In The Supreme Court of Nigeria

On Friday, 13th day of July 1990

SC 86/1987

Between

Omolere Ikuomola                 .......            Appellant

And

Samota Oniwaya                   .......            Respondents

Nurudeen Oniwaya

Adegboyega Oniwaya

Judgment of the Court

Delivered by

Kawu. J.S.C.

On the 7^th day of May, 1990, I dismissed this appeal and reserved my reasons for the judgment till today, 13th July, 1990.1 now proceed to give the reasons.

The appellant in this appeal was defendant in an action instituted by the respondents in the High Court of Lagos State, Ikeja Judicial Division, claiming as follows:-

1       Declaration of title under Native Law and Custom to all that piece or parcel of land situate and lying and being at Onilekere Farm, Agege Ikeja Division Lagos State Nigeria.

2.     Possession.

Pleadings were ordered, filed and delivered.

The case for the plaintiffs in the High Court, as revealed by the amended Statement of Claim and evidence led thereon, is that the land in dispute originally belonged to Afogunlowo who made an absolute grant of it to Olowe, the father of Moriamo Osunyemi, several years ago. After the death of Olowe, the land devolved on Moriamo Osunyemi, his daughter, according to Yoruba Native Law and Custom. Moriamo was in possession of the land and farmed it, and this was long hefore one Abudu S. Jinadu moved to Oniwaya Road, Agege. When Jinadu came to Oniwaya Road, he rented the land in dispute from Moriamo Osunyemi by an agreement dated 26th April, 1946. Repaid a total sum of £2, 10/- (5.00) rent for four years. That agreement is Exh. PB in this case.

It would appear that subsequently Jinadu arranged for a surveyor to survey the land but Moriamo Osunyemi prevented the surveyor from doing so. She then wrote a letter to the Surveyor explaining why she had objected to the proposal to survey the land. That letter, dated 16th September, 1955, is Exh. PC in this case.

Three years after the death of Moriamo, it was discovered that Jinadu had sold the land in dispute. When he was challenged, he admitted selling the land and begged the plaintiffs to accept two other plots of land at Alimosho, Agege, in exchange for their mother's land which he had sold. In addition to that he also gave the plaintiffs £200. However when the plaintiffs got to the place where the two plots offered by Jinadu were said to be situated, they were driven out of the land by a woman who said that Jinadu had no land in the area. The plaintiffs reported back to Jinadu and subsequently instructed their Solicitor to write to Jinadu demanding the return of their mother's land (Exh. PE) They also returned the sum of £200 which Jinadu had given to them. They also wrote a letter to the defendant warning him that Jinadu, his vendor, had no land to convey to him as he had purported to have done. That letter is Exh.PF in this case. The defendant did not heed the warning.

The defendant's case is that he bought the land in dispute from A.S. Jinadu who executed a Deed of Conveyance in his favour, a certified copy of which he tendered (Exh. DG). He traced Jinadu's root of title to one Shitta Afogunlowo (2DW) who executed a Deed of Conveyance (Exh. DR) in his favour.

At the trial both parties gave evidence and called witnesses, in support of their respective claims. At the conclusion of the hearing, the learned trial Judge, Adeoba, J., in his judgment made some findings of fact on contested issues, as follows:-

I find that Afogunlowo granted the land in dispute to Olowe, I believe the evidence of the 2nd plaintiff and his witnesses on this point.

I also believe the evidence of the 2nd plaintiff that after the death of Olowe, Moriamo Osunyomi went on the land, cultivated it and later let it out to one A.S. Jinadu. I do not believe the evidence of the 2nd defendant's witness, Shitta Afogunlowo, who said that he did not know Moriamo Osunyomi on the land. There is overwhelming evidence on the record to show that Moriamo was on the land and exercised acts of ownership on it. I believe the 2nd plaintiff's evidence that his mother let out the land to A.S. Jinadu for 4 years.

I also believe the evidence of the 2nd plaintiff that he and others helped Moriamo to cultivate the land before it was let out to Jinadu. I believe the evidence of the 1st, 3rd and 4th P.Ws about the use to which Olowe and her daughter Moriamo Osunyomi put the land to.

I do not believe the evidence of the 2nd D.W., a son of Afogunlowo who said that he has never heard of the name of

Olowe or Moriamo Osunyomi, He is a liar and should not be believed on his oath. His evidence was only to protect himself after having jumped on the land to sell it to Jinadu.

Notwithstanding these findings of fact made in plaintiff's favour, the learned trial Judge dismissed their claims in their entirety. He stated the reasons for his decision as follows:

It is clear from the pleadings and the evidence that the plaintiffs have acquiesced in the possession and sale by Jinadu to the defendant and have exchanged their mother's land for two plots of land and £200:-. The plaintiffs cannot eat their cake and have it. If Jinadu reneged on his promise, the remedy of a declaration of title which is discretionary remedy is not the proper relief to seek.

He concluded that there was no need for him to consider in detail the defendant's case "as the plaintiffs have both in their amended statement of claim and their evidence destroyed the very basis of the relief they are seeking."

Being dissatisfied with the decision of the High Court, the plaintiffs appealed to the Court of Appeal, Lagos Division, on a number of grounds, and that Court, by the lead judgment of Kutigi, J.C.A., which was delivered on the 5th day of March 1986 and which Nnaemeka-Agu, J.C.A. (as he then was), and Kolawole, J.C.A, concurred, allowed the appeal and reversed the judgment of the High Court. This appeal is from that decision.

Four grounds of appeal were filed with the Notice of Appeal, and the first ground, without the particulars, complains:

1.     The learned Justices of the Court of Appeal came to a wrong conclusion and misdirected themselves in the lead Judgment when they held:

The transaction will therefore be incomplete even under British Law and unless a conveyance is executed in favour A of the purchaser by the vendor. In this ease neither the appellants nor Jinadu executed a conveyance nor handed over the land in the presence of witnesses to one another.

It was submitted on behalf 9f the appellant, in this ground of appeal, that the court below was in error when it held that the respondents had not' accepted another parcel of land in exchange for the land in dispute. In this regard reference was made to the respondents' amended statement of claim at page 119 of the record and the ‘respondents' oral testimony at p.75 lines 28 to 38 confirming the exchange transaction. With regard to the respondents' evidence relating to the offer of another piece of land by Jinadu in exchange for the land in dispute, if the learned counsel for the appellant had examined the whole of the evidence of p.w.5 on the issue, he would have found that although Jinadu did make an offer of another piece of land, the land offered was never handed over to the respondents. This was the evidence of p.w.5 at p.76 of the record where he testified as follows:

After a few days, we went on the land. We met a woman who drove us out of the land. She said Jinadu had no land there. She said the land belonged to her.

We went to made a report to Jinadu that a woman had driven us off the land he gave us as compensation of our mother's land. He did not say anything.

This witness was never cross-examined on this point and no rebutting evidence was adduced by the appellant on whether or not the land offered by Jinadu was actually handed over to the respondents. Where evidence adduced in support of an issue is not challenged under cross-examination, it is not right to disbelieve such evidence without giving sufficient reasons for doing so. Akibu v. Opaleye and Anor. (1974) I All N.L.R. 344. No reasons were given in the judgment for disbelieving the respondents' evidence on this issue. In my view, therefore, the Court of Appeal was right in its conclusion that the exchange transaction was incomplete as there was no evidence of the handing over of the land by Jinadu to the respondents in the presence of witnesses - See Cole v. Folarin (1956) l F.S.C. 66; [l959] SCNLR 180.

As to whether the respondents returned the £200 paid to them by Jinadu, it was the appellant's contention that this had not been proved by the respondents as they had failed to call as a witness Yesufu Oniwaya through whom the money was sent to Jinadu. But the evidence before the court. which had not been controverted, is that the said Yesufu Oniwaya was dead.

The substance of the complaint in the second ground of appeal is that on the evidence adduced, it cannot be said that the respondents had satisfactorily established their root of title to the land in dispute. It cannot be said that the respondents had satisfactorily established their root of title to the land in dispute. It was contended that while the respondents averred in paragraph 4 of their amended Statement of Claim that the land in dispute was granted absolutely to Olowe, the father of Moriamo Osunyemi, the evidence of p.w.3 - Jimoh Obasanya is that "Olowe is a tenant of Afogunlowo who owned the whole land including Dopemu". It was the submission of learned counsel for the appellant that since there was this gap in the line of succession, the trial court ought to have rejected the respondents' claim on this issue, and in support of this submission he cited the case of O.K.O Mogaji v. Cadbury Nigeria Limited & Ors. (1985) 2 N.W.L.R. (Pt.7) 393.

As to the respondents' root of title, they averred in their amended Statement of Claim that Afogunlowo was the original owner of the land, which he granted absolutely to Olowe, the father of Moriamo. These averments were fully supported by the evidence adduced at the trial. The learned trial Judge gave very careful consideration to the totality of the evidence adduced and came to the conclusion, rightly in my view, at p.140 of the record that it was the original owner of the land, Afogunlowo, who made an absolute grant of the land in dispute to Olowe. He accepted the evidence of the 2nd plaintiff on the point. That finding of fact, on the issue, was affirmed by the Court of Appeal. There have therefore been two concurrent findings of fact of the respondents' root of title, and, as these findings have not been faulted by the appellant, this court will not normally re-open such an issue. See Ogunsola Ajadi & Anor. v. Ladunni Okenihun (1985) 1 N.W.L.R. (Pt.3) 484 at 495 and Dawodu v. Danmole (1962) 1 All N.L.R. 702. This court will only interfere with the finding of fact on an issue where it is satisfied that on the evidence adduced the finding is patently wrong - See Onowan & Anor. V. Jserhien (1976)1 N.M.L.R. 263.I see no substance in this complaint.

It was argued in the third ground of appeal that in view of the provisions of the Land Use Decree 1978, the Court of Appeal was in error when it granted to the respondents a declaration of title under native Law and Custom In of this regard reference was made to the provisions of Sections 5 and 6 the Decree. This point was rightly conceded by learned counsel for the respondents who made reference to the provisions of Section 40 of the Land Use Decree and rightly invited us to exercise our powers under 5.22 of the Supreme Court Act 1960, and vary the judgment of the lower court so as to reflect the provisions of the Land Use Decree 1978.

Now, section 40 of the Land Use Decree reads:-

Where on the commencement of this decree proceedings had been commenced or were pending in any court or tribunal (whether at first instance or on appeal) in respect of any question concerning or pertaining to title to any land or interest therein, such proceedings may be continued and be finally disposed of by the court concerned but any order or decision of the court shall only be as respects the entitlement of either of the parties to the proceedings to a right of occupancy, whether statutory or customary, in respect of such land as provided in this decree.

It is plain from the provisions of S.40 of this Decree that with effect from the date of the commencement of the enactment (29th March, 1978) courts could only grant a declaration that a party, in a claim for declaration of title, entitled to a statutory or a customary right of occupancy, depending on where the land is situated. Consequently I agree with the submission that the declaration granted by the Court of Appeal was erroneous. Accordingly, in the exercise of the powers conferred on this court by Section 22 of the Supreme Court Act, 1960, 1 hereby vary the order and declare that the respondents are entitled to apply for a certificate of occupancy in respect of the land in dispute.

Finally it was contended on behalf of the appellant in the fourth ground of appeal that the Court of Appeal was wrong to have held that the defences of laches and acquiescence raised by the appellant could not be sustained.

Now the evidence at the trial, and which was not challenged, was that some three years after the death of Moriamo, as soon as the respondents observed that somebody was on their mother's land, they made an enquiry and discovered that it was Jinadu who had sold the land to the appellant. They promptly challenged him and he admitted doing so. He then promised to offer them another parcel of land in exchange for their mother's land, which he had sold, and also a sum of £200. When the respondents visited the parcel of land offered by Jinadu they discovered Jinadu was not its owner. They then returned the £200 given to them and wrote a letter to Jinadu (Exh.PE). They also wrote to the appellant warning him that Jinadu was not the owner of the land, which he had purportedly sold to him. On these facts, can it be said that the respondents had been guilty of laches and acquiescence? My answer is in the negative. The essence of the equitable doctrine of acquiescence is that if a land owner stood by when a stranger developed his land in good faith without the owner appraising the stranger the defect of his title, such owner would be stopped from reaping the benefit of such development, and a court of equity would not assist him in enforcing his right - See O. Solomon & Ors. v. A.R. Mogaji & Ors. (1982)11 S.C. 1 at pp.25-32. If, how-ever the owner promptly warned the stranger of the defect of his title, as the respondents clearly did in this case, and despite the warning the stranger E continued with the development of the land, the doctrine would not assist him - See Morayo v. Okiade 8 W.A.C.A. 46. In this case, the Court of Appeal was, in my view, absolutely right when it held, per Kutigi, J.C.A. that -"on the facts and circumstances of this case as a whole the appellants cannot be said to have acquiesced in the possession and sale by Jinadu." I see no merit in this ground of appeal.

In my view none of the grounds of appeal filed and argued was weighty enough to justify our interfering with the decision of the Court of Appeal.

Judgment delivered by

Uwais. J.S.C.

I have had the opportunity of reading in draft the reasons for judgment read by my learned brother, Kawu, J.S.C. Those were the reasons for which I dismissed this appeal, on the 7th day of May, 1990 with N500.00 costs to the respondents. I therefore adopt the said reasons as mine. In exercise of the powers under section 22 of the Supreme Court Act, 1960 the Order of declaration granted to the respondents by the Court of Appeal is hereby varied to read –

the respondents, as plaintiffs, are hereby granted a declaration to a right of occupancy on the land in dispute in accordance with the provisions of Section 40 of the Land Use Act, 1978.

Judgment delivered by

Karibi-Whyte. J.S.C.

On the 7th May, 1990, I summarily dismissed the appeal of the appellants and indicated that I will give my reasons today.

I have had a preview of the judgment of my learned brother Kawu, J S.C. in this appeal, I agree entirely with his reasons that this appeal should be dismissed. I too will dismiss it and hereby dismiss the appeal.

This is an appeal against the judgment of the court of Appeal which reversed the judgment of the trial Judge for dismissing the action of the plaintiffs for a declaration of title under native law and custom to all that piece or parcel of land situate and lying at Onilekere Farm Agege, in Ikeja Division, and for possession.

The facts of the case have been very fully stated in the judgment of my learned brother Kawu, J.S.C. I adopt them. I shall concern myself with the findings of fact of the learned trial Judge, the judgment of the Court of Appeal reversing the decision, and the appeal against that judgment now before us.

In his judgment in which he dismissed the claim of the plaintiffs, the learned trial Judge found Afogunlowo granted the land in dispute to Olowe. He also found as a fact that after the death of Olowe, Moriamo Osunyomi took possession of the land, cultivated it and later let it out to one A. S. Jinadu. It was also found as a fact that Moriamo Osunyomi was on the land and exercised acts of ownership in respect of it. It was also found as a fact that Moriamo Osunyomi let out the land in dispute to A.S. Jinadu for 4 years. The learned trial Judge believed the 2nd plaintiff that he and others helped Moriamo to cultivate the land before it was let Out to Jinadu. He also believed the 1st, 3rd and 4th plaintiffs witnesses about the use to which Olowe and Moriamo put the land to.

On the other hand, the learned trial Judge disbelieved the 2nd witness to the defendants, Shitta Afogunlowo, who said that he did not know Moriamo Osunyomi on the land. He also did not believe 2nd D.W. a son of Afogunlowo who said that he had never heard of the name.of Olowe or Moriamo Osunyomi.

It is on these findings and impressions of the veracity of the witnesses who gave evidence before him that he came to the following conclusion disF missing the claims of the plaintiffs on the following reasons –

It is clear from the pleadings and the evidence that the plaintiffs have acquiesced in the possession and sale by Jinadu to the defendant and have exchanged their mother's land for two plots of land and £200: - The plaintiffs cannot eat their cake and have it. If Jinadu reneged on his promise, the remedy for a declaration of title which is a discretionary remedy is not the proper relief to seek.

The Court of Appeal allowed the appeal and reversed the judgment. The defendants have now appealed to this court against the judgment of the Court 6f Appeal. There are excluding particulars as follows –

1      The Learned Justices of the Court of Appeal came to a wrong conclusion and misdirected themselves in the lead judgment when they held:

The transaction will therefore be incomplete even under British Law and unless a conveyance is executed in favour of the purchaser by the vendor. In this case neither the appellants nor Jinadu executed a conveyance nor handed over the land in the presence of witnesses to one another.

2.     The Learned Justices of the Court of Appeal erred in law and on the facts in setting aside the judgment of the learned trial Judge and held in favour of the respondents on question of title to land under Native Law and Custom.

3.     The Learned Justices of the Court of Appeal erred in law in entering a judgment of declaration of title under Native Law and Custom in favour of the respondents.

4.     The Learned Justices of the Court of Appeal erred in Law and on the facts when they held that the defence of laches and acquiescence raised by the appellant in his pleadings and brief of argument could not be sustained."

The following issues for determination have been formulated-

3.1   Whether or not the respondents had by accepting the sum of £200.0s.0d (N400.00) and two plots of land from Jinadu acquiesced in the sale of the land of the respondents' mother to a third party (i.e. the appellant).

3.2    If the Honourable Court answers this question in the affirmative, whether or not the respondents could be permitted to rescind from a contract that had been duly executed for valuable consideration.

3.3    Whether or not following the understanding between the respondents and Jinadu and the exchange of the land mentioned at 3.1 above the land in dispute became properly vested in Jinadu by virtue of the incidents of Yoruba Native Law and Customs in exercise of which title Jinadu alienated the said land in dispute to the appellant as evidenced by the Deed of Transfer dated 7/3/72 admitted at the trial court as Exh. DG and contained at pages 153-159 of the Records of Appeal which deed is registered as No.28 in Volume 1385 of the Lands Registry, Lagos.

3.4    Whether or not the trial Judge who had the first hand opportunity of listening to oral evidence adduced by both parties including the admission made by the respondents by their pleading and on evidence as to the exchange of land for £200.0s.0d. (N400.00) was right and correct in holding and concluding that the respondents had not adduced satisfactory evidence to make the declaratory order sought by the respondents.

3.5   Whether or not the court below based on all the above was correct in setting aside the judgment of the trial court as to whether or not the respondents had refunded the sum of £200:0s:0d (N400.00) earlier obtained from Jinadu in exchange for the land of the respondents' mother forming the subject matter of this appeal, pages 237-238 of the Records of Appeal refers.

3.6    Whether or not the exchange of the land in dispute with the sum of £200:0s:0d (N400.00) was properly repudiated or could be legally repudiated by the respondents.

3.7    Whether or not having regards to the evidence adduced the respondents successfully discharged the burden of proving their title to the land in dispute.

3.8    Whether or not having regards to section 36 of the Land Use Decree No.6 of 1968 the court below is justified in law in granting declaration of title to land under Native Law and Custom.

After the argument of learned counsel to the appellants who relied on his brief of argument, we did not call upon counsel to the respondent to reply. We relied on his brief of argument.

The first ground of appeal was a criticism of the view that the transaction between the parties was incomplete in the absence of the execution of a conveyance in favour of the purchaser by the vendor. "In this case neither the appellants nor Jinadu executed a conveyance nor handed over the land in the presence of witnesses to one another."

Counsel to the appellants submitted that the court below was in error in holding that the respondents had not accepted another parcel of land in exchange for the land in dispute. Counsel referred to the oral testimony at p.75 lines 28 to 38 as to the exchange transaction.

It seems to me learned counsel had not critically examined the oral evidence in question. If he had he would discover from the testimony of P.W.5 that although Jinadu made an offer of a piece of land in exchange, it was never handed over to the respondents -See p.76 of the record of proceedings. The Court of Appeal was therefore right on this evidence to conclude that the exchange transaction was incomplete. - See Cole v. Folarin (1956)1 F.S.C. 66; [1956] SCNLR 180. The return of the £200 paid to respondents by Jinadu was through Yesufu Oniwaya who is now reported dead. This evidence remains uncontroverted.

It was counsel's submission on the second ground of appeal that respondents cannot claim to have satisfactorily established their root of title. It was contended that since the land was granted absolutely to Olowe the father of Moriamo Osunyemi, and the evidence of PW3 is that Olowe is a tenant of Mogunlowo who owned the land including Dopemu, there was a gap in the line of succession. The trial Judge ought to have rejected respondents' claim on the issue. He relied on Mogaji v. Cadbury Nigeria Ltd. & Ors. (1985) 2 N.W.L.R. (Pt.7)393.

I think learned counsel would seem to have ignored the specific findings of fact of the learned trial Judge which have remained unchallenged. The averment in the statement of claim supported by oral evidence was that Mogunlowo the original owner of the land in dispute granted the land absolutely to Olowe, the father of Moriamo. The findings of fact of the learned trial Judge about the exercise of possession and ownership in respect of the land by Moriamo Osunyomi, have been affirmed by the court of Appeal. There have been therefore two concurrent findings of facts on the respondents root of title. Appellant has not adduced any reasons why this court should interfere with these findings. I am satisfied that the findings are correct and justified. See Henry Stephens Eng. Ltd. v. Complete Home Enterpiises Ltd. (1987)1 N.W.L.R. (Pt.47) 40; Okonkwo v. Adigwu (1985)1 N.W.L.R. (Pt.4) 694.

The third ground of appeal involved the application of the Land Use Act 1978. The Court of Appeal granted a declaration of title under Native Law and Custom, when under section 40 of the Act it could only grant a statutory or customary right of occupancy. Learned Counsel to the respondents conceded the error and invited us to exercise our powers under section 22 of the Supreme Court Act, 1960 and vary the judgment of the court below.

I think the criticism is justified and the concession understandable. In the circumstances, and in the exercise of powers under section 22 of the Supreme Court Act, 1960, I hereby vary the declaration granted by the Court of Appeal to read "a declaration to a statutory right of occupancy.

On the 4th ground of appeal the Court of Appeal's refusal to allow the defences of laches and acquiescence raised by the appellant was challenged. I think that on the evidence before the learned trial Judge which remains unchallenged, respondents took action as soon as they observed encroachment C on their mother's land. This was within three years of their mother's death. It was their enquiry that disclosed that the land was sold to appellant by Jinadu. Jinadu admitted and promised to give them an alternative land in exchange for their mother's land. He also gave them the sum of £200. On discovery that Jinadu was not the owner of the land he had promised in exchange for their mother's land, they resiled from the arrangement, returned the £200 and proceeded to take action to recover their mother's land.

The approach of the appellants can hardly be described as standing by and knowingly by inaction acquiescing when there is an adverse dealing in respect of the land. - See Solomon v. Mogaji (1982) II S.C. 1 Aganran v. Olushi 1 N.L.R. 61. There is evidence in this case that respondents promptly warned appellant, that Jinadu was not the owner of the land he sold to him. In such a situation the doctrine of laches and acquiescence will not apply -See Adeniji v. Ogunbiyi (1965) N.M.L.R. 395; Morayo v. Okiade 8 W.A.C.A. 46. Respondents have not acted in any way to induce belief or give the impression that they would forgo their rights to the appellant or Jinadu. Appellant who wants to rely on acquiescence cannot say that he was induced by the conduct of respondents to expend money in respect of the Land in dispute. He can therefore not rely on the defence - See Taiwo v. Taiwo (1958) 3 F.S.C. 80 at 82; [1958] SCNLR 244; Nwakobi v. Nzekwu (1964)1 W.L.R. 1019.

The Court of Appeal was therefore right to hold that respondents cannot be said to have acquiesced in the possession and sale by Jinadu of the land in dispute.

I have found no merit in this appeal. The foregoing are my reasons for dismissing the appeal.

Judgment delivered by

Agbaje. J.S.C.

 On 7th May, 1990 I dismissed this appeal summarily. I indicated then that I will give my reasons for doing so today. I now proceed to do so.

I have had the opportunity of reading in draft the lead reasons for judgment just delivered by my learned brother Kawu, J.S.C. I agree entirely with his reasoning and I adopt it as mine.

Judgment delivered by

Wali. J.S.C.

On the 7th May, 1990, I summarily dismissed this appeal after hearing learned counsel's oral submissions in elaboration to their writ-ten briefs and reserved my reasons for doing so to today. I now proceed to do so.

I have had the advantage of reading in advance the reasons for judgment of my learned brother, Kawu, J.S.C., I entirely agree with them and respectfully adopt same as mine.

Appeal dismissed.

Counsel