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The Doctrine of Laches and Acquiescence in Nigerian Law

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Equity Aids the Vigilant, Not Those Who Sleep on Their Rights

Introduction

The doctrines of laches and acquiescence are equitable principles which may prevent a person from enforcing a right where the person’s delay, silence or conduct makes it unjust to grant the relief sought.

They commonly arise in disputes involving:

  • title to land;
  • possession and trespass;
  • boundary encroachment;
  • recovery of property;
  • injunctions; and
  • claims concerning property allegedly held in trust.

Although the expressions are often used together, they are not identical. Laches principally concerns unreasonable delay in asserting a right. Acquiescence concerns knowledge of another person’s conduct and conduct or silence suggesting acceptance of that conduct.

The cases show that neither doctrine is established merely by alleging that a claimant waited for a long time. The defence must be properly pleaded and supported by evidence.

Meaning of Laches

Laches is an equitable defence founded on unreasonable delay in asserting or enforcing a right.

The court does not apply one fixed period of delay in every case. It considers the circumstances, including:

  1. when the claimant became aware of the alleged infringement;
  2. whether the claimant had an opportunity to act earlier;
  3. the length of the delay;
  4. whether the delay was explained;
  5. what the defendant did during the period of delay; and
  6. whether granting relief would now be inequitable.

The important question is not merely how long the claimant waited. The question is whether, in the circumstances, it would be unfair to permit the claimant to enforce the right after the delay.

In Kayode v. Odutola, the Supreme Court considered a land dispute involving competing titles and a plea of laches and acquiescence. The plea did not successfully bar the respondent’s claim. The case demonstrates that the doctrines must be considered alongside the parties’ legal rights and the evidence concerning their respective titles and conduct. KAYODE VS. ODUTOLA (2001) (opens in a new tab) (Supreme Court of Nigeria, Suit No. SC.145/1997)

Meaning of Acquiescence

Acquiescence arises where a person, with knowledge of another’s conduct affecting his or her rights, stands by or behaves in a manner reasonably suggesting acceptance of that conduct.

Acquiescence may be alleged where a claimant:

  • knows that another person is occupying or developing disputed land;
  • observes an encroachment without timely objection;
  • permits another person to incur expenditure;
  • makes statements suggesting acceptance; or
  • fails to assert a right in circumstances where objection would reasonably be expected.

Knowledge is central. A person cannot ordinarily be said to have acquiesced in conduct of which he or she was unaware.

Silence, by itself, is also not necessarily acquiescence. The court must examine the claimant’s knowledge, the surrounding circumstances and the significance of the claimant’s conduct.

Distinction Between Laches and Acquiescence

The doctrines may overlap, but they focus on different matters.

Laches

Laches focuses on unreasonable delay in asserting a right and the inequity of granting relief after that delay.

Acquiescence

Acquiescence focuses on knowledge and conduct or silence suggesting acceptance of another person’s conduct.

Waiver

Waiver generally involves the intentional abandonment of a known right. Although it may arise by conduct, the facts must support an inference that the right was intentionally relinquished.

A party relying on more than one of these doctrines should plead the facts supporting each defence clearly.

Equitable Defences

Laches and acquiescence are equitable defences. They are particularly relevant where the claimant seeks a discretionary remedy such as:

  • an injunction;
  • specific performance;
  • rescission;
  • recovery of possession; or
  • other equitable relief.

The doctrines do not operate automatically. The court must consider the conduct of both parties and decide whether the claimant’s conduct has made it inequitable to grant the relief sought.

The maxim often associated with the doctrines is:

Equity aids the vigilant, not those who sleep on their rights.

The maxim does not mean that every delay defeats a claim. It expresses the equitable concern that a person should not knowingly permit another to act to his or her disadvantage and later seek relief as though the delay had no legal significance.

The Defence Must Be Pleaded

A party relying on laches or acquiescence must plead the material facts constituting the defence.

This principle is firmly illustrated by Isaac v. Imasuen, a Supreme Court decision concerning a dispute over land. The case emphasised that laches and acquiescence are special defences which must be specifically pleaded and proved. A general plea of reliance on “all legal and equitable defences” is insufficient to place the material facts of laches and acquiescence properly in issue. ISAAC V. IMASUEN (2016) (opens in a new tab) (Supreme Court of Nigeria, Suit No. SC. 172/2006)

A proper pleading should ordinarily identify:

  • the right allegedly delayed or abandoned;
  • when the claimant became aware of the relevant facts;
  • the period of the alleged inaction;
  • what the defendant did during that period;
  • whether the defendant relied on the claimant’s conduct; and
  • the prejudice or injustice that would result if the claimant were allowed to proceed.

The requirement serves the interests of fair hearing. The claimant must know that delay, silence, knowledge or alleged acceptance will be relied upon and must have an opportunity to answer the allegations.

Burden of Proof

The burden of proving laches and acquiescence rests on the party asserting the defences.

In Ojeme v. Ojeme, the Court of Appeal considered the doctrines in a land dispute involving an alleged trust. The court held that the onus of proving laches and acquiescence lay on the defendants. The court also treated the defence as premature at the interlocutory stage because evidence necessary to establish it had not yet been presented. OJEME VS. OJEME (2001) (opens in a new tab) (Court of Appeal (Benin Division), Suit No. CA/B/125/97)

The defendant should therefore lead evidence concerning:

  • the claimant’s knowledge;
  • communications between the parties;
  • the duration and nature of the defendant’s possession;
  • development or expenditure on the property;
  • any protest by the claimant; and
  • the alleged prejudice resulting from the delay.

A bare assertion in pleadings or final address is not a substitute for evidence.

Mere Delay Is Not Enough

Mere delay does not automatically establish laches.

The delay must be unreasonable in the circumstances, and the facts must show why it would be inequitable to allow the claim or grant the relief sought. Possible explanations for delay may include:

  • lack of knowledge;
  • fraud or concealment;
  • negotiations between the parties;
  • reliance on a promise;
  • disability or incapacity;
  • pending customary or administrative proceedings; or
  • an attempt to resolve the dispute without litigation.

In Agbon-Ojeme v. Selo-Ojeme, the Court of Appeal considered whether a claim relating to land was affected by limitation, laches and acquiescence. The case illustrates that failure to display urgency may be relevant to laches, but the defence still requires substantial proof. It also demonstrates that statutory limitation and equitable delay are separate questions. AGBON-OJEME V. SELO-OJEME (2020) (opens in a new tab) (COURT OF APPEAL (BENIN DIVISION), Suit No. CA/B/298/2008)

Accordingly, the correct approach is to consider delay together with knowledge, explanation, conduct, reliance and the overall justice of granting the relief claimed.

Knowledge and Conduct in Acquiescence

To establish acquiescence, the defendant will generally need to show that:

  1. the claimant knew or ought reasonably to have known of the relevant conduct;
  2. the claimant had an opportunity to object;
  3. the claimant failed to object or acted inconsistently with the right asserted; and
  4. the defendant relied on the conduct or would suffer inequity if the claimant were allowed to proceed.

The claimant’s silence must be considered in context. It may have resulted from ignorance, negotiations, family relations, fear or an attempt to settle the dispute.

The court should therefore avoid treating every period of inactivity as acquiescence.

The Effect of Protest

A timely and consistent protest is generally inconsistent with acquiescence.

A claimant may preserve the right to object by:

  • writing a demand or warning letter;
  • protesting the alleged encroachment;
  • demanding that construction or occupation cease;
  • reporting the matter to a relevant authority;
  • commencing proceedings; or
  • taking other steps clearly inconsistent with acceptance.

In Ekiuwa Inneh v. Blessing Osula, the claimant alleged repeated boundary encroachment. The authority record indicates that the claimant protested each alleged intrusion and that laches and acquiescence were not established. The case illustrates that a claimant who actively objects to an infringement is not readily treated as having accepted it merely because proceedings were not commenced immediately. EKIUWA INNEH V. BLESSING OSULA (2007) (opens in a new tab) (High Court of Justice, Edo State, Benin Judicial Division, Suit No. B/395/2002)

The Court Should Not Raise the Defence Suo Motu

Because laches and acquiescence depend on factual matters, the court should not ordinarily raise them suo motu where the parties have not pleaded and argued them.

In Iornenge v. Ugondo, the Court of Appeal held that the trial court improperly invoked laches and acquiescence without the respondents having properly raised the defences. The decision underlines the importance of pleadings and fair hearing in the determination of equitable defences. IORNENGE V. UGONDO (2016) (opens in a new tab) (Court of Appeal (Makurdi Division), Suit No. CA/MK/282/2013)

The court should determine the case presented by the parties, not introduce a factual defence that one party has had no opportunity to address.

The procedural error did not, however, mean that the appellant automatically succeeded. The appeal was ultimately dismissed because the decision could independently be supported by the evidence concerning title and possession. IORNENGE V. UGONDO (2016) (opens in a new tab) (Court of Appeal (Makurdi Division), Suit No. CA/MK/282/2013)

Application to Land Disputes

Land disputes provide one of the most common contexts in which laches and acquiescence are pleaded.

A defendant may rely on the doctrines where the claimant allegedly stood by while the defendant:

  • entered into possession;
  • erected buildings;
  • fenced the land;
  • cultivated it;
  • granted leases;
  • made substantial improvements; or
  • spent money developing the property.

The defendant must nevertheless establish the claimant’s knowledge and the circumstances of the alleged delay. Long possession, without more, is not automatically proof of acquiescence.

The court should distinguish between:

  • occupation known to and accepted by the claimant;
  • occupation unknown to the claimant;
  • occupation accompanied by repeated protest;
  • occupation during continuing negotiations; and
  • occupation arising from a genuine dispute concerning the boundaries or identity of the land.

Odesanya v. R.T., D.C.L.M. (2016)

Odesanya v. R.T., D.C.L.M. concerned a claim to land at Nos. 2–6, Ayodele Okeowo Street, Gbagada, Lagos. The appellant claimed ownership through the Oloto Royal Family, while the respondent, the Registered Trustees of Deeper Christian Life Ministry, relied on an earlier conveyance and a subsequent deed of assignment.

The respondent relied on laches and acquiescence. According to the authority record, the appellant had waited an unreasonable length of time before asserting ownership and had permitted the respondent to invest in and develop the land without protest. The elements of laches and acquiescence were therefore held to be applicable against the appellant. ODESANYA V. R.T., D.C.L.M. (2016) (opens in a new tab)

The significance of the case is that the court considered more than the mere passage of time. It considered the alleged delay together with:

  • the claimant’s opportunity to assert ownership;
  • the claimant’s failure to protest;
  • the respondent’s investment in the property; and
  • the change of position said to have resulted from the claimant’s inaction.

Odesanya should, however, be understood as a fact-specific decision. It does not mean that every delay in asserting title automatically establishes laches or acquiescence. The relevant question remains whether the claimant knowingly delayed in circumstances in which granting relief would be inequitable.

Laches and Acquiescence Compared with Statutory Limitation

Laches must be distinguished from statutory limitation.

Statutory limitation

Limitation is imposed by legislation. The relevant statute prescribes the period within which a particular claim must be commenced, subject to applicable exceptions.

Laches

Laches is an equitable doctrine. It is not based on one universally prescribed period. The court considers whether enforcement of the right would be inequitable in the circumstances.

A claim may therefore be:

  • statute-barred;
  • affected by laches;
  • affected by both limitation and laches; or
  • brought within the statutory period but still unsuitable for equitable relief because of the claimant’s conduct.

In Ojeme v. Ojeme, the court considered the relationship between a claim involving trust property, limitation and laches. The case recognised that the defendants bore the onus of proving the equitable defences and that their assertion was premature without supporting evidence. OJEME VS. OJEME (2001) (opens in a new tab) (Court of Appeal (Benin Division), Suit No. CA/B/125/97)

In Agbon-Ojeme v. Selo-Ojeme, the court also considered limitation separately from laches and acquiescence. AGBON-OJEME V. SELO-OJEME (2020) (opens in a new tab) (COURT OF APPEAL (BENIN DIVISION), Suit No. CA/B/298/2008)

The Doctrines Do Not Replace Proof of Title

Laches and acquiescence do not replace proof of ownership or create a title where none exists.

In a land dispute, the court may still need to determine:

  • the root of title;
  • the validity of the documents relied upon;
  • the identity and boundaries of the land;
  • possession; and
  • the legal relationship between the parties.

Only after examining the parties’ rights and the surrounding facts can the court determine whether the claimant’s delay or conduct makes the relief inequitable.

This is illustrated by Kayode v. Odutola, where the Supreme Court considered the alleged equitable defences alongside the competing claims of title and did not permit the plea of laches and acquiescence to bar the respondent’s claim. KAYODE VS. ODUTOLA (2001) (opens in a new tab) (Supreme Court of Nigeria, Suit No. SC.145/1997)

Practical Requirements for Pleading the Defence

A defendant relying on laches and acquiescence should plead facts addressing the following questions:

  1. What right is the claimant asserting?
  2. When did the claimant become aware of the alleged infringement?
  3. How long did the claimant wait before acting?
  4. Was there an explanation for the delay?
  5. What did the defendant do during the period of inaction?
  6. Did the claimant protest or otherwise object?
  7. Did the defendant rely on the claimant’s silence or conduct?
  8. Did the defendant spend money or materially alter his or her position?
  9. What prejudice would result if the claimant succeeded?
  10. Why would granting the relief now be inequitable?

The evidence at trial should correspond with the pleaded facts. A defendant who pleads delay but fails to prove knowledge, reliance or circumstances making the claim inequitable may not establish the defence.

Key Principles from the Cases

The authorities discussed support the following propositions:

Conclusion

Laches prevents a claimant from enforcing a right after unreasonable delay where it would be inequitable to grant relief. Acquiescence applies where, with knowledge of another person’s conduct, the claimant’s silence or behaviour reasonably suggests acceptance.

Neither doctrine operates automatically. The party relying on the defence must plead the material facts and prove them by credible evidence. The court must consider the claimant’s knowledge, the length and explanation of the delay, any protest, the defendant’s reliance or change of position, and the justice of granting the relief sought.

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