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CAROLINE MORAYO
V.
C. T. OKIADE AND OTHERS
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
27TH DAY OF APRIL, 1942
2PLR/1942/12 (WACA)
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OTHER CITATION(S)
2PLR/1942/12 (WACA)
(1942) VIII WACA PP. 46 – 48
LEX (1942) – WACA PP. 46 – 48
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
FRANCIS, J.
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BETWEEN
CAROLINE MORAYO — Plaintiff-Appellant
AND
C. T. OKIADE,
ADEYEMO,
N. K. ODUMERU,
YESUFU ANIMASHAUN,
SHODIYA — Defendants-Respondents
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REPRESENTATION
J. MARTIN with E. MACARTHY — for Appellant
PHILIP ODDIE — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Declaration of title — Estoppel — Acquiescence in the face of adverse possession — Legal effect
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CASE SUMMARY
Plaintiff-appellant sued for a declaration of title to a piece of land more particularly described in the conveyance and survey plan having bought same from the Oloto family. Soon afterwards she endeavoured without success to dispose of a portion of it and litigation followed with the result that the Auctioneer Laleye who was successful in the action attached the property and retained the title deed, but before the property was sold in execution Mr Laleye’s claim against appellant was paid by one J. A. Oshodi who in return demanded and was handed appellant’s title deed.
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DECISION(S) APPEALED AGAINST
Of the four grounds of defence the trial Judge found in favour of the appellant on three, but on the fourth based on estoppel the defendants were successful and the action was dismissed.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:- (allowing the Appeal and granting the declaration as prayed):
1. Appellant did all within her power to apprise the respondents of her claim to the property but in spite of that knowledge they embarked on the erection of the building.
2. The equitable rule as to the effect of a person’s lying by and allowing another to expend money on his property does not apply when the money is expended with knowledge of the real state of the title. The defendants/respondent’s admission that they made no inquiries as to Oshodi’s title amounts to constructive notice of the documents on which their title was based namely the auctioneer’s receipt and plaintiff’s own conveyance with the appellant.
3. Having held that the respondents had constructive notice of the appellant’s title, the trial court was precluded on the authority of Rennie v. Young (supra) from finding that acquiescence on the part of appellant operated as estoppel.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND FRANCIS, J.
In this case the plaintiff-appellant sued for a declaration of title to a piece of land situated at Ibadan Street, Oko Baba, Ebute Metta, which is more particularly described in the conveyance and plan marked as Exhibit 5.
The facts which are fully set out in the judgment of the learned Acting Chief Justice establish that the appellant bought the land in question from the Oloto family in 1924. Soon afterwards she endeavoured without success to dispose of a portion of it and litigation followed with the result that the Auctioneer Laleye who was successful in the action attached the property and retained the title deed.
Subsequently— but before the property was sold in execution Mr Laleye’s claim against appellant was paid by one J. A. Oshodi who in return demanded and was handed appellant’s title deed.
This document together with Laleye’s receipt for the money paid to him by Oshodi remained in the latter’s possession on his death in 1930 was found by the Administrator of his estate.
In 1933 the property was put up for sale in lots by public auction under an Order of the Court, and was bought by the 1st, 3rd and 5th Respondents and by one Babatunde who has since died. The 2nd respondent inherited Babatunde’s share and the 4th respondent purchased a portion of the land from 1st respondent. Shortly after the purchase of the property in 1933 the respondent exercised acts of ownership over the land whereupon the appellant attempted to assert her claim to it by giving instructions for its sale by auction and by endeavouring to fence it. Meeting, however, with no success she desisted until in 1938 the appellant had the land surveyed by Mr. Benjamin and instituted this action against the respondents who, meanwhile, had erected substantial buildings on the land.
At the trial the respondents raised four ground of defence, and the learned Acting Chief Justice found in favour of the appellant on the first three. The fourth defence however which was based on estoppel was successful and the action was accordingly dismissed. The only question therefore which calls for consideration by this Court is whether the learned Acting Chief Justice was right in finding that the appellant acquiesced in respondent’s adverse possession of the property and that she is now estopped from establishing her claim. In his judgment the learned Acting Chief Justice states:-
“The plaintiff became aware of the defendants’ adverse possession in 1933 said did nothing to assert her title against them for more than five years during which time they changed their position by building on the land…”
We, however, do not agree that this is a strictly accurate exposition of the facts, for there is clear evidence on the record that as soon as appellant became aware of the respondents’ adverse possession she took steps— and very definite steps as we have indicated above to make known to the respondents her claim to the property: so much so indeed that the respondents made inquiries (see evidence of Odumeru 3rd respondent) from Laleye the Auctioneer who according to his own evidence, told them that the land belonged to appellant. Now although this evidence by Laleye was denied by Shodiya there can be no doubt whatsoever that the respondents knew of the appellant’s claim to the property before any expenditure was incurred by them on the erection of a building.
The general rule as to estoppel by silence or standing by was laid down in the case of Cainrcross v. Lorimer (1860) 3 L.T. 130. It is as follows: “it is a rule of universal law that if man either by word or by 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 he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned to the prejudice of those who have given faith to his word, or to the fair inference to be drawn from his conduct. In such cases proof of positive assent or concurrence is unnecessary it is enough that the party had full notice of what was being done and the position of the other party is altered.”
Again in Ramsden v. Dyson (1866) L.R. I.H.L. 129 it was held that “if a stranger begins to build on land supposing it to be his own and the real owner perceiving his mistake abstains from setting him right and leaves him to persevere in his error a Court of equity will not afterwards allow the real owner to assert his title to the land.”
Applying the facts in the case now under consideration to the law as is set out above we are not in agreement with the learned Acting Chief Justice when he found that they amount to estoppel by conduct on the part of the appellant. As we have stated earlier in this judgment she did all within her power to apprise the respondents of her claim to the property but in spite of that knowledge they embarked on the erection of the building. Moreover, in view of Rennie v. Young (1868) 44 .E.R. 939 in which it was held that the equitable rule as to the effect of a person’s lying by and allowing another to expend money on his property does not apply when the money is expended with knowledge of the real state of the title, we are unable to reconcile the learned Judge’s finding on the 3rd ground of defence namely that the defendants admit that they made no inquiries as to Oshodi’s title and must be held to have had constructive notice of the documents on which their title was based namely the auctioneer’s receipt and plaintiff’s own conveyance with the appellant is estopped.
We are of opinion that having held that the respondents had constructive notice of the appellant’s title he was precluded on the authority of Rennie v. Young (supra) from finding that acquiescence on the part of appellant operated as estoppel.
In these circumstances we have no alternative but to set aside the learned Acting Chief Justice’s decision on this question and in view of his findings on the remaining defences raised to hold that appellant is entitled to judgment.
The appeal is accordingly allowed, the judgment of the Court below, including the order as to costs is set aside, and it is ordered that if any sum has been paid in pursuance of that judgment it shall be refunded. It is directed that the plaintiff he granted a declaration as prayed in her writ. The appellant is awarded costs in this Court assessed at forty guineas in the Court below assessed at fifty guineas.
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