AMORE & ORS V ADEGBAMI & ANOR

AMORE & ORS V ADEGBAMI & ANOR


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON FRIDAY, 20TH APRIL, 2018


Suit No: CA/L/646/2015

CITATION:

Before Their Lordships:

TIJJANI ABUBAKAR, JCA

BIOBELE ABRAHAM GEORGEWILL, JCA

JAMILU YAMMAMA TUKUR, JCA


BETWEEN

CHIEF IMAM TIAMIYU AMORE
ALHAJI CHIEF MUKAIL OLA SANNI
ALHAJI DAUD RAU-RAJI
ALHAJI CHIEF ABBAS TANIMOWO
KHALIFA WAHAB EDUNJOBI
(FOR THEMSELVES AND ON BEHALF OF OTHER MEMBERS OF THE CENTRAL MOSQUE OF ISHERI OKE CHURCH, IKEJA. (THE 2ND TO 5TH APPELLANTS WERE SUBSTITUTED BY ORDER OF THE COURT MADE ON 15TH/06/2016)
(APPELLANTS)

AND

PRINCE MICHAEL ADEGBAMI
PRINCE YEKINI GIWA-ODUNSI
(SUBSTITUTED BY THE COURT ORDER DATED 2/3/2015. FOR THEMSELVES AND ON BEHALF OF THE OLOFIN CHIEFTAINCY FAMILY)
(RESPONDENT)


PRONOUNCEMENT


A. APPEAL
1. Issues for Determination – When it is within the power of the Appellate Court to formulate issues for determination

Where Counsel for parties embark on formulating conglomeration of issues for determination and in so doing the Court finds undue proliferation of issues, the Court of Appeal has a duty to prune down and collapse the issues into compact, appropriate and convenient form towards resolving the issues in controversy between the parties. In this appeal, there is obvious unnecessary proliferation of issues, substantial part of the issues crafted by both parties relate to evaluation of evidence, it is therefore unnecessary for parties to fragment their issues and embark on arguments in installment, this is totally uncalled for. It is within the powers of the Appellate Court to formulate issues for determination, especially where it is of the view that the issues are consistent with the grounds of appeal and are capable of dealing with the issues in controversy between the parties, see: Yadis Nigeria Limited v. Great Nigeria Insurance Co. Ltd (2007) LPELR-3507 (SC). Per ABUBAKAR, JCA. read in context

2. Interference with Evaluation of Evidence – The duty of the trial Court to evaluate evidence and when the Appellate Court can interfere with this duty

The duty to evaluate and appraise evidence at the trial is preeminently within the exclusive province of the trial Court which has the advantage of seeing and hearing the witnesses, with the advantage of assessing the demeanor of the witnesses. It is also the law that where the trial Court is not swift in taking advantage of its pre-eminent position, the appellate Court will interfere to redress the wrong, in the instant case it is clear the learned trial Judge did not fully take advantage of his pre-eminent position. It was wrong in my view for the lower Court to hold that the Respondents were vigilant in protecting their rights against violation, especially in the face of the evidence given by PW3 that he also worshipped in the mosque for about fifty years. I think the facts are hard and completely uncontroverted, the essence of the equitable principles of laches is to ensure that a party who is guilty of unreasonable delay in asserting his right or is inordinately negligent in asserting his claim does not benefit from his indolence. The laws are designed to come to the aid of the vigilant and watchful not parties who are manifestly indolent.

I am of the view that the lower Court was wrong in coming to the conclusion that defense of laches and acquiescence was not available to the Appellants. Per ABUBAKAR, JCA. read in context

B. EQUITABLE DEFENCES
3. Defences of Laches and Acquiescence – The doctrine of laches and acquiescence

The doctrine of laches and acquiescence is an interesting principle, it sprung from the maxim that equity aids the vigilant, not the indolent who goes to deep sleep and snoring over his rights. Where a person for some reasons decides to refrain from taking proactive measures to enforce his legal rights, fully conscious of the fact that the rights are being violated, it will be taken that the party has acquiesced in the glaring violation of the right, equity will therefore not come to his aid. The Supreme Court of Nigeria in Rufus v. Imasuen (2016) LPELR-26065 (SC) per GALADIMA, JSC, held as follows:

“Laches and acquiescence, being equitable defenses in essence, they merely state that if a land owner stood-by while a stranger developed his land in good faith, such owner would be estopped from reaping the benefit of such development and a Court of equity would not assist him in enforcing his rights. See: Afolabi Coker v. Moriamo Oguntola and Ors. (1984) 2 NSCL 869, Godwin Nsiegbe and Anor v. Obinna Magbemena And Anor (2007) 4 SCNJ 359… Per ABUBAKAR, J.C.A. (Pp. 36-37, Paras. E-D) – read in context

C. EVIDENCE
4. Presumption of Facts – When presumption of consecration of a place of worship will arise

There is evidence in the printed record of use of the place as a place of worship as a Mosque for well over fifty years. Indeed worship has continuously been conducted in that place for about seventy years without any let or hindrance from any person, including the members of the family and successors in title of Salako.
The above pieces of unchallenged evidence, in my view, immediately gave rise to the issue of a presumption, though rebuttable, that the place was set apart and or dedicated for use by Salako as a place of worship by the Muslim Community in Isheri-Oke Church. To consecrate a thing or something or place simply means to make or declare or set apart or dedicate to the service of a supreme being, Allah the Beneficent and Most Merciful and on the evidence it is very clear to me that the continuous use of the place solely for the purpose of worship of Almighty Allah by the Muslim Community in Isheri-Oke Church for about seventy years was indicative of the fact that the place was set apart and dedicated to the service of Almighty Allah by Salako. In Phipson on Evidence, Eleventh Edition, the learned authors, while expatiating on the principle of presumption of regularity with examples, had stated inter alia thus:

“Thus, the constant performance of divine services from an early period in a Chapel raises a rebuttable presumption of its due consecration…. User of a way by the Public as of right for twenty years gives rise to a presumption of dedication”

See also B. A. Shitta-Bey v. Attorney General of the Federation & Anor. (1998) 10 NWLR (Pt. 570) 392; Eaglehill Ltd v. J. Needham (Builders) Ltd (1972) 3 All ER 895. It follows that to consecrate a place as a place of worship need not necessarily be by a formal ceremony, though desirable or written or public declaration. Thus, constant and or continuous performance of divine services, as in the instant appeal for about seventy unintemrpted years, raises a rebuttable presumption of its due consecration and in the absence of any evidence to the contrary the presumption remained un-rebutted and the Court below was therefore, wrong to hold that the place was not consecrated, that is set apart, by Salako for the worship of Almighty Allah by the Muslim Community in Isheri-Oke Church. This finding to that effect by the Court below was perverse having not been borne out by the strength of the evidence led before it and thus liable to be set aside. Per GEORGEWILL, JCA. read in context

D. ISLAMIC LAW AND PROCEDURE
5. Islamic Law – How a mosque cannot be inherited under Islamic Law

I will take up issue number one, which is “Whether the learned trial Judge was right when he held that a mosque built by an individual or family must first be consecrated in a formal ceremony before the Muslim Community of the area can claim ownership thereof, even when the Mosque had been put to long use by the affected Community.” The learned trial Judge according to learned Counsel for the Appellant held that, Olofin Sarumi built the mosque for the Muslim Community, but since the mosque was not consecrated to the Muslim community, the Community cannot claim ownership. Counsel said the learned trial Judge in arriving at this conclusion relied on the decision in Akibu v. Onibudo & Ors (1980) 13 NSCC pg. 199. Learned Counsel for the Appellants referred to the evidence of PW1 at page 231 and 258 of the records of appeal to submit that Olofin Sarumi built the mosque for the benefit of the Community and not himself alone. Counsel for the Appellants said since the mosque was built for the benefit of the Community and was not built on the premises or within the walls of his compound, such gift cannot be revoked or inherited by the heirs of the person who built it.

The Respondents in this appeal did not directly and specifically address the issue of consecration raised by the Appellants, they however said in the instant case, the learned trial Judge was right when he held that there was no evidence of consecration or donation of the mosque before the lower Court, that the learned trial Judge was right in coming to the conclusion that there was no evidence of consecration. Counsel referred to the Judgment of the lower Court, where the Court held that there is no continuity with the old mud mosque.

At page 405 of the records of appeal, the learned trial Judge said as follows:

“I now ask, was the old mosque ever consecrated or dedicated or donated to the Muslim Community of Isheri-Oke Church by Odunsin Sarumi, the Olofin of Isheri? This was never the case of the Defendants at all. The case of the defendants was that Oshorun family gave them the land in which they built the old mosque. See the evidence of the 3rd DW, Chief Imam Amore, the 1st Defendant. In another breach (sic) in his evidence, he said it was Adenrele who gave the land to them from a portion given to them by Kumoro family.

The case of the Plaintiffs is that Sarumi Odunsi the Olofin of Isheri after Taiwo Olowo the 1st who had built the 1st Church at Isheri-Oke, built a Mosque and allowed Moslem to worship in mosque. There was no evidence of consecration or dedication or donation of the mosque to the Moslem Community of Isheri. Odunsi allowed them to worship in the mosque. In my view one would not turn the mosque to have been consecrated or dedicated the mosque for the Moslem. The area edged Red in Exh. A is the same as the areas edged Red in Exhibits D, J and K are the same falls within the land of Olofin Chieftaincy family in Exhibit “A”. In this respect I will refer to the case of Onibudo v. Akibu & Ors (1980) NSCC page 199 cited by both Learned Senior Advocates
and in particular the dictum of Bello, JSC (as he then was) at page 212 “Under the Islamic law, mosque is regarded, as the house of Allah. It belongs to no one. It is not a property which could be inherited and it could not be claimed by anyone. If a Moslem builds a mosque, unless it is within the walls of the compound, the property in it will automatically become charity for religious use of the Moslem community. Not even the person who builds it with his own money from praying in it. You cannot possess what you have given away for the worship of God and it is a gift which you cannot recover. The words unless it is within the walls of his Compound underlines are mine. It is in evidence that the old mud mosque was built by Sarumi Odunsi the Olofin of Isheri within the premises housing the palace which belongs to the Olofin Chieftaincy Family of Isheri which is stool land……”

From the above extract from the Judgment of the lower Court, the learned trial Judge held the view that the Mosque subject matter of dispute was not consecrated as a mosque and that the same Mosque was constructed within the premises housing the palace belonging to the Olofin Chieftaincy Family, the learned trial Judge further concluded that since the mosque was built on stool land. The learned trial Judge having so found concluded as follows at page 408 of the records of appeal and I quote:

“On the other hand defendants set up a conflicting case on the issue of title. On one hand they said paragraph 3 of their Amended statement of defense that Oshorun family granted the Moslem Community the land in dispute about 100 years absolutely. Their title rested on grant by Oshorun family. It is therefore their Onus to establish that grant from Oshorun which they have failed to prove and having failed to establish their grant from Oshorun, the title of both parties have been thoroughly examined. I am of the strong view that the Plaintiffs have discharged the ONUS placed on them on a claim for declaration of title to land……”

To determine this issue, it is important to first of all determine what is meant by consecration. Dictionary.com described Consecration as:

“To make or declare sacred, set apart or dedicate to the service of a deity, to make something an object of honor or veneration, to devote or dedicate to some purpose…”

The learned trial Judge said there was no consecration of the mosque to the community in addition to the fact that the mosque was constructed within stool land. In my view these two points are matters of evidence, I will examine the evidence of witnesses at the trial to determine if the mosque subject matter of litigation was in fact consecrated and or built on stool land to exclude the land from Moslem Community ownership.

I refer to the evidence of Alhaji Isaiu Obatula PW3, found at page 256 of the records of appeal, part of his evidence is reproduced as follows:

“I am a member of the Olofin Chieftaincy family. I know the land in dispute. The land is at the middle of Isheri-Oke church. I know the Oshorun family of Isheri. The Oshorun family live at Isheri Olofin on the other side of Ogun River. I know the Oshorun family very well, my mother is from the Oshorun family, she is now dead. My mother during her life time was the principal member of the Oshorun family. She was an important and principal member of the Oshorun family.
I know that the land in dispute belonged to Olofin.

There is a mosque built on the land in dispute now. There used to be the house of the secretary of Olofin on where the mosque now stands. The name of the secretary is Solako. I know Salako in person, he did not serve Oba Olofin alone, he served other Obas as their secretary….”

This witness PW3 Alhaji Isaiu Obatula while giving evidence in chief as a witness for the Plaintiffs at page 258 of the records of appeal stated as follows and I quote again:

“The ancestors of the defendants have built the mosque, it was Oba Odunsi Olofin who built the mosque. It was Odunsi who built the 1st Mosque. It was built for the benefit of all Muslim at Isheri and other area. Anybody is a Muslim is allowed to worship in the mosque it not built exclusively for the Olofin family, Oshorun family has no land in the vicinity where the land is located…”

During cross examination at page 260 of the records of appeal, the witness said as follows:

“The land belonged to our forefathers. The defendants have not taken permission from us. It is not say when a mosque is built and dedicated by a person, it is still his mosque and will not be correct to say that the mosque belonged to God.”

The issue to determine is whether the mosque was consecrated and whether it was built within stool land. The learned Trial Judge from the portion of the Judgment reproduced above held the view that the mosque was not consecrated and that it was built within stool land. The learned trial Judge placed substantial reliance on the decision in Akibu v. Onibudo & Ors (Supra). I need to revisit the decision cited and relied on by the learned trial Judge to determine if the indeed took the settled principles of law into appropriate consideration in arriving at a decision.

Bello JSC, (later CJN of blessed memory) in his contribution to the lead Judgment in Akibu v. Onibudo & Ors (Supra) said follows:

“I think I may take judicial notice of the fact that ‘Uthman Mohammed, JCA, who delivered the lead Judgment with which the two other Justices concurred, is learned in Islamic law and is entitled to take judicial notice of the such law in a proper case. I take it that he correctly stated the tenet of Islamic law in his Judgment wherein he said:

“Under Islamic law, mosque is regarded as the House of Allah. It belongs to no one. It is not a property which could be inherited and it could not be claimed by anyone. If a Moslem builds a mosque. Unless it is within the walls of his compound, the property in it will automatically become charity for religious use of the Moslem Community. Not even the person who builds it with his own money has the right to exclude any Moslem from praying in it. You cannot possess what you have given away for the worship of God and it is a gift which you cannot recover.”

It is transparently clear from the very case presented by the Appellants that since their ancestor, Sumonu Onibudo, had built the mosque in 1894, on his land and had dedicated it to the Moslem community, the Appellants are incapable of inheriting the mosque under Islamic law and are not therefore entitled to the declaration and possession granted them by the High Court Lagos.”

I must be quick to add that in the said Judgment the Supreme Court of Nigeria referred to Section 73 of the Evidence Law cap 39 of Laws of the Lagos State of Nigeria 1973, holding that trial Courts were not permitted to make reference to tenets of Islamic law. In the Judgment delivered at the Court below, the learned trial Judge copiously relied on the decision cited, and held the view that the Mosque subject matter of litigation was not consecrated and that the Mosque was built within stool land thereby excluding the case from the settled principles of law.

I have already reproduced the evidence of PW3 from the records of appeal, PW3 who testified for the Plaintiffs at the lower Court, in his evidence clearly stated that the “Mosque was built at the middle of Isheri-Oke Church”, and that the mosque “was built for the benefit of all Muslim at Isheri and other area. Anybody who is a Muslim is allowed to worship in the mosque it is not built exclusively for the Olofin family…”. From the evidence led at the trial, there is no doubt that the Plaintiffs through their witness clearly admitted that the mosque was built for the benefit of the Community and was built at the middle of Isheri-Oke Church, contrary to the conclusion reached by the learned trial Judge.

It is clear from the materials before the lower Court that the conclusion reached by the learned trial Judge that there was no evidence of consecration of the mosque for the purpose of use of the mosque by the Community and that the mosque was built within the premises or compound of the Olofin family who did the donation arose from clear misapprehension of the facts. It is the duty of the Court to decide between parties on the basis of what has been demonstrated, tested, canvassed and argued in Court. Where the trial Court fails to properly evaluate the evidence led at the trial, the appellate Court is perfectly entitled to do so in order to arrive at a just decision, see: Ayanru v. Mandilas Ltd (2007) 10 NWLR (Pt. 1043) 462.
I hold the view that the Mosque subject matter of dispute between the parties in this appeal was consecrated for the use of the Community and was built in the middle of the Community. This issue is therefore resolved in favor of the Appellants against the Respondents. Per ABUBAKAR, JCA. read in context


LEAD JUDGMENT DELIVERED BY ABUBAKAR, JCA


This appeal stems from the Judgment of the High Court of Lagos State delivered by Martins J, on the 23rd day of February, 1996, in suit No. ID/682/1981.

At the Court below, the Respondents as Plaintiffs commenced action by writ against the Appellants as Defendants. The issue culminating into the action at the Court below arose from dispute relating to ownership of land used by the Appellants as Mosque. The genesis of the dispute is that, Olofin Sarunmi who reigned as the Oba of Isheri Oke Church between 1901 and 19 8, built a mosque and worshipped along with other Muslim worshippers in the Isheri Oke Church Community until his death. That after the death of Olofin Sarunmi, the Muslim Community continued to worship.

The Respondents in this appeal were surprised that the Appellants led by the 1st Defendant built another Mosque on the land adjacent to the Mosque, and subsequently demolished the old mosque and replaced same with an uncompleted building, comprising homes and shops, the Respondents as Plaintiffs contended that the action of the Appellants amounted to trespass on their stool land and therefore took steps to recover the land from the Plaintiffs and claim some damages.

On the part of the Appellants, they contended that, their predecessors in interest were the same as the early settlers in the area known as Isheri Oke Church. Appellants as Defendants contended that, one Oshorun gave the land to them through one Adenrele who became the 1st Ba’ale of Isheri Oke Church. Appellants contended that the land subject matter of dispute was given to them about One Hundred years ago before the commencement of the action by the Plaintiffs/Respondents. The Defendants further contended that the Mosque was built of mud and went into dilapidation, and the premises became too small for the worshippers, this therefore informed their decision to build another mosque, and converted the current mosque into Islamic Centre for the education of young Muslim children in the Community.

Appellants claimed that the construction of the mosque started in 1960 and the construction period lasted fifteen years, that construction of the new Mosque was completed 1975. The Appellants then commenced the construction and redevelopment of the old mosque into an Islamic Centre. Appellants denied that the Mosque was built by Olofin Sarumi, and that the land did not constitute part of Olofin stool land.

The Respondents as Plaintiffs therefore took out writ of summons against the Appellants as Defendants found at pages 220-221 of the records of appeal claiming as follows:

1. Declaration that they are the persons entitled to the statutory right of Occupancy in respect of the parcel of land edged RED in Plan CK/LS/1350 filed in this suit.

2. N500.00 damages for trespass.

3. Injunction restraining the defendants their servants or privies from committing further acts of trespass on the Land in dispute.

Trial commenced on the 8th day of November, 1988, Judgment was eventually delivered on the 23rd day of February, 1996, the Plaintiffs, Respondents herein got Judgment, and Appellants became nettled by the decision and therefore made for this Court, armed with Notice of appeal filed on the 20th day of May 1996. Appellant’s Notice of appeal containing four grounds of appeal is found at page 413-416 of the records of appeal.

The Appellants through learned Counsel Wofai Jimmy Robert of Al-Ghanny Chambers, nominated four issues for determination, the issues are reproduced as follows:

1. Whether the learned trial Judge was right when he held that a mosque built by an individual or family must first be consecrated in a formal ceremony before the Muslim Community of the area can claim ownership thereof, even when the Mosque had been put to long use by the affected Community (Ground One).

2. Whether in the face of the material contradictions of the evidence in the Plaintiff’s witnesses as to date of the demolition of the old Mosque and the construction of the new Mosque, it is open to the learned trial Judge to have accredited any portion of the evidence of the Plaintiffs witnesses on this point. (Ground Two).

3. Whether the learned trial Judge properly evaluated the totality of the evidence placed before the Court, before deciding that the defense of larches and acquiescence did not avail the defendants in this case. And if not what is the effect of its failure to do so? (Ground Three).

4. Whether upon proper examination of the totality of the evidence before the Court, the weight of evidence was in favor of the Plaintiffs as decided by the learned trial Judge (Ground Four).

On the part of the Respondents, learned Counsel Lekan Odunsi submitted three issues for determination, the issues are also reproduced as follows:

1. Whether having regard to the pleadings and evidence, the Plaintiffs/Respondents were not entitled to Judgment in view of the case of Akibu v. Onibudo (1982) 7 S.C. 60 (Ground 2).

2. Whether the lower Court properly directed itself and treated the case according to legal principles applicable in a case of damages for trespass to land and injunction? (Ground 1).

3. Whether the lower Court properly evaluated and directed itself according to applicable legal principles relating to laches and acquiescence. (Ground 3 and 4).

SUBMISSIONS OF COUNSEL

APPELLANT’S ISSUE ONE

Appellant’s issue for determination number one is:

“Whether the learned trial Judge was right when he held that a mosque built by an individual or family must first be consecrated in a formal ceremony before the Muslim Community of the area can claim ownership thereof, even when the Mosque had been put to long use by the affected Community.”

Submitting on this issue, learned Counsel said, the learned Trial Judge held that, Olofin Sarumi; built the mosque to the Muslim Community, but since the mosque was not consecrated to the Muslim community, the Community cannot claim ownership. Counsel said the learned trial Judge in arriving at this decision relied on the decision in Akibu v. Onibudo & Ors (1980) 13 NSCC Pg. 199.

Learned Counsel for the Appellant said, when Olofin Sarumi Odunsi built the Mosque, he surrendered same to the Muslim Community in Isheri. learned Counsel specifically referred to the evidence of PW1 at page 231 of the records of appeal. Learned Counsel relied on the evidence of pw1 at pages 231 and 258 to Submit that Olofin Sarumi built the mosque for the benefit of the Community and not himself alone. Counsel also relied on the decision in Akibu v. Onibudo (Supra) to submit that since the mosque was built for the benefit of the Community and was not built on the premises or the walls of his compound, such gift cannot be revoked or inherited by the heirs of the person who built it.

Learned Counsel for the Appellant said Olofin Sarumi reigned between 1901 and 1928, and that PW1 continued worshipping in the same old mosque several years after the demise of the Olofin, Counsel referred to the evidence of PW1 at page 236 of the records of appeal. Learned Counsel said the Defendants Appellants had unhindered access to the mosque for at least 65 years. Counsel therefore submitted that even if the Plaintiffs Respondents had any right to reclaim the site of the mosque, the right had extinguished relying on the decision in Hada v. Malumfashi (1993) 7 NWLR (Pt. 303) 1 at 20. Learned Counsel submitted that where an owner of property stands by without challenging possession by another party for over a period of 38 years, the owner cannot thereafter successfully challenge possession of the property. He also relied on the decision in Hussaini Dandume v. Alhaji Adamu & Ors (1977)10 NWLR (Pt. 525) 452 at 457-458, UMARU v. BAKOSHI (2000) 5 NWLR (Pt. 646) 691, and Baba v. Aruwa (1986) 5 NWLR (Pt. 44) 774 at 786. Learned Counsel for the Appellants referred to the evidence of PW1 and said from the evidence it was clear the witness worshipped in the mosque in 1976 and from simple computation from 1976 to the death of Olofin Sarumi was 46 years, and that the mosque was built around 1914, and that from the time the witness testified in 1988, the mosque had existed for 74 years and when the action was commenced in 1981, the mosque had existed for 68 years and by implication therefore the Muslim Community in Isheri had been in undisturbed possession for 68 years before the action was commenced.

Learned counsel also referred to the Judgment of the lower Court at page 406 of the records where the Court held that, the Mosque was built within the premises of the Palace belonging to the Olofin Chieftaincy family which constitutes part of stool land. Learned counsel said this part of the evidence is not borne by the records of the Court. Counsel said this piece of evidence is nowhere in the records of the Court, he submitted that part of the duties of the Court is to determine matters on the basis of the evidence demonstrated, canvassed and argued in Court. He relied on the decision in Arowolo v. Akaiyejo (2012) 4 NWLR (Pt. 1290) 286 at 306-307, Ogundele v. Agiri (2009) 18 NWLR (Pt. 1173) 219 at 252.

Learned Counsel for the Appellants also referred to the evidence of PW1 and PW3 at pages 232 and 256 to submit that the location of the mosque is at the middle of Isheri-Oke Church. Counsel also submitted that stool land is not a subject of inheritance by descendants, that it is held by the Oba in his representative capacity as distinguished from land which the Oba and his family hold individually, he relied on the decision in Oyekan v. Adele (1952) 14 WACA, 209-210. Learned Counsel therefore urged this Court to resolve this issue in favor of the Appellants against the Respondents.

APPELLANT’S ISSUES TWO AND FOUR

Learned Counsel for the Appellants argued issues two and four together, the issues are: “Whether in the face of the material contradictions of the evidence in the Plaintiffs witnesses as to date of the demolition of the old Mosque and the construction of the new Mosque, it is open to the learned trial Judge to have accredited any portion of the evidence of the Plaintiffs witnesses on this point”. And “Whether upon proper examination of the totality of the evidence before the Court, the weight of evidence was in favour of the Plaintiffs as decided by the learned trial Judge.”

Learned Counsel for the Appellants referred to the evidence of PW1 at page 232 and 233, evidence of PW2 at page 254 of the records of appeal and the evidence of PW3 at page 260 of the records. Learned Counsel said the evidence of PW1 was to the effect that Oba Odunsi first built the mosque, it was demolished in 1979, that the Appellants moved to the house of Salako and started building a new mosque in 1981. Learned Counsel pointed out the contradictions in the evidence of the witnesses and submitted that, where there are contradictions in the evidence of witnesses, the Court is not at liberty to pick and choose the proper thing for the Court to do is to discountenance the entire evidence given on behalf of the party. He relied on the decision in Onubogu v. State (1974) 9 NSCC 358 and Ezemba v. Ibeneme (2004) 14 NWLR (Pt. 894) 617 at 664. Learned Counsel for the Appellants also submitted that where a party adduces conflicting evidence in proof of root of title by traditional history such proof will be treated as unreliable and the claim will be dismissed. Relying on Adeleke v. Asani (1994) 1 NWLR (Pt. 322) 536, 553 at 554, and Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 5) 393.

It was also contended by learned Counsel for the Appellants that the conclusion drawn by the learned trial Judge at page 402-403 was wrong, he said contrary to the conclusion reached by the learned trial Judge that, there were material contradictions in the evidence led by the defendants, there were more contradictions in the evidence led by the Plaintiffs. Counsel said the traditional history of root of title proffered by the defendants is more credible than the evidence of the Plaintiffs. Learned Counsel also referred this Court to the decision in Alli v. Aleshinloye (2000) 6 NWLR (Pt. 660) 177 at 184, to submit that recent possession or ownership is helpful in determining which of two traditional witnesses to be preferred by the Court. Counsel on behalf of the Appellants urged this Court to resolve these issues in favor of the Appellants against the Respondents.

APPELLANT’S ISSUE THREE

Appellant’s issue number three is “Whether the learned trial Judge properly evaluated the totality of the evidence placed before the Court, before deciding that the defense of laches and acquiescence did not avail the defendants in this case. And if not what is the effect of its failure to do so?”. It was the argument of learned Counsel for the Appellants that, while the Plaintiffs contended at the trial that Oba Sarumi Odunsi who reigned between 1901 and 1928 built and worshipped in the mosque with other members of the Community, the Defendants contended that the Muslim Community bought the land from Oshorun Family and built the mosque more than 100 years ago. Counsel therefore said from the testimony of both parties, it is not in doubt, that the Mosque existed for over 70 years before the action was commenced by the Plaintiffs in 1981.

Appellants also referred to the evidence of PW3 at page 260 of the records of appeal to submit that the construction of the new Mosque commenced in 1960 and was completed in 1975. Counsel referred to the Judgment of the lower Court and said the learned trial Judge appreciated the principles of lashes and acquiescence but failed to apply the principles in evaluating the case of the Defendants. Counsel said the defendants believed they had the right to the use and occupation of the land, relying on the decision in Agangan v. Olushi (1907) 1 NLR Pg. 66.

The learned Counsel for the Appellants referred to the decisions in Akpan Awo v. Cookey Gam (1913) 2 NLR at page 100, Oshodi v. Balogun (1936) 4 WACA 1, Saidi v. Akinwumi (1956) 1 FSC, Pg. 107 and Taiwo v. Taiwo (1958) 3, FSC, Pg. 80 to submit that the Plaintiffs did not show at the trial before the Court below that they challenged the rights of the Muslim Community to the use and occupation of the land adjacent to the old mosque before it was developed into new mosque.

Appellants also contended that the Respondents did not challenge them when they demolished the old mosque and commenced redevelopment, Counsel referred to the decision in Okoh v. Olotu (1953) 20 NLR 123 and the evidence of DW3 at page 290 of the records of appeal. Counsel also referred to the evidence of PW3 where he said the construction of the new mosque commenced in 1960 and was completed in 1975. Counsel referred this Court to Nwakobi v. Nzekwu (1961) 1 All NLR p.445, to submit that the Plaintiffs knew when the Defendants raised money and expended same on the development of the mosque and took no step. Counsel submitted that the totality of the attitude of the Plaintiffs was that they were aware of the trespass to their stool land and they stood-by, they did not complain. Counsel said the Respondents having stood-by and watched the Appellants demolish the old mosque, constructed new one will not be allowed to raise any claim. He urged this Court to resolve this issue in favor of the Appellants, and allow the appeal.

RESPONDENT’S ISSUE ONE

Respondent’s issue number One is “Whether having regard to the pleadings and evidence, the Plaintiffs/Respondents were not entitled to Judgment in view of the case of Akibu v. Onibudo (1982) 7 S.C. 6. Learned Counsel for the Respondents while submitting on this Issue said civil matters are tried upon the pleadings of the parties. Learned Counsel reproduced paragraphs 2-25 of the Plaintiff’s Respondents statement of claim dated 3/6/88 found at pages 219-220 of the records and paragraphs 1, 2, 3, 4, 7, 8, 10, 11, 13, 14, 15, 16, 17, 19, 20, 21 of Defendants further statement of defense dated 15/6/88, wherein the Defendants denied the averments in the Plaintiffs statement of claim.

Learned Counsel said both parties are litigating over the same piece of land where the Defendants erected new mosque having moved away from the old mosque, he said both parties know the identity of the land in dispute, referring to page 400 of the records of appeal and 401. Counsel said PW1 gave evidence on the founding of Isheri by their forefathers, he relied on various exhibits ranging from A, B, C, C1 and C2 affirming Isheri Oke Church as stool land, the said evidence was corroborated by the evidence of PW3 and PW4, referring to pages 378 and 384 of the records of appeal.

Counsel also referred to the evidence of the Plaintiffs surveyor and gave a graphic illustration of the entire area, he referred to pages 376-378 of the records of appeal. Learned Counsel also referred to exhibit B, CTC of Judgment in Suit No. 128/1918 between Odunsi v. Odunran and the survey plan Exhibit C2. Counsel said C2 showed the old mosque. The Palace of Odunsi Sarumi and one Salako who was granted permission to build his house on Plaintiff’s family land, he referred to pages 227, 230, 231, 252 to 254 of the records of appeal.

On the review of evidence by the lower Court, learned Counsel said the lower Court rightly reviewed every piece of evidence before it and the Appellants failed to show why the Judgment of the lower Court should be disturbed. Learned Counsel also submitted that the Court of Appeal can only disturb the decision of the lower Court when it is apparent that the lower Court failed to make good use of the advantages it had, relying on the decision in Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360 and Okpaloka v. Umeh (1976) 9-10 S.C. 269.

Counsel submitted that the decision of the lower Court was not perverse. With regards to application of the decision in Akibu v. Onibudo (Supra). Counsel said, in Lagos State any issue relating to Islamic law is treated as a question of fact which must be pleaded and expert evidence adduced in support. Counsel also referred to the evidence of DW1 at page 275-276 and 407, who under cross-examination said, it is not allowed in Islam for a person to build mosque on another person’s land. Learned Counsel finally submitted that Appellants have not shown that it is within the tenets of Islamic Principles particularly in Lagos to jump on another person’s land without his consent or permission.

RESPONDENT’S ISSUE TWO

Respondent’s Issue number is “Whether the lower Court properly directed itself and treated the case according to legal principles applicable in a case of damages for trespass to land and injunction?” The Learned Counsel for the Respondents said even though Appellants traced their root of title to Oshorun family, they failed to call evidence or witness from the Oshorun family to establish their root of title before the lower Court. Counsel said the case of the Plaintiff at the Court below was a case of trespass, injunction and damages and that the lower Court came to the right conclusion following proper evaluation of evidence. Counsel relied on the decision in Folorunsho v. Adeyemi (1975) NMLR 128 and Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (Pt. 7) 393, to contend that a Court does not have to write its Judgment in a particular way.

RESPONDENT’S ISSUE THREE

Respondents issue number three is “Whether the lower Court properly evaluated and directed itself according to applicable legal principles relating to laches and acquiescence. Learned Counsel for the Respondents said the Appellants failed to lead credible evidence to show that they had been in possession of the land for over 100 years.

Counsel referred to Exhibit B and said the land subject matter of litigation in the suit was declared as Olofin’s stool land. Defendants being privies to the Oshorun family are estopped from raising defense of laches and acquiescence. Counsel said the action at the Court below had to do with the site of the new mosque, but both lands encompassing the new and old mosque belong to the Respondents having regards to various Court Judgments. Counsel submitted that the defense of laches and acquiescence is not available to the Appellants. It was also contended on behalf of the Respondents that before laches and acquiescence could deprive a person of his legal rights, the alleged delay and circumstances must have been such as to make it fraudulent for him to take up and assert the right, he relied on the decision in Agbeyegbe v. Ikomi (1945) 12 WACA at 383, Taylor and Ors. v. Kingsway Stores Of Nigeria Ltd & Ors (1965) 1 All NLR at 10. Learned Counsel for the Respondent said there was no slightest delay on their part, they objected to the defendant’s entry into the property. Learned Counsel went through the evidence led by the Defendants at the trial and held that the Respondents failed to establish that they had been in possession of the property subject matter of litigation for over 100 years.

It was again contended by learned Counsel for the Respondent that the learned trial Judge was right when he found that the Appellants failed to establish any of the five elements listed in Moss v. Kenrow Ltd (1992) 9 NWLR (Pt. 264) 207 at 212, to establish lashes and acquiescence. Counsel then submitted that to the contrary, the Respondents were swift and prompt action when they sighted the Appellants committing the act of trespass.

The Respondents raised the issue of consecration of the mosque and said the issue of consecration or donation of the mosque was never an issue. Counsel said the case of the Defendants was that the land was given to them by Oshorun’s family, while in another breath the Appellants said the land was given to them by Adenrele. The Respondents said in the instant case, the learned trial Judge was right when he held that there was no evidence of consecration or donation of the mosque. Counsel referred to the Judgment of the lower Court, where the Court held that, there is no continuity with the old mud mosque, the old mud mosque is now housing the building under construction, the house of Salako the secretary of Olofin is now housing the New Mosque. The Court finally held that there is no evidence whatsoever that Salako ever consecrated his house as a place of worship for the Muslim Community in Isheri-Oke Church.

Learned Counsel for the Respondents also submitted that the Appellants failed to establish the alleged construction of the mosque between 1960 and 1975 by way of proof by any form of document. Counsel further relied on the conclusion drawn by the learned trial Judge at page 411 of the records of Appeal that the Appellants as defendants failed to tender approved building plans for the mosque.

Learned Counsel finally submitted that the lower Court came to the right conclusion and urged that the appeal be dismissed and the Judgment of the lower Court be affirmed. I need to mention that the Appellants in this appeal filed no reply brief.

RESOLUTION

Where Counsel for parties embark on formulating conglomeration of issues for determination and in so doing the Court finds undue proliferation of issues, the Court of Appeal has a duty to prune down and collapse the issues into compact, appropriate and convenient form towards resolving the issues in controversy between the parties. In this appeal, there is obvious unnecessary proliferation of issues, substantial part of the issues crafted by both parties relate to evaluation of evidence, it is therefore unnecessary for parties to fragment their issues and embark on arguments in installment, this is totally uncalled for. It is within the powers of the Appellate Court to formulate issues for determination, especially where it is of the view that the issues are consistent with the grounds of appeal and are capable of dealing with the issues in controversy between the parties, see: Yadis Nigeria Limited v. Great Nigeria Insurance Co. Ltd (2007) LPELR-3507 (SC).

The issues to resolve do not go beyond the issue of consecration of mosque and proper evaluation of the evidence generated at the trial by the learned trial Judge.

In my view therefore the issues to resolve in this appeal are as follows:

1. Whether the learned trial Judge was right when he held that a mosque built by an individual or family must first be consecrated in a formal ceremony before the Muslim Community of the area can claim ownership thereof, even when the Mosque had been put to long use by the affected Community.

2. Whether the learned trial Judge properly evaluated the totality of the evidence placed before the Court, before deciding that the defense of laches and acquiescence did not avail the defendants in the instant case.

I will take up issue number one, which is “Whether the learned trial Judge was right when he held that a mosque built by an individual or family must first be consecrated in a formal ceremony before the Muslim Community of the area can claim ownership thereof, even when the Mosque had been put to long use by the affected Community”. The learned trial Judge according to learned Counsel for the Appellant held that, Olofin Sarumi built the mosque for the Muslim Community, but since the mosque was not consecrated to the Muslim community, the Community cannot claim ownership. Counsel said the learned trial Judge in arriving at this conclusion relied on the decision in Akibu v. Onibudo & Ors (1980) 13 NSCC pg. 199.

Learned Counsel for the Appellants referred to the evidence of PW1 at page 231 and 258 of the records of appeal to submit that Olofin Sarumi built the mosque for the benefit of the Community and not himself alone. Counsel for the Appellants said since the mosque was built for the benefit of the Community and was not built on the premises or within the walls of his compound, such gift cannot be revoked or inherited by the heirs of the person who built it. The Respondents in this appeal did not directly and specifically address the issue of consecration raised by the Appellants, they however said in the instant case, the learned trial Judge was right when he held that there was no evidence of consecration or donation of the mosque before the lower Court, that the learned trial Judge was right in coming to the conclusion that there was no evidence of consecration. Counsel referred to the Judgment of the lower Court, where the Court held that there is no continuity with the old mud mosque.

At page 405 of the records of appeal, the learned trial Judge said as follows:

“I now ask, was the old mosque ever consecrated or dedicated or donated to the Muslim Community of Isheri-Oke Church by Odunsin Sarumi, the Olofin of Isheri? This was never the case of the Defendants at all. The case of the defendants was that Oshorun family gave them the land in which they built the old mosque. See the evidence of the 3rd DW, Chief Imam Amore, the 1st Defendant. In another breach (sic) in his evidence, he said it was Adenrele who gave the land to them from a portion given to them by Kumoro family.

The case of the Plaintiffs is that Sarumi Odunsi the Olofin of Isheri after Taiwo Olowo the 1st who had built the 1st Church at Isheri-Oke, built a Mosque and allowed Moslem to worship in mosque. There was no evidence of consecration or dedication or donation of the mosque to the Moslem Community of Isheri. Odunsi allowed them to worship in the mosque. In my view one would not turn the mosque to have been consecrated or dedicated the mosque for the Moslem. The area edged Red in Exh. A is the same as the areas edged Red in Exhibits D, J and K are the same falls within the land of Olofin Chieftaincy family in Exhibit “A”. In this respect I will refer to the case of Onibudo v. Akibu & Ors (1980) NSCC page 199 cited by both Learned Senior Advocates and in particular the dictum of Bello, JSC (as he then was) at page 212 “Under the Islamic law, mosque is regarded, as the house of Allah. It belongs to no one. It is not a property which could be inherited and it could not be claimed by anyone. If a Moslem builds a mosque, unless it is within the walls of the compound, the property in it will automatically become charity for religious use of the Moslem community.

Not even the person who builds it with his own money from praying in it. You cannot possess what you have given away for the worship of God and it is a gift which you cannot recover. The words unless it is within the walls of his Compound underlines are mine. It is in evidence that the old mud mosque was built by Sarumi Odunsi the Olofin of Isheri within the premises housing the palace which belongs to the Olofin Chieftaincy Family of Isheri which is stool land……”

From the above extract from the Judgment of the lower Court, the learned trial Judge held the view that the Mosque subject matter of dispute was not consecrated as a mosque and that the same Mosque was constructed within the premises housing the palace belonging to the Olofin Chieftaincy Family, the learned trial Judge further concluded that since the mosque was built on stool land. The learned trial Judge having so found concluded as follows at page 408 of the records of appeal and I quote:

“On the other hand defendants set up a conflicting case on the issue of title. On one hand they said paragraph 3 of their Amended statement of defense that Oshorun family granted the Moslem Community the land in dispute about 100 years absolutely. Their title rested on grant by Oshorun family. It is therefore their Onus to establish that grant from Oshorun which they have failed to prove and having failed to establish their grant from Oshorun, the title of both parties have been thoroughly examined. I am of the strong view that the Plaintiffs have discharged the ONUS placed on them on a claim for declaration of title to land……”

To determine this issue, it is important to first of all determine what is meant by consecration. Dictionary.com described Consecration as: “To make or declare sacred, set apart or dedicate to the service of a deity, to make something an object of honor or veneration, to devote or dedicate to some purpose…”. The learned trial Judge said there was no consecration of the mosque to the community in addition to the fact that the mosque was constructed within stool land. In my view these two points are matters of evidence, I will examine the evidence of witnesses at the trial to determine if the mosque subject matter of litigation was in fact consecrated and or built on stool land to exclude the land from Moslem Community ownership.

I refer to the evidence of Alhaji Isaiu Obatula PW3, found at page 256 of the records of appeal, part of his evidence is reproduced as follows:

“I am a member of the Olofin Chieftaincy family. I know the land in dispute. The land is at the middle of Isheri-Oke church. I know the Oshorun family of Isheri. The Oshorun family live at Isheri Olofin on the other side of Ogun River. I know the Oshorun family very well, my mother is from the Oshorun family, she is now dead. My mother during her life time was the principal member of the Oshorun family. She was an important and principal member of the Oshorun family.

I know that the land in dispute belonged to Olofin. There is a mosque built on the land in dispute now. There used to be the house of the secretary of Olofin on where the mosque now stands. The name of the secretary is Solako. I know Salako in person, he did not serve Oba Olofin alone, he served other Obas as their secretary….”

This witness PW3 Alhaji Isaiu Obatula while giving evidence in chief as a witness for the Plaintiffs at page 258 of the records of appeal stated as follows and I quote again:

“The ancestors of the defendants have built the mosque, it was Oba Odunsi Olofin who built the mosque. It was Odunsi who built the 1st Mosque. It was built for the benefit of all Muslim at Isheri and other area. Anybody is a Muslim is allowed to worship in the mosque it not built exclusively for the Olofin family, Oshorun family has no land in the vicinity where the land is located…”

During cross examination at page 260 of the records of appeal, the witness said as follows:

“The land belonged to our forefathers. The defendants have not taken permission from us. It is not say when a mosque is built and dedicated by a person, it is still his mosque and will not be correct to say that the mosque belonged to God.”

The issue to determine is whether the mosque was consecrated and whether it was built within stool land. The learned Trial Judge from the portion of the Judgment reproduced above held the view that the mosque was not consecrated and that it was built within stool land. The learned trial Judge placed substantial reliance on the decision in Akibu v. Onibudo & Ors (Supra). I need to revisit the decision cited and relied on by the learned trial Judge to determine if the indeed took the settled principles of law into appropriate consideration in arriving at a decision.

Bello JSC, (later CJN of blessed memory) in his contribution to the lead Judgment in Akibu v. Onibudo & Ors (Supra) said follows:

“I think I may take judicial notice of the fact that ‘Uthman Mohammed, JCA, who delivered the lead Judgment with which the two other Justices concurred, is learned in Islamic law and is entitled to take judicial notice of the such law in a proper case. I take it that he correctly stated the tenet of Islamic law in his Judgment wherein he said: “Under Islamic law, mosque is regarded as the House of Allah. It belongs to no one. It is not a property which could be inherited and it could not be claimed by anyone. If a Moslem builds a mosque. Unless it is within the walls of his compound, the property in it will automatically become charity for religious use of the Moslem Community. Not even the person who builds it with his own money has the right to exclude any Moslem from praying in it. You cannot possess what you have given away for the worship of God and it is a gift which you cannot recover”.

It is transparently clear from the very case presented by the Appellants that since their ancestor, Sumonu Onibudo, had built the mosque in 1894, on his land and had dedicated it to the Moslem community, the Appellants are incapable of inheriting the mosque under Islamic law and are not therefore entitled to the declaration and possession granted them by the High Court Lagos.”

I must be quick to add that in the said Judgment the Supreme Court of Nigeria referred to Section 73 of the Evidence law cap 39 of Laws of the Lagos State of Nigeria 1973, holding that trial Courts were not permitted to make reference to tenets of Islamic law. In the Judgment delivered at the Court below, the learned trial Judge copiously relied on the decision cited, and held the view that the Mosque subject matter of litigation was not consecrated and that the Mosque was built within stool land thereby excluding the case from the settled principles of law.

I have already reproduced the evidence of PW3 from the records of appeal, PW3 who testified for the Plaintiffs at the lower Court, in his evidence clearly stated that the “Mosque was built at the middle of Isheri-Oke Church”, and that the mosque “was built for the benefit of all Muslim at Isheri and other area. Anybody who is a Muslim is allowed to worship in the mosque it is not built exclusively for the Olofin family…”. From the evidence led at the trial, there is no doubt that the Plaintiffs through their witness clearly admitted that the mosque was built for the benefit of the Community and was built at the middle of Isheri-Oke Church, contrary to the conclusion reached by the learned trial Judge.

It is clear from the materials before the lower Court that the conclusion reached by the learned trial Judge that there was no evidence of consecration of the mosque for the purpose of use of the mosque by the Community and that the mosque was built within the premises or compound of the Olofin family who did the donation arose from clear misapprehension of the facts. It is the duty of the Court to decide between parties on the basis of what has been demonstrated, tested, canvassed and argued in Court. Where the trial Court fails to properly evaluate the evidence led at the trial, the appellate Court is perfectly entitled to do so in order to arrive at a just decision, see: Ayanru v. Mandilas Ltd (2007) 10 NWLR (Pt. 1043) 462.

I hold the view that the Mosque subject matter of dispute between the parties in this appeal was consecrated for the use of the Community and was built in the middle of the Community. This issue is therefore resolved in favor of the Appellants against the Respondents.

The next issue to resolve is “Whether the learned trial Judge properly evaluated the totality of the evidence placed before the Court, before deciding that the defense of laches and acquiescence did not avail the defendants in the instant case”. The Appellants in this appeal referred to the evidence of PW3 at page 260 of the records of appeal to submit that the construction of the new Mosque commenced in 1960 and was completed in 1975. Learned Counsel for the Appellants also referred to the Judgment of the lower Court and submitted that the learned trial Judge appreciated the principles of laches and acquiescence but failed to apply the principles in evaluating the case of the Defendants. Counsel said the defendants/Appellants believed they had the right to the use and occupation of the land, relying on the decision in Agangan v. Olushi (1907) 1 NLR Pg. 66.

The learned Counsel for the Appellants also said the Plaintiffs did not show at the trial before the Court below that they challenged the rights of the Muslim Community to the use and occupation of the land adjacent to the old mosque before it was developed into new mosque.

Appellants also contended that the Respondents did not challenge them when they demolished the old mosque and commenced redevelopment. Counsel for the Appellants also referred the evidence of DW3 at page 290 of the records of appeal. Counsel also referred to the evidence of PW3 where he said the construction of the new mosque commenced in 1960 and was completed in 1975. Counsel for the Appellants submitted that the Plaintiffs knew when the Defendants raised money and expended same on the development of the mosque and took no step. Counsel also submitted that the totality of the attitude of the Plaintiffs was that they were aware of the presence of the Appellants on the land and stood-by, they did not complain. Counsel said the Respondents having stood-by and watched the Appellants demolish the old mosque, constructed new one will not be allowed to raise any claim.

On the part of the Respondents, Counsel referred to Exhibit B, and said the land subject matter of litigation in the suit was declared as Olofin’s stool land, and the defendants are estopped from raising defense of laches and acquiescence. Counsel submitted that the defense of laches and acquiescence is not available to the Appellants. It was also submitted on behalf of the Respondents that before laches and acquiescence could deprive a person of his legal rights, the alleged delay and circumstances must have been such as to make it fraudulent for him to take up and assert the right. Learned Counsel for the Respondents said there was no slightest delay on their part, they objected to the defendant’s entry into the property. Learned Counsel went through the evidence led by the Defendants at the trial and submitted that the Appellants failed to establish that they had been in possession of the property subject matter of litigation for over 100 years.

The doctrine of laches and acquiescence is an interesting principle, it sprung from the maxim that equity aids the vigilant, not the indolent who goes to deep sleep and snoring over his rights. Where a person for some reasons decides to refrain from taking proactive measures to enforce his legal rights, fully conscious of the fact that the rights are being violated, it will be taken that the party has acquiesced in the glaring violation of the right, equity will therefore not come to his aid.

The Supreme Court of Nigeria in Rufus v. Imasuen (2016) LPELR-26065 (SC) per GALADIMA, JSC, held as follows:

“Laches and acquiescence, being equitable defenses in essence, they merely state that if a land owner stood-by while a stranger developed his land in good faith, such owner would be estopped from reaping the benefit of such development and a ourt of equity would not assist him in enforcing his rights. See: Afolabi Coker v. Moriamo Oguntola And Ors. (1984) 2 NSCL 869, Godwin Nsiegbe And Anor v. Obinna Magbemena And Anor (2007) 4 SCNJ 359…”

The lower Court after reviewing the evidence led at the trial, held the view that the defendants have not led evidence of being in possession of the land in dispute for over One hundred years. At page 410 of the records of appeal, the learned trial Judge held as follows:

“…The Plaintiffs evidence was that when the defendants started trespassing on the land in dispute in 1979, they challenged the defendants when the defendants did not yield, the present action being on the land for over a period of 100 years”

The evidence of PW3 Alhaji Isaiu Obatulatula found at page 260 of the records of appeal is relevant in resolving this issue, he said as follows and I quote:

“I did not contribute towards the building of the new mosque, as we did not give them permission to do so and they did not take permission from us. People started worshipping in the old mosque via the time it was built by Oba Odunsi and up to the time it was demolished. I have been worshipping in the old mosque for over 50 years. The new Central mosque was even started in 1960. The new Central Mosque was completed in 1975.”

From the evidence of PW3, witness for the Plaintiffs at the Court below said he had been worshipping in the old mosque for over 50 years and that the construction of the New Mosque started in 1960 and was completed in 1975. I also refer to the evidence of DW3 found at page 288-290 of the records of appeal. DW3 is the 1st Appellant in this appeal, his evidence is also relevant and therefore material to the determination of this issue for determination, he said as follows:

“I came to know the land in dispute through my grandfathers who were on the land in dispute. I met my own father on the land. My forefathers were worshipping on the land in dispute, they were worshipping inside a mosque. I grew up to meet our father in the mosque and I did join them in worshipping in the mosque. The land upon which the mosque was built was given to our forefathers by Oshorun family. The original mosque was a rural mosque. The Oshorun family gave the land upon which the mosque was built to are:

1. Bello Babajelu

2. Salami Asheose

3. Alli Balogun

4. Giwa Fayiji

5. Salami Olonade

6. Alli Otun Bale of Isheri Oke

7. Tiamiu Adeyemi

8. Mohamudu Edun

9. Buraimoh Adenrele

10. Raji Adekumbi

11. Yesufu Balogun

I know Tiamiu Adeyemi, he is my father. I knew all the persons I have mentioned earlier on with the exception of Bello Babajelu. The land was given to them for the purpose of building a mosque and to be worshipping in the mosque. The names of the persons I have mentioned were not the only persons to be worshipping in the mosque.

The mosque is for everybody who is a Muslim and intends to worship in the mosque. I have been worshipping in the said mosque about 70 years now. Alfa worshipping in the mosque, we remained inside the mosque for further meditation and praying. There is a road in front of the mosque Baba Kola alias Ogunyemi built a house near the mosque. The road is about far from the mud mosque at the back of the mosque there is building. On the other side of the mosque there is a road. During the annual Muslim Festival other Muslims usually came to the mosque for worshipping all the worshippers both males and females worship inside the mosque and not outside the mosque.

The old mud mosque is no longer there, it has since been demolished, it was demolished about eleven years ago. Before the demolition of the mud mosque, we have built another mosque, it was built by the side of the old mosque on the same land. On the land upon which the new mosque was built, it was previously used for the growing of cash crops such as plantain, oranges, the money realized from the sale of the crops is used in buying water for the use of the worshippers.

We started building the new mosque about thirty years ago, it was completed about 15 years ago. The new mosque was built because the mud mosque no longer contain our worshippers. The new mosque was built of cement blocks. The money used in the building of the mosque came from donations and contributions from worshippers. Since the completed of new mosque about 15 years ago we have been worshipping in the new mosque. From the inception of the building of the new mosque to its completion no one ever disturbed us on the land and the mosque to its completion of the new mosque no one also disturbed us from worshipping in the mosque. The old mud mosque was demolished about 11 years ago, it was demolished because the mud mosque became dilapidated and the neighbor were complaining about it hence it was demolished after the demolition of the old mosque we started putting a new construction on the same land known as Arabic School……..”

The evidence of DW3 is that he met his father worshipping in the mosque and that he worshipped in the mosque for about seventy years, construction of the new mosque started about thirty years ago and completed about 15 years ago. I carefully compared the evidence of PW3 and the evidence of DW3, in my humble understanding the two witnesses even though representing diverse interests of the parties in litigation seem to be saying the same thing, while the Court formed the opinion that the Plaintiffs were active and vigilant in asserting their rights, both parties seem to be in agreement that construction of the new mosque started about thirty years ago, that construction started in 1960 and completed in 1975. The duty to evaluate and appraise evidence at the trial is preeminently within the exclusive province of the trial Court which has the advantage of seeing and hearing the witnesses, with the advantage of assessing the demeanor of the witnesses. It is also the law that where the trial Court is not swift in taking advantage of its pre-eminent position, the appellate Court will interfere to redress the wrong, in the instant case it is clear the learned trial Judge did not fully take advantage of his pre-eminent position. It was wrong in my view for the lower Court to hold that the Respondents were vigilant in protecting their rights against violation, especially in the face of the evidence given by PW3 that he also worshipped in the mosque for about fifty years. I think the facts are hard and completely uncontroverted, the essence of the equitable principles of laches is to ensure that a party who is guilty of unreasonable delay in asserting his right or is inordinately negligent in asserting his claim does not benefit from his indolence. The laws are designed to come to the aid of the vigilant and watchful not parties who are manifestly indolent.

I am of the view that the lower Court was wrong in coming to the conclusion that defense of laches and acquiescence was not available to the Appellants. This issue is also resolved in favor of the Appellants against the Respondents.

Having resolved issues one and two in favor of the Appellants, it follows therefore that this appeal is meritorious and deserves to succeed, it therefore succeeds, and the Judgment of the lower Court delivered on the 23rd Day of February 1996 by Martins J, in suit number ID/682/1981 is hereby set aside.

Parties in this appeal shall bear their respective costs.

GEORGEWILL, JCA

I was afforded the privilege of a preview of the draft of the comprehensive lead judgment just delivered by my learned brother, TIJJANI ABUBAKAR, JCA, with which I agree and hereby adopt as mine. I shall only say a word or two by way of my humble contribution to the lucid reasoning adroitly marshalled out in the lead judgment leading to the impeccable conclusion that the appeal was highly meritorious and ought to be allowed.

The crux of this appeal is two folds, namely: whether the place in dispute was ever consecrated as a place of worship by Salako for the Muslim Community in Isheri-Oke Church; and whether the defence of ‘laches and acquiescence’ availed the Appellants?

On both issues the Court below had found in favour of the Respondents. There is evidence in the printed record of use of the place as a place of worship as a Mosque for well over fifty years. Indeed worship has continuously been conducted in that place for about seventy years without any let or hindrance from any person, including the members of the family and successors in title of Salako.

The above pieces of unchallenged evidence, in my view, immediately gave rise to the issue of a presumption, though rebuttable, that the place was set apart and or dedicated for use by Salako as a place of worship by the Muslim Community in Isheri-Oke Church. To consecrate a thing or something or place simply means to make or declare or set apart or dedicate to the service of a supreme being, Allah the Beneficent and Most Merciful and on the evidence it is very clear to me that the continuous use of the place solely for the purpose of worship of Almighty Allah by the Muslim Community in Isheri-Oke Church for about seventy years was indicative of the fact that the place was set apart and dedicated to the service of Almighty Allah by Salako.

In Phipson on Evidence, Eleventh Edition, the learned authors, while expatiating on the principle of presumption of regularity with examples, had stated interalia thus:

“Thus, the constant performance of divine services from an early period in a Chapel raises a rebuttable presumption of its due consecration…. User of a way by the Public as of right for twenty years gives rise to a presumption of dedication”

See also B. A. Shitta-Bey v. Attorney General of the Federation & Anor. (1998) 10 NWLR (Pt. 570) 392; Eaglehill Ltd v. J. Needham (Builders) Ltd (1972) 3 All ER 895.

It follows that to consecrate a place as a place of worship need not necessarily be by a formal ceremony, though desirable or written or public declaration. Thus, constant and or continuous performance of divine services, as in the instant appeal for about seventy unintemrpted years, raises a rebuttable presumption of its due consecration and in the absence of any evidence to the contrary the presumption remained un-rebutted and the Court below was therefore, wrong to hold that the place was not consecrated, that is set apart, by Salako for the worship of Almighty Allah by the Muslim Community in Isheri-Oke Church. This finding to that effect by the Court below was perverse having not been borne out by the strength of the evidence led before it and thus liable to be set aside.

In similar vein, with the unchallenged evidence of use of the place from the time of Salako for about seventy years prior to the commencement of the action in the Court below by the Respondents, the doctrine of ‘laches and acquiescence’ was clearly called into play and thus availed the Appellant as relied upon by them but erroneously held not to be applicable by the Court below. In my finding, and as already elaborately elucidated in the lead judgment, the defence of ‘laches and acquiescence’ clearly availed the Appellant to defeat the belated afterthought claims of the Respondent, which ought to have been dismissed by the Court below.

It is in the light of the above few comments of mine and the fuller reasons so adroitly marshalled out in the lead judgment that I hold too that the appeal has merit and ought to be allowed. I too hereby allow the appeal and shall abide by theconsequential orders made in the lead judgment.

TUKUR, JCA

I read before today the lead judgment just delivered by my learned brother TIJJANI ABUBAKAR, JCA. I agree with the reasoning and conclusion arrived of in the judgment, adopt it as mine with nothing further to add.

Appearances:

W. I. Roberts with him, B. O. Adebayo For Appellant(s)

Respondent absent For Respondent(s)