Acquiescence; General Nature, Onus of Proof and Ingredients – Adedayo E. Salami

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General Nature

The term ‘acquiescence’ is used where a person refrains from seeking redress when it is brought to his notice a violation of his rights of which he did not know at the time. According to the author of Halsbury’s Laws of England, 4th Edition, paragraph 1473 at page 994:

The term acquiescence is, however, properly used where a person having a right, and seeing another person about to commit or in the course of committing an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed; a person so standing by cannot afterwards be heard to complain of the act

From the above definition, it can be said that the doctrine of acquiescence may be defined as acquiescence under such circumstances that assent may be reasonably inferred from it and it is no more than an instance of the law of estoppel by words or conduct ‘Per Iguh, J.S.C in Kayode v Odutola (2001) 11 N.W.L.R (Pt 725) 659 at 683-684. In the case of supreme court case of Omolere Ikuomola v Samota Oniwaya and anors , Justice Uwais (JSC) have this to say about the equitable doctrine of acquiescence:

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 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.”

The cases of Aganran v Olushi 1 N.L.R 67 and Owodunni v George (1967) 1 ALL N.L.R 177 appears to establish that where a land owner stood by and knowingly by his action allowed a stranger to develop the land in goodfaith without the owner appraising the stranger the defect of his title, then the doctrine of acquiescence may properly be invoked to estop the owner from reaping the benefit of the stranger’s labour (this explicitly described proprietary estoppel). However , if he promptly warns the stranger of the defect of his title as soon as he discover the presence of the stranger who proceeds to develop the land, then the doctrine of acquiescence may not assist the stranger.

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Fry, J. in Willimott v Barber 15 Ch.D. 96 at page 105-106 said this about the doctrine of acquiescence which have been frequently cited in our Courts and upon which the decisions of our Courts have been founded

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

In our jurisdiction the supreme court in Taiwo v Taiwo (1958) 3 F.S.C. 80, said inter alia:-

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“Acquiescence does not bar a claim unless certain conditions are fulfilled. One of the most important is that the party who relies upon his opponent’s acquiescence must have been led by it to expend money or otherwise alter his position.”

It is clear from the authorities that warning or lack of it may be crucial for the just decision of a case. Although, I consider mere warning not conclusive. It is not the law that mere warning the owner of a land can stand by and allow a person with a reasonable claim of title, though mistake, in good faith to develop the land over the years and thereafter the owner expects the court to assist him enforce his right over the land. See Per Bello, J.S.C in Solomon v Mogagi (1982) 13 N.S.C.C 400

Proof of Acquiescence

On the onus proof, the burden of proof is on the defence to satisfy the court or establish on balance of probability that the defence of acquiescence was available to him- Per Salami, J.C.A in Idehen v Olaoye (1991) 5 N.W.L.R (PT 191) 344 at 385. Case law and text writers are ad idem on the view that the defence of acquiescence must be specifically proved, Adeniran v Alao (2002) FWLR (pt 90) 1285; with due particularity, Ibenwelu v Lawal (1971) 1 ALL NLR 23. It cannot be otherwise for it is the facts averred which determine what the real defence is. The plaintiff on the other hand, has no obligation to show that there had been no acquiescence, Alade v Aborishade (1960) 5 FSC 167.

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 On The Ingredients Required to Prove Acquiescence

‘Acquiescence does not bar a claim unless certain conditions are fulfilled. It has been decided in plethora of cases that before a defendant can justify himself to have properly proved acquiescence, He must do the following:

1 Adverse possession by the person in occupation, that is, a possession inconsistent with that of the owner. Mafi v Shafi (1965) NMLR p.33 at p 37

2 The possession must have lasted for a long time.

3 The real owner must have been guilty of acquiescence or conducted himself in such a way that the other person inferred consent

4 The person must have relied upon it and must have altered his position.

5 The party who relies upon his opponent’s acquiescence must have led by it to expend money or otherwise alter his position’ – Per Obaseki, J.S.C in Akanni v Makanju (1978) 11 N.S.C.C 526 at 533

Conclusively, it is important to note that the equitable defence of acquiescence when established only disentitles the claimant to a declaration of title and order of injunction.

List of Authorities

1 Akanni v Makanju (1978) 11 N.S.C.C 526

2 Mafi v Shafi (1965) NMLR p.33

3 Alade v Aborishade (1960) 5 FSC 167

4  Idehen v Olaoye (1991) 5 N.W.L.R (PT 191) 344

5 Adeniran v Alao (2002) FWLR (pt 90) 1285

6 Ibenwelu v Lawal (1971) 1 ALL NLR 23

7 Solomon v Mogagi (1982) 13 N.S.C.C 400

8 Taiwo v Taiwo (1958) 3 F.S.C. 80

9 Willimott v Barber 15 Ch.D. 96

10 Aganran v Olushi 1 N.L.R 67

11Owodunni v George (1967) 1 ALL N.L.R 177

12 Halsbury’s Laws of England, 4th Edition

13 Kayode v Odutola (2001) 11 N.W.L.R (Pt 725) 659

14 Omolere Ikuomola v Samota Oniwaya and anors

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