossly erroneous, on the contrary the consideration and assessment of the evidence of defence witnesses by the trial judge is above reproach.
Learned counsel submitted that the respondents in this case have discharged the onus placed on them to establish their claim and title to the land in dispute. The respondents as rightly held by the learned trial judge were able to trace their history by giving credible historical account of how they got to the land and the various acts of possession carried out by them on the land, It is significant to note as the learned trial judge did that the Appellant was not supported by the evidence of any boundary men. The trial court also rightly held that no evidence of settlement by the progenitor of DW5 was led in court.
Learned counsel further submitted that the DW4 the surveyor under cross- examination testified when asked to indicate where the Lanlehin’s family land is situated confirmed that it was the area east of portion is verged “Blue” on Exhibit F. The portion verged BLUE” is the area also verged “YELLOW” in Exhibit ‘A’ which is the; area comprised in the Deed of conveyance Exhibit ‘E’.
Learned counsel submitted further that there is no doubt that appellant in Exhibit C i.e. the judgment is Suit No. 1/258/81 had admitted that substantial portion of the land which he is now claiming in this suit belong to Lanlehin’s, family. This is the area DW4 explained under cross-examination lying to the east of portion verged Blue on Exhibit ‘F’ and yellow on Exhibit ‘A’, which belongs to the respondents. There is therefore a consensus that, the area belongs to the respondents. DW5 in his evidence stated that this vast area was given to the appellant when the appellant succeeded in his case against Funso Odeleye PW5.
Learned counsel further submitted that this court should accept and rely on the evidence of PW5 when he stated that the case in Exhibit C had been sent back for retrial. And once this unchallenged evidence is accepted, it means that the title derived through Exhibit ‘E’ is not unimpeachable interestingly, the appellant is not even canvassing this position. The appellant in this case is only trying to elevate acts of trespass into acts of possession.
Learned counsel submitted further that this court in cast of Maune vs Adbul (2001) 4 NWLR (pt. 702) 95 at pages. 108 – 109 paragraphs G-D considered the application of the rule in Mogaji vs. Odoti (1978) 4 S.C, 97. The trial court correctly assessed the evidence of both parties and ascribed probative value to the testimony of the witnesses before coming to a final conclusion. See also Basil vs. Fajebe (2001) 11 NWLR (pt. 725) 592 at pages 608-609 paragraphs G-D.
In determine this second issue, the first point for consideration is the attitude of appellate to findings of fact of trial court. In the celebrated case of U.B.N PLC VS Scpok (Nig). Ltd. (1998) 12 NWLR (Pt. 578) 439 at 449 ratios 19, Onalaja, JCA (as he then was) stated:
“An appellate court is loathed and does not ordinarily form the habit of disturbing the finding of fact by the trial court unless such finding is perverse. In the instant case the trial court was right in its invocation of the Bills of Exchange Act and rightly applied it to the facts of the Case and that the respondent was an holder being an holder, it had the locus standi to institute the action. Being a finding of fact, the court of Appeal will not interfere. See Ebba Vs Ogodo (1984) 1 SCNLR 372; Carlen (Nig.) Ltd. Vs. Unijos (1994)1 NWLR (pt. 323) 637; Beluonwa vs. Isokariari (1994) 7 NWLR (pt, 358) 587; Nwokoro vs. Nwosu (1994) 4 NWLR (Pt. 337) 172.
As to amount to a perverse judgment which may call for the intervention of the appellate court, see: – Ukatta vs. Ndunaze (1997) 4 NWLR (pt. 499) 257 at 276 where in it was stated: –
“A perverse judgment is one that was persistent in error, different from what is reasonably required, or against the weight of evidence”
Also see Ndili vs. Akinsumade (2000) 8 NWLR (pt. 668) 39 at 334; Atolagbe vs. Sharun (1985) 1 NWLR (Pt. 2) 360; Adimora vs. Ajupo (1988) 3 NWLR (Pt. 80) 1 at 16; Oyelakin vs Oyelakin (2003) 27 WRN 127; Zaki vs. Magayaki (2002) 15 WRN 154; Uka vs. Irolo (2002) 12 MJSC 47; Felix Abidoye vs. Oba Jacob Alawode (2001) 3 S.C. 1.
The trial court at page 149 of the records in its judgment stated as follows: –
“Now, in assessing the evidence adduced by parties in this case and in putting the two sides on an imaginary scale of justice as I am bound to do, I have no doubt in my mind that the story of the plaintiffs is more probable than that of the defendant and that while the 3rd plaintiff and his witnesses are generally consistent and truthful I found out the defendant and more especially his witnesses are not truthful. The plaintiffs described the extent of their land with Exhibit ‘A’ the plaintiffs called the PW2 Lasisi Alabi from the Mongana’s family, PW3 the Mogaji of Kure’s family and PW5 Funso Odeleye a more recent boundary man to them to prove their portion of land holding as described Exhibit ‘E’. The plaintiffs did not stop at that they called PW6 and PW7 to demonstrate their hold of long, possession and ownership of the land in dispute and more importantly the case of plaintiffs was rounded up the extensive evidence of the traditional history of how his family got the land in dispute”
This court has carefully gone through the dispute judgment. It is a duty incumbent on the Appellant to show by way of proof how perverse this judgment is. The Appellant is to establish whether in the course of the judgment the trial judge had persisted in error, different from what is reasonably required, or that the judgment was given against the weight of evidence. The record before the court showed that in the judgment in dispute, equal and ample opportunity was given to both the plaintiff and defendants, now Appellant and, Respondents. Witnesses were called testified and cross-examined, Exhibits were tendered admitted and examined. At the end the trial judge placed the two evidences on an imaginary scale before arriving at his decision. This court has not found what amounts to perversity in this judgment of the trial court. Evaluation of the evidence was done by trial court from the evidence before the court. Evaluation simply means the assessment of evidence so as to give value or quality to it. See: – Onwuka vs. Ediala (1989) 1 NWLR (pt, 96) 182 at 208; Chief Niyi Akintola vs. Buraimoh L. Balogun & Ors (2000) 1 NWLR (pt. 642) 532 at 549.
Again I wish to stress by saying that confirmation of the concurrent findings of fact by this court of the decision of the court below is compelling in the sense that it is an avowed and age long judicial policy in this country that the evaluation of evidence called at the trial, the ascription of probative values to them and making primary findings on them are matters within the province of the court of trial which has the singular advantage or is pre-eminently placed of hearing the witnesses testify and watching their demeanours. See: – Balogun & Ors Vs. Alimi Agboola (1974) 1 All NRL (Pt. 2) 66; The Military Governor of Western State vs. Afolabi Lanibe & anor (1974) 1 All NLR (Pt.2) 179.
For this reason, there is a presumption that a trial judge’s decision on facts is correct a presumption which must be displaced by a person who seeks to upset the decision if he can, an appellate court on its part in such a case should always be reluctant to interfere or to substitute its view of the fact for those of the court of trial. see: Ajao vs. Ajao (1986) 5 NWLR (Pt. 45) 802; and Kponugio vs. Adja Kodaja (1933) 2 WACA 24.
On the whole therefore, I do not find any reason before this court to disturb the finding and the evaluation of the evidence by the trial court’ which resulted into its conclusion in granting the declaration sought in favour of the Respondents. I have not seen any case of miscarriage of justice this decision of the trial court had occasioned to warrant this court to set it aside. Issue No. 2 in this appeal equally resolved in favour of the Respondents.
On issue No. 3, whether or not this is a proper case in which the Court of Appeal should interfere with the findings and conclusions of the learned trial judge for wrong appraisal of evidence, set aside his judgment, refuse declaration over the area verged ‘Yellow’ in Exhibit ‘A’ over which the appellant has proved acquiescence against the respondent.
The resolution by this court of issues No. 1 and 2 of this appeal has adequately covered the arguments proffered in issue No. 3, and thus rendering the latter a mere academic exercise.
On the whole therefore, having resolved issues 1 and 2 in favour of the Respondents and against the Appellant, this appeal lacks merit and it is hereby dismissed.
The judgment of Owoade J, in Suit No, 1/818/90 delivered on the 6th of July, 1999 is hereby affirmed by this court,
No order as costs.
STANLEY SHENKO ALAGOA, J.C.A.: I read in draft the judgment of my brother S. D. Bage (J.C.A.) just delivered. He has comprehensively dealt with the issues in this appeal and I am in complete agreement with him that the appeal lacks merit and should be dismissed. I dismiss same and affirm the Judgment of Owoade J. in Suit No. 1/818/90 delivered on the 6th July 1999 while making no order as to costs.
MODUPE FASANMI, J.C.A.: I had the advantage of reading in advance the lead judgment of my learned brother S.D. BAGE J.C.A.
I agree entirely with the reasoning and conclusion reached therein. I adopt same.
The appeal lacks merit it is accordingly dismissed. The judgment of OWOADE J. in suit no I/818/90 delivered on the 6th of July 1999 is hereby affirmed by me.
Appearances
Akeem Agbaje (with O. Benson (Mrs))For Appellant
AND
O. Ogunkeye (with C. A. Talabi)For Respondent
