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SUIT NO. SC 416/1965

3PLR/1967/11  (SC)
















A. Lardner and Oyefeso – for the Appellants(Plaintiffs)

Chief F.R.A Williams – for the Respondents



[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]



Civil Action – Practice and procedure – Claim for declaration of title – Defendant with an equity in the land created by owner’s acquiescence – Appropriate order.



BRETT, J.S.C. (Delivering the Judgment of the Court):

In this case the plaintiffs for themselves and for and on behalf of the Ojuwoye Community of Mushin claimed a declaration that the Community are the absolute owners under native law and custom of a piece of land off Agege Motor Road, Mushin, damages for trespass, an injunction to restrain further trespass and possession of the land. The defendant pleaded that he became the fee simple owner of the land by virtue of a deed of conveyance executed by certain persons who turned out also to be members of the Ojuwoye Community and that he had entered on the land, cleared it, and expended a sum of about £5,500 in erecting substantial buildings on the land without any indication of the interest of the plaintiffs on the land.


The trial judge held it proved that the Ojuwoye Community were the owners of the land and that the defendant’s vendors had had no authority to sell it. If the matter rested there the plaintiffs would be entitled to exercise the legal rights of the owners of the land, but the Judge also accepted the defendant’s evidence that he had entered into a contract to buy the land in January 1962, started building in March 1962, after obtaining the Planning Authority’s approval of his building plan and completed the building in June 1962. He further held that the plaintiffs knew that the defendant was building on the land in the belief that it was his and had done nothing to warn him of their interest while the building was in progress. He granted the plaintiffs a declaration of title but dismissed their claim to the other forms of relief. The plaintiffs have appealed against the dismissal of part of their claim and the defendant has served notice of his intention to contend that the decision of the Court below be varied by dismissing the claim for a declaration of title. The plaintiffs did not attack the finding that they knowingly stood by and omitted to warn the defendant while he was putting up his building but they have submitted that the defendant has failed to show that he- had an honest belief that the land was his. This was not a case of purchase from complete strangers to the land and according to the plaintiffs themselves the only use to which they put the land was as an occasional praying ground. The plaintiffs have not shown that the judge was wrong in holding it proved that the defendant honestly believed that the land was his, and we uphold his findings of fact. On those findings the judge was correct in refusing to allow the plaintiffs to exercise their legal rights as owners of the land, but the question remains whether his judgment as a whole did the fullest possible justice between the parties and whether it should be varied in any way.


In arguing the cross-appeal, Chief F.R.A. Williams submitted that the grant of a declaration of title is discretionary: Thomas v. Holder (1946) 12 W.A.C.A. 78; and that the judge erred in treating it as a matter of right and not exercising his discretion. He referred to a number of decisions of the West African Court of Appeal, and asked the Court to distinguish between the case involving the reversionary rights of an overlord in land occupied by customary tenants, where inactivity over a long period may form an element in laches, and the case, such as this one, where the owner of land by his acquiescence, impliedly authorises or encourages the expenditure of a large sum of money by someone acting in good faith in the belief that the land belongs to him.


We agree that the grant of a declaration of title is a matter for the court’s discretion, and that R should certainly not be made as a matter of course in a case like this one. However in exercising a discretionary power in such a case as this the court should try to make an order that will settle the rights of the parties finally, and we do not think it possible to consider this particular form of relief in isolation. What the defendant has in the events that have taken place is not an equitable interest in the land but what is called an equity. In Halsbury’s Laws, 3rd Edition, volume 14, paragraph 1180, it is said that where such an equity is created by the acquiescence of the owner of the land, the person who has expended money will be entitled to have his supposed title confirmed or, at any rate, to be compensated for his outlay. A number of cases are cited in the footnotes to that paragraph, and the forms of relief granted in some of them are summarised in the judgment of the Judicial Committee in Plimmer v. The Mayor of Wellington (1884) 9 App Cap. 599, at pp. 713-714, as follows:-


“In such a case as Ramsden v. Dyson (1866) L. R. 1 H.L 129 the evidence (according to Lord Kingsdown’s view) showed that the tenant expected a particular kind of lease, which Vice- Chancellor Stuart decreed to him though it does not appear what form of relief Lord Kingsdown himself would have given. In such a case as the Duke of Beaufort v. Patrick 17 Beav 60 nothing but perpetual retention of the land would satisfy the equity raised in favour of those who spent their money on it, and it was secured to them at a valuation. In such a case as Dillwyn v. Llewelyn 4 D.F. &J 517 nothing but a grant of the fee simple would satisfy the equity which the Lord Chancellor held to have been raised by the son’s expenditure on his father’s land. In such a case as that of the Unify Bank v. King 25 Beav. 72 the Master of the Rolls, holding that the father did not intend to part with his land to his sons who built upon it, considered that their equity would be satisfied by recouping their expenditure to them. In fact, the court must look at the circumstance in each case to decide in what way the equity can be satisfied.


It is clear that in giving effect to an equity of this kind the courts have exercised a very wide discretion in making such an order as will do substantial justice between the parties and settle all outstanding questions between them. As the Judicial Committee points out, there can be no general rule as to the proper order. and “the court must look at the circumstances in each case to decide in what way the equity can be satisfied.” There has been no counter-claim in the present case and as matters now stand the only alternative open to the court on any of the forms of relief sought are to grant or refuse it, but It is clearly unsatisfactory, and almost an invitation to further litigation, If at the end of the case the legal title is vested in one party and the right to adverse possession in the other, and the courts have favoured an order that will vest title and the right to possession in the same party, while allowing the other party such compensation as may be just for the extinction of his rights. An analogous instance may be found in the decision of this Court in Oluwo v. Adebowale (1964) N.M.L.R. 17, where citing Clough v. L..N.W.R. (1871) I.R 7 Ex 26, the court gave the plaintiff the opportunity of rescinding the contract for fraud and resuming the property parted with under the contract, but made it a condition that he should restore the value of what his predecessor In title had received under the contract.

In the Duke of Beaufort v. Patrick 17 Beav 60, 51 E.R. 954,there was a claim for a conveyance of the land to the owner of the equity, he offering to pay compensation. In Dillwyn v. Llewelyn 4 D.F. & J. 517, 45 E.R. 1285 there was a claim for a conveyance, but consideration had already been given and no further compensation was payable. In the hope of being enabled to give a judgment which will finally settle the issues the court will adjourn this appeal, so that the plaintiffs may consider whether to offer the defendant compensation for the expense he has incurred and the defendant may consider whether to counter- claim for a conveyance and offer to pay the plaintiff the value of the land as it was when he entered upon ft. The amount of the compensation payable on either side could, if not agreed, be determined by the High Court after evidence had been called.


The appeal is adjourned for twenty eight days to enable the parties to consider their positions and take advice. If either party applies to amend the court will hear further argument; If not, the appeal will be determined on the existing record. Appeal adjourned accordingly for amendment and argument or determination on the existing record.



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