UNIT 3: LACHES AND ACQUIESCENCE
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main content
3.1 Equitable defence of Laches
3.2 Distinction between proprietary estoppel and laches
3.3 Operation of the doctrine
3.3 Laches and customary law
3.5 Limit of the doctrine
3.6 He who comes to equity must come with clean hands
3.7 Operation of the doctrine
3.8 The scope of clean hands
4.0 Conclusion
5.0 Summary
6.0 Tutor-Marked Assignments
7.0 References / Further Reading
1.0 INTRODUCTION
In the last unit, we considered the doctrine of proprietary estoppels. In this unit, we will look at another equitable defence which is laches and acquiescence. The equitable defence of laches is another important doctrine in the development of equity jurisdiction in the Nigerian Legal Sys- tem. 'It is no exaggeration to state that of all the equitable rules that have been invoked to mould the application of the indigenous West African laws, the maxim 'equity aids the vigilant' has been the most active.' See Daniels; The Common Law in West Africa (1964) p.304.
2.0 OBJECTIVES
By the end of this unit you should be able to:
(i) Explain the equitable defence of laches and acquiescence;
(ii) Distinguish between proprietary estoppel and laches;
(iii) Explain laches and customary law;
(iv) Describe the maxim ‘He who comes to equity must come with clean hands’;
(v) Explain the operation of the doctrine; and
(vi) Define the scope of clean hands.
3.0 MAIN CONTENT
3.1 Equitable defence of Laches
Under the English legal system, the importance of the doctrine is well recognised. Hanbury con- ceded that the doctrines of laches and acquiescence run through the whole of equitable doctrine. See Modern Equity (7th Ed.) p. 633. This doctrine emanated from the maxim 'delay defeats equities' or 'equity aids the vigilant'. Simply put, the substance of the doctrine seems to be that a liti- gant who has unreasonably slept over his right may not be granted equitable relief in respect of this right particularly where the granting of such relief will result in hardship to the other party who has acquired the right. The exercise of this equitable jurisdiction, like all others, is discre- tionary and, in the usual manner, the discretion may not be exercised arbitrarily.
The doctrine may be invoked where the conduct or neglect of the plaintiff indicates to the defen- dant a waiver of the plaintiff's rights, which rights have been acquired by the defendant. See Ibe- ziako v. Abutu (1958) II E.N.L.R. 24, 27; Blake v. Gale (1886) 32 Ch.D. 571. As Lord Camden put it, a court of equity: 'has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this court into ac- tivity but conscience, good faith; and reasonable diligence; where these are wanting, the court is passive and does nothing.' See Smith v. Clay (1767) 3 Bro. C.C. 639n at 640n.
In Erikitola v. Alli & Others (1941) 16 N.L.R. 56, Butler Lloyd Ag. C.J., delivering the judgment of the Supreme Court, contended that laches consists of standing by while an infringement of one's rights is in progress. In this case, the Supreme Court refused to invoke the doctrine because the owners of the rights in dispute did not stand by but posted caution notices on both occasions when an infringement of their rights by the sale of the property was attempted. See further, Odunsi v. Ku- foriji (1948) 19 N.L.R. 7.
In Chukwuma v. Ifeloye (2008) 12 S.C. (Pt. II) p. 291, the Supreme Court held:
“That since there was no evidence that the Plaintiff/Appellant had been aware of the tres- passer’s entry upon her land earlier than the time she caused a “Stop Work Order” to be served on the Defendant/Respondent or that she had caused the “Stop Work Order” to be va- cated before she ultimately sued in court. Merely negotiating with the defendant/appellant is not enough evidence to support the conclusion that she had waived the trespass committed on her land. It would have been a different situation if she had, following the negotiation, caused the “Stop Work Order” to be vacated.”
The circumstances in which the doctrine may be invoked were explained by Lord Selbourne, in his often-quoted passage in Lindsay Petroleum Co. v. Hurd (1874) L.R. 5 P.C. 221 at 239-240, said,
'The doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere de- lay, that delay, of course, not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy'.
The circumstances warranting the invocation of the doctrine were aptly stated by the Supreme Court in the case of Fagbemi v. Aluko (1968) 1 All N.L.R. 233 at 237. In considering the equitable doctrine of laches, the court does not act only on the delay by the plaintiff, but must also consider (i) acquiescence on the plaintiff's part, and (ii) any change of position that has occurred on the de- fendant's part.'
3.2 Distinction Between Proprietary Estoppel and Laches
No doubt, there is much similarity between laches and equitable estoppel; hence, the tendency, on the part of the courts to confuse one with the other. The basis of this confusion seems to be the question of acquiescence which is common to both doctrines. In Aganran v. Olushi (1907) 1 N.L.R. 66 at 68, the right of the plaintiff had been infringed by the defendant, but the plaintiff took no steps to assert his right until 3 years after the violation. Winkfield J., delivering the judgment of the Full Court said 'In the absence of any evidence I think that it must be taken that the defendants did not know that the plaintiff had withdrawn his consent to the sale. Although he was aware that the defendants were suing, as owners, to eject the occupiers of the land and knew the terms of the settlement, he permitted the defendants to pay the compensation and to take possession of the land without objection. For nearly three years he took no steps to set the sale aside. During this period he also suffered the defendants to erect the houses on the lands without interference. I think that the action of the plaintiff amounted to an expression of intention or a promise not to exercise the right which he possessed.
The facts of the case could give rise to either estoppel or laches. On the question of estoppel, there was the mistaken belief on the part of the defendants that they were the owners of the land and, on the strength of this belief they proceeded to expend money on the land to the knowledge and ac- quiescence of the plaintiff, the real owner of the land. Thus, acquiescence of the plaintiff to the de- fendants' activities on the land created an equity in favour of the defendants which equity could be satisfied by the invocation of the doctrine of proprietary estoppel. Here acquiescence was only rele- vant as at the time the right was being infringed.
On the other hand, acquiescence in laches means unexplained delay in asserting one's right after in- fringement of such rights. In this case, for nearly three years after his right had been infringed, the plaintiff took no steps to assert his rights. In the circumstance, his claim might have become stale and therefore could be defeated by delay resulting from his acquiescence. Winkfield J., purportedly decided the case on laches but the learned judge relied on a proposition which is more consistent with proprietary estoppel than with laches. See further, Ukwa v. Awka Local Council (1966) N.M.L.R. 41, where laches was confused with estoppel.
Pennigton, J., in his dissenting judgment, attempted to distinguish between acquiescence as integral part of estoppel and acquiescence as an element in laches. He said:
'Acquiescence may defined as acquiescence under such circumstances as that assent may be reasonably inferred from it and is no more than an instance of the law of estoppel by words or conduct. But when once the act completed without any knowledge or without any assent on the part of the person whose right infringed, the matter is to be determined on very different legal consideration .... Mere submission the injury for any time short of the period limited by statute for the enforcement of the right of action cannot take away such right, although under the name of laches it may afford a ground for refusing relief under particular circumstances.' See Aganran v, Olushi (supra) at 68.
Thus, as Betuel, J. stated in Nzekwu v. Nwakobi (l960) IV E.N.L.R. 59 at 69, acquiescence is used in two senses: in one case, it means that a person abstains from interfering while his legal rights are be- ing violated: in another sense, it means he takes no steps to enforce his rights when a violation of his rights, of which he did not know at the time, is brought to his notice. In the first case, the term ac- quiescence forms an integral part of estoppel; in the second case, the person is said to be guilty of culpable delay, that is, laches of which acquiescence is an important element. Therefore, acquiescence in the first sense operates by way an implied waiver resulting from the fact that the owner of the right which has been violated, has failed to assert it with promptitude. See further, Finn v. Ayeni (1964) N.M.L.R 130 at 133; Taiwo v. Taiwo (1956) 3 F.S.C. 80 at 82.
Acquiescence, as an integral part of proprietary estoppel, implies fraud which is the basis of the eq- uity in favour of the person who has expended money on the land: the owner of the land should not stand by and allow another person who thinks the land is his to make improvements; he wants to take the improvements and thereby cheat the other person of the expense he is making. See Ukwa v. Awka Local Council (supra) at 46. But in laches, acquiescence implies negligence or indolence on the part of a person to assert his right with promptitude after such right has been violated. See Lord Camden in Smith v. Clay (1767) 3 Bro. C.C. 639n at 40n.
Generally it may be stated that so far, the scope of proprietary estoppel is limited to cases where money is expended on land through the passive or active acquiescence of the true owner of the land; though there is no reason why the doctrine should not be applied to any other type of property on which money has been so expended. Laches, on the other hand, is of a more flexible application in that it applies to a variety of cases and circumstances either to bar claim to specific equitable relief or the exercise of general equitable jurisdiction. See Lord Selbourne in Lindsay Petroleum Co. v. Hurd (1874) L.R 5 P.C. 221 at 239-40.
Whenever the defence of proprietary estoppel is sustained, it binds not only the parties to the action but also their successors-in-title. As the Judicial Committee of the Privy Council stated in Nwakobi v. Nzekwu (1964) 1 W.L.R 1019 at 1024, estoppel given the words or acts upon which a defendant has relied and altered his position, bars the remedy from that time on, both in the hands of the origi- nal actor and in the hands of those who claim title through him, unlike laches which, in essence, is a personal disqualification, binding only the parties to the action and not their successors-in-title.
3.3 Operation of the Doctrine
Circumstances warranting the invocation of the doctrine are not in doubt. Delay in asserting ones right is an important factor though not necessarily the controlling factor; where the defence against the relief sought by the plaintiff is founded upon mere delay and the delay does not amount to a·bar of the relief by any statute of limitations, the court will proceed to consider the length of the delay, the inadequacy or unsatisfactory nature of the explanation of the delay, the nature of the acts done during the interval, that is, the degree of change which has occurred and whether in the circums- tances the balance of justice or injustice is in favour of granting the remedy or withholding it.
In Agbeyebe v. Ikomi (l953) 12 W.A.C.A. 383 at 386, the plaintiff's action to set aside the sale of his property was in 1938 struck out by the Court. He did not take any further proceedings until 1947 when he moved the Supreme Court to re-list the suit which had been struck out in 1938. He gave, as reasons for the undue delay, the death of his legal advisers, his own illness and the difficulties of as- certaining his true position in the matter. But during the interval the defendant had rebuilt and occu- pied the property. The decision of the Supreme Court in favour of the plaintiff was reversed by the West African Court of Appeal on the ground that the plaintiff was guilty of laches.
On appeal to the Privy Council, the Judicial Committee of the Privy Council agreed with the deci- sion of the West African Court of Appeal. The length of the delay, the inadequacy of the explanation of the delay, and the consequences of setting aside the sale as against the defendant who was a bona fide purchaser for value and who had been in occupation of the' land during the whole period of nine years and had apparently altered the buildings thereon caused a balance of justice in favour of the defendant within the meaning of laches as expanded by Lord Selbourne in Lindsay Petroleum Compa- ny v. Hurd (1874) L.R. 5 P.C. 221.
The doctrine operates to bar a variety of claims for equitable reliefs, for example, specific perfor- mance, injunction, rescission etc. These are special reliefs in equity and will only be given on condi- tion of the plaintiff coming with great promptitude or as soon as the nature of the case will admit. Any substantial delay after negotiations have terminated and the cause of action has arisen - such as a year or probably less may be a bar. Thus, in Ibeziako v. Abutu (1959) III E.N.L.R. 24 at 27, a party to an agreement and who was clearly entitled to an order for specific performance of the agreement was denied the remedy because of his failure to claim the remedy with promptitude.
In Ephraim v. Asuquo (1923) 4 N.L.R 98 at 99, a claim by the plaintiff to revoke a decree made in fa- vour of the'defendant two years after the decree had been made was rejected on the ground that the plaintiff and his people were guilty of laches for they had every opportunity of opposing the grant, of which opportunity they did not avail themselves. 'If they were anxiously desirous of administering the estate, why did they wait a whole year to make the first move, and why did they wait another twelve months before getting the case on the hearing list?' They showed no anxiety to get the hearing expedited, and in the interval the defendant had already administered the estate which was ready for distribution. It would be inequitable if the relief sought were to be granted.
In T. Taylor & Ors. v. Kingsway & Nigerian Properties (1965) N.M.L.R. 103 at 105, the plaintiffs brought this action for recovery of possession of a property situate in Lagos. The delay in bringing the action was twentyfive years, during which from time to time, the defendants had spent vast sums of money on building and improving what are now known as the Kingsway Stores, in the belief that they had the fee simple; the plaintiffs knew of that belief as far back as 1938, but they gave no ex- planation at the trial on why they stood by during those twenty-five years. The Supreme Court held that the defence of laches was sufficiently established to defeat the plaintiffs' claim for recovery of possession. The fact that the plaintiffs were remainder-men at the time the property was acquired by the defendants was not a satisfactory explanation for the delay, since they could have brought an ac- tion at that time or thereafter to assert their estate and thereby prevented the defence of laches being set up against them. See Wheelright v. Walker (1883) 23 Ch.D. 752.
3.4 Laches and Customary Law
The doctrine has also been invoked to lessen the rigours and hardships which would have resulted in the strict application of certain rules of customary law; otherwise it would have been an intolerable injustice, for example, to deprive a person and his successors in title of a property which they have occupied and developed for half a century or more simply because customary law does not recognise adverse possession.
The general principle was stated by Speed, Ag. C.J. in the early case of Lewis v. Bankole (1908) 1
N.L.R. 81 at 83-84. 'The rules of equity are, or ought to be, perfectly well known to this court, and if a native law or custom is found to be repugnant to the fundamental rules of equity it is absolutely the duty of the court to ignore it. Thus, any attempt to revive an obviously stale claim, to constitute a state of affairs which has been openly or tacitly abandoned by all concerned, to upset a settlement which has been acquiesced in by all parties for a long time and upon which all parties have by mu- tual even though tacit consent acted for a number of years, is repugnant to the fundamental rules of equity and should not be countenanced by this court on the ground that it is in accordance with na- tive law or custom, however harmless and admirable that native law or custom may be. In essence, the courts will not allow the strict rules of customary law to be invoked in cases when the effect is, in equity, unjust. See Nchiraheme Kojo Ado v. Buoyemhene Nwandwo Wusu (1938) 4 W.A.C.A. 96 at 99.
The rule of customary law of property that the original owner of land who has not specifically di- vested himself of his ownership can, after any length of time and under any circumstances obtain re- covery of his land from persons setting up adverse title, whatever may be the detriment caused to such persons by the fact that the original owner chose to sleep on his rights, will not now be applied in its entirety. See Bokitsi Case (1902) Sarbah's F.L.R. 159 at 160; (1902) Renner Reports at 239. In Akpan Awo v. Cookey Gam (1913) 2 N.L.R. 100 at 101, the Full Court refused to give effect to this rule of customary law because the defendants had been in undisturbed possession for a number of years with the knowledge and acquiescence of the plaintiffs' ... it would be wholly inequitable to de- prive the defendants of property of which they have held undisputed possession and in respect of which they have collected rents for so long a term of years with the knowledge and acquiescence of those who now dispute their title, even if it were as clear as it is upon the evidence doubtful that they entered into possession, contrary to the principles of native law.'
The proposition is a modification of the strict rule that there is no prescriptive title known to custo- mary law; the Courts on the grounds of equity will not allow a party to call in aid strict principles of customary law for the purpose of bolstering up a stale claim. See Rihawi v. Aromashodun (1952) 14
W.A.C.A. 204 at 207. In Fiscian v. Nelson (1946) 12 W.A.C.A. 21 at 22, the plaintiff's claim was for a declaration of title to a land which the defendant had occupied for 30 years during which period he had erected dwelling-houses. It was held by the West African Court of Appeal that a true-owner would not be allowed to claim land where he had stood by for a long time while someone else occu- pied the land, and incurred pecuniary commitments under the impression that he was entitled to the land, notwithstanding that prescription is unknown to customary law and that no statutory limitation applies to the case.
Surely it is just and equitable to hold it inequitable to deprive persons of property of which they have held undisputed possession for many years and to decide that the knowledge and acquiescence of the person who originally owned the land may fairly be presumed. See Suleman v. Johnson (1951) 13 W.A.C.A 213 at 214. The original owner has created a position in which it would be inequitable to hold that he is now entitled to rely upon customary law to support his claim to any rights of ownership whatever. See Akuru v. Olubadan-in-Council (1954) 14 W.A.C.A. 523, 525.
This modification of the strict rule of customary law by the equitable doctrine of laches started in an obiter dictum. See Bokitsi Case (supra). It has been followed in many decisions, and the rule it enun- ciated is now well established. See the following cases: Akpan Awo v. Cookey Gam (1913) 2 N.L.R 100; Miller v. Kwayisi (l930) 1 W.A.C.A. 7; Adu v. Kuma (1937)3 W.A.C.A. 240; Ilori v. Oloto (1941) 7 W.A.C.A. 154; Rihawi v. Aromashodun (1952) 14 W.A.CA 204; Akuru v. Olubadan (1954) 14 W.A.C.A. 523; Abey v. Ollenu (1954) 14 W.A.C.A. 567; Saidi v. Automobile Co. Ltd. (1956) 1 F.S.C. 107; Odutola v. Akande (1960) 5 F.S.C. 142; Ogundimu v. Adeoshun (1964) L.L.R 233.
Staleness of the real owner's claim after a long period of time during which acquiescence may be ex- press or implied is an important factor grounding the defence of laches, for it would be unreasonable and indeed inequitable after the lapse of so many years to expect the adverse claimant to be able to prove his case. See Oloto v. Attorney-General (1957) 2 F.S.C. 74, 83.
Onus of Proof
When the defence pleads acquiescence, it is not for the plaintiff to prove there had been none, but for the defendant to prove the acquiescence. See Alade v. Aborishade (1960) 5 F.S.C. 167, 171; Odunsi v. Kuforiji (1948) 19 N.L.R. 7.
3.5 Limit of the Doctrine
Acquiescence is an important factor upon which the doctrine of laches is founded. Therefore, the doctrine will not be applied where there is no acquiescence, express or implied on the part of the true owner in the defendant's assumption of the right in dispute. See Tobias Epelle v. Ojo (1926) 7 N.L.R. 96, 97. In Akeju v. Suenu (1925) 6 N.L.R. 87, the plaintiff sought to set aside a conveyance of family property which was made without his knowledge or consent. The defence of lying by was rejected because the plaintiff took all reasonable and proper steps to protect his interests as soon as he learnt that the property was being dealt with without his authority.
Similarly, the doctrine will not be applied where the defendant had sufficient warning as to the sta- tus of the property and the right of the plaintiff therein; in that case the defendant was not led by the conduct of the plaintiff to alter his position with respect to the property. See Olowu v. Desalu (1955) 14 W.A.C.A. 662, 664; Alari v. Oyekunle (1961) W.N.L.R. 281; Adeniji v. Ogunbiyi (1965) N.M.L.R 395. In Ukwa & Ors. v. Awka Local Council (1966) N.M.L.R. 47, the defence was rejected as there was no evidence that the person claiming the defence had changed his position or taken any irrevocable step which would make it inequitable to permit the real owner to assert his title or dominion over the land in dispute.
Acquiescence may also be inferred from long possession of the property in dispute. However, in order to ground a defence of long possession showing acquiescence on the part of the true owner of the property, it is necessary to show that such possession as is relied upon was adverse and of such character that the true owner would be deemed to have actual or constructive notice of the defendant's adverse but long and uninterrupted possession. See Maji v. Shaft (1965) N.M.L.R 33, 36-7.
An uninterrupted possession for a period of five years may not be enough to ground the equitable defence of long possession showing acquiescence unless the defendant had within that period, al- tered his position that it would be inequitable to permit the true-owner to assert his title. See So- lagbade v. Ayankoya (1962) W.N.L.R. 85, 87. But an undisturbed possession for upwards of se- venteen years is sufficient to ground acquiescence - See Lateju v. Lanihun (1958) W.N.L.R. 106 at 108. 'The period of time which will justify the court in inferring acquiescence varies greatly ac- cording to the circumstances, including the nature of the improvements effected on the land. Where there are crops naturally a longer period would ordinarily be required than in the case of a substantial building'. See Fiscian v. Nelson (1947) 12 W.A.C.A. 21 at 22.
Pledge
Under customary law land subject to pledge is perpetually redeemable; therefore, a pledgee cannot rely on laches for purposes of claiming ownership of the land. See Kofi v. Kofi (1933) 1 W.A.C.A.
- In Leragun v. Funlayo (1955-56) W.N.L.R. 167, Irwin J., held that lapse of time for more than 30 years is not a bar to the recovery of land which has been pledged.
Laches and Matrimonial Causes
In a matrimonial cause for divorce, the court is not bound to pronounce a decree of divorce and may dismiss the petition if it finds that the petitioner has been guilty of unreasonable delay in presenting or prosecuting the petition. As Bairamian J.S.C. explained in Enekebe v. Enekebe (1964) 1 All NLR 102 at 105, this is intended to make a spouse diligent in presenting his or her petition, for it is in the public interest that he or she should be diligent; and that a husband who is late in petitioning may well give ground for the view that he has acquiesced in the misconduct of his wife or is indifferent to the loss of her company. See sections 26, 28(c) & 37(b) Matrimonial Causes Act, Vol. 8, Cap. M7 Laws of the Federation of Nigeria, 2004.
This shows the extent to which the court can make use of the doctrine of laches with a view to discouraging stale demands which may sometimes be difficult to establish or rebut owing to pos- sible loss or destruction of evidence.
Statutes of Limitation
The Limitation Decree does not derogate from the importance of the doctrine oflaches. Indeed, the Decree gives statutory recognition to the jurisdiction of the court to refuse relief on the ground of laches. Section 2 of Decree No. 88 of 1966 provides 'Nothing in this Decree shall af- fect any equitable jurisdiction to refuse relief on the ground of acquiescence or otherwise.'
In Muomah v. Spring Bank Plc (2009) 3 NWlR (Pt. 1129) p. 553, on nature of statute of limita- tion and rationale therefor, the Court of Appeal held that:
“The law on limitation of actions is the pivot upon which the wheel of litigation rotates and the ruthless watchmsn that guards the gates to the sanctuary of justice. The Statute of Limitation is therefore an act of peace based on the principle that long dormant claims have more of cruelty than justice in them, as the defendant might have lost the evidence to disprove a statement of claim and that persons with good causes of action should pursue them with reasonable diligence. The reasoning of the statute of Limitation is that greater injustice is likely to be done by allowing stale claims than by refusing them a hearing on the merit.”
On determination of period of limitation, see the case of Odum v. Uganden & Ors. (2009) 9 NWLR (Pt. 1146) 281 where it was held as follows:
“The period of limitation in any statute of limitation is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave rise to the cause of action, and by comparing that date with the date on which the writ of summons was filed. In the instant case, to determine if the action is statute barred, it is the date the respondents, now possessed of the land, got the land that has to be com- pared with the date of filing of the case, for the purpose of determining whether or not the said action is statute barred.”
In Kumaila v. sheriff & Ors. (2009) 9 NWLR (Pt. 1146) p. 420, it was held that “time begins to run when there is an existence a person who can sue and another who can be sued, and all facts have happened shech are materials to be proved to entitle the plaintiff to succeed. In determining whether an action is statute barred, it is important to first determine when time began to run.”
On what laches denotes and the distinction between laches and statute of limitation, see Chukwu
- Amadi (2009) 3 NWLR (Pt. 1127) p. 56, where the Court held as follows:
- Where a statute prescribes a specific period for the filing of an action in a Court of law, any action filed after the expiration of the period is null and void. Such period of limita- tion starts to run from the very date the cause of action arose.
- What determines whether or not a cause of action is statute barred is the writ of summons or statement of claim alluding to the date the cause of action accrued and the date of filing the suit.
- Laches denotes an equitable principle by which a court denies relief to a claimant who has unreasonably delayed or been negligent in asserting the claim where the granting of such relief would be unfair or unjust.
- The difference between laches and statute of limitation is very thin. The doctrine of laches like the statutes of limitation in their conclusive effects are employed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.
See also Unity bank Plc v. Nwadike (2009) 4 NWLR (Pt. 1131) p. 352.
3.6 He who comes into Equity must come with Clean Hands
This flexible equitable defence speaks for itself. The early chancery jurisdiction was largely influ- enced by good faith, clear conscience and honest dealings; hence the Chancery Court of that period was designated as a court of conscience. Reliefs sought from and granted by the Chencery were pre- dicated on and dictated by conscience; correspondingly, a suitor in equity would only be entitled to such reliefs if his conduct in the transaction had not been contrary to equity and good conscience. In spite of the transformation of early flexible equity jurisdiction to that of a rigid system, the 'clean hands doctrine' remains a significant manifestation of the ethical attitude of equity; while equity con- tinues to enforce good faith in defendants, it no less stringently demands the same good faith from plaintiffs. See Chafee C., Some Problems of Equity (Cooley Lectures, Univesity of Michigan Law School 1950) p. 1.
3.7 Operation of the Doctrine
The doctrine operates in a variety of legal relationships: for example, enforcement of contracts, trusts, interests in land and even actions founded on torts and matrimonial causes. Indeed, 'the extent of the application of the maxim appears to be limitless - this is only due to its basic character and its value to all phases of equity. Throughout the equitable fields of fraud, illegality, and acts involving unconscionable conduct, the situations are few which cannot be definitely governed by the "clean hands" doctrine.' See 9 Temple L.Q. 220 at 226 (1935).
In the realm of contract, neither at law nor in equity will the court lend its aid in carrying out and completing an illegal contract. The court will not entertain a claim for damages or compensation for the breach of an illegal contract and, of course, no court of equity will decree specific perfor- mance of or grant any equitable relief in such contract. As Jessel M.R. explained in Sykes v. Bea- don (1879) 11 Ch.D. 170 at 196, 'if two persons go partner as smugglers, can one maintain a bill against the other to have an account of the smuggling transaction? I should say certainly not ... It is no part of the duty of a Court of Justice to aid either in carrying out an illegal contract, or in divid- ing the proceeds arising from an illegal contract, between the parties to that illegal contract.'
Equitable relief will be refused if the party seeking the relief is guilty of inequitable conduct with respect to the transaction upon which the relief sought is based, even though the transaction is in itself valid at law. Specific performance of a contract will be denied at the suit of a party who is guilty of sharp practice in the formation of the contract. In Cadman v. Horner (1810) 18 Ves. 10 at 11; 34 E.R. 221, there was a contract for the sale of land between the vendor and the purchaser. The vendor had relied on the purchaser for the proper valuation of the property. The purchaser, who was aware of the trust reposed in him, grossly undervalued the property. In an action for spe- cific performance of the contract it was held that the purchaser had abused his fiduciary position by misrepresenting the value of the property to the vendor and was therefore not entitled to specif- ic performance. The fact that the agreed price was adequate was in itself not sufficient; the pur- chaser's abuse of his fiduciary position was an inequitable conduct which 'disqualifies him from calling for the aid of a Court of Equity, where he must come, as it is said, with clean hands.'
Similarly, in Viatonu v. Odutayo and Kuyoro (1950) 19 N.L.R. 119, the purchaser of a mortgaged property was denied the right to recover possession of the property on the ground that he had been a party to the fraudulent auction sale at which the property was sold at an undervalue.
A beneficiary under a trust and who concurs in a breach of the trust cannot come afterwards to complain of the breach; his right of action against the trustee for the breach is only in equity, and since equity will only grant relief to those who come to it with clean hands, the beneficiary would be denied relief because of his past inequitable conduct in concurring to the breach. See Re Deane (1889) 42 Ch.D. 9, 19. In Pratt v. Haffner (1959) 4 F.S.C. 82, the trustee of the estate of late Dr. Henry Carr made a voidable lease of the trust property; plaintiff, one of the beneficiaries sought to set aside the lease after he had derived considerable benefit from the lease of which grant he was fully aware. The relief was denied; having derived benefit from the lease and with full knowledge of the transaction, the beneficiary was deemed to have adopted it.
Where a husband purchases property in the name of his wife, there is presumption of advancement in favour of the wife. But this presumption can be displaced by a presumption of a resulting trust in favour of the husband if there is evidence that the husband intends that the property is to be held by his wife on trust for himself. See generally, Snell's Principles of Equity (17th Ed.) p. 175. However, where such evidence is based on fraud or inequitable conduct on the part of the husband, equity will not presume a resulting trust in his favour.
In Gascoigne v. Gascoigne (1918) 1 K.B. 223 at 226, a husband took a lease of land in his wife's name and built a house upon it with his own money. He used his wife's name in the transaction with her knowledge and connivance because he was in debt and was desirous of protecting the property from his creditors. In an action by the husband against his wife for a declaration that she held the property as trustee for him, it was held 'that he could not be allowed to set up his own fraudulent de- sign to rebut the presumption that the conveyance was intended as a gift to the wife, and that she was entitled to retain the property for her own use, notwithstanding that she was a party to the fraud. But for the clean hands doctrine, a presumption of a resulting trust in favour of the husband would have enabled him to benefit from his fraud. See also, Re Emery's Investment Trusts. (1959) Ch. 410; Kojo Adjepon v. Kwaku Fokuo (1945) 11 W.A.C.A. 67.
The flexible character of the doctrine can be seen in the variety of inequitable conduct that can give rise to its invocation, thus giving credence to the view that the 'doctrine is rooted in the historical concept of equity as a vehicle for affirmatively enforcing the requirements of conscience and good faith.' Per Justice Murphy in Precesion Instrument Manufacturing Co. v. Automotive Maintenance Machi- nery Co. 324 U.S. 806 at 814 (1945).
In Menikiti v. Agina (1965) N.M.L.R. 127 at 129, plaintiff and defendant were joint beneficiaries of a property under their mother's will. Both agreed to partition the property before the will was proved. The defendant, who had sold his own portion, contended that the sale was valid since the property had been partitioned. Plaintiff, on the other hand, claimed that there had been no partition and that it was a joint-tenancy under which the defendant had no power to sell any part of the prop- erty. He therefore, sought to set aside the sale made by the defendant. It was found by the Court that the property had, in fact, been partitioned illegally because the will had not been proved in accor- dance with the law; that the plaintiff had agreed to the partition when she thought she could pur- chase the defendant's share, and that she now brought this action after she had failed to purchase the defendant's share because of the disagreement on the purchase price.
Kaine J., refused to make the order and stated 'I have to say that the plaintiff and the defendant hav- ing constituted themselves into executors de son tort and after the illegal distribution of the property of the testatrix have now landed themselves in Court seeking for a legal remedy. I am of the opinion that to grant them any remedy would tantamount to a condonation. To set aside a sale and declare a Conveyance null and void is an equitable remedy which cannot be granted if appropriate unless the party seeking the remedy comes with a clean hand.'
The doctrine is equally relevant in matrimonial causes. In Craig v. Craig (1942) 16 N.L.R. 103, W sought a dissolution of her marriage with H on the ground of H's adultery and cruelty. W had been guilty of adultery herself but did not confess this in her petition and the Court found that the neg- lect to do so was a deliberate suppression of the truth. H, in a counter petition based on W's adul- tery, admitted he had been guilty of adultery and prayed the Court to exercise its discretion in his favour. It was held in the circumstances, the petitioner's action must be dismissed because of his inequitable conduct and that the Court should exercise its discretion in favour of H and H's coun- ter-petition was granted.
In Kellogg v. Kellogg 171 Mich. 518 at 520 (1912); 137 N.W. 249 (1912), where W sued for di- vorce on the ground of extreme cruelty and H crosspetitioned on the ground of extreme cruelty and adultery, Judge Stone, in dismissing both petitions, said: 'Divorce is a remedy for the inno- cent as against the guilty, and should not be granted where both parties are at fault. This is no more than the application of the equitable rule that one who invokes the aid of a court must come into it with a clear conscience and clean hands'. Though an extreme use of the doctrine, which if pushed to its logical conclusion may tend to perpetuate a relationship which is obviously in- imical to the interest of both parties and that of the public, it, nevertheless demonstrates the very flexible character of the clean hands doctrine.
Even in the realm of customary law the efficacy of the doctrine has not been found wanting. In his dissenting judgment in Eshugbayi v. Dawuda (1909) 1 N.L.R. 7 at 62, Pennington J., observed that a person seeking to enforce native law and custom in respect of one transaction must him- self have carried out native law and custom relating to that transaction; otherwise, his claim may be denied on the basis of 'clean hands doctrine.'
3.8 The Scope of 'Clean Hands'
The rule is that the inequitable conduct that will amount to unclean hands must be related to the transaction involved in the action before the Court; this is similar to the common law principle that the court will not entertain an action that is premised on illegality, though in equity, inequita- ble conduct which will amount to unclean hands need not be illegal in the strict sense, as required at law, it is sufficient if the conduct is unconscionable and morally reprehensible. The inequitable conduct need not have been to the other party to the action. For example, where a husband con- veyed property to his wife so as to protect the property from his creditors, an action by the husband to claim the property back from the wife may be denied on the ground of his inequitable conduct to his creditors. See Gascoigne v. Gascoigne (supra).
The position is the same where a partner in crime brought an action seeking the aid of the Court to compel his co-partner to account for the proceeds of their criminal activities. See Highwayman's Case (1893) 9 L.Q. Rev. 197. The basis of the doctrine is to prevent a party from employing the machinery of the court to enforce the advantage of his inequitable conduct. However, that a per- son must come into a Court of Equity with clean hands does not mean that a person seeking relief in court must have a blameless or transparent record; it does not mean general depravity (see Der- ing v. Winchelsea (1787) 1 Cox Eq. 318 at 319); for equity does not demand that its suitors shall have had blameless lives. Per Justice Brandeis in Loughran v. Loughran 292 U.S. 216 at 229 (1934). A person does not become an outlaw and lose all rights by doing an illegal act. Per Justice Holmes in National Bank & Loan Co. v. Petrie, 189 U.S. 423 at 425 (1903). He is denied relief only if his reproachable or inequitable conduct has an immediate and necessary relation to the re- lief sought from the Court. See Dering v. Winchelsea (supra).
SELF ASSESSMENT EXERCISE
What do you understand by ‘the scope of clean hands’?
4.0 CONCLUSION
The exercise of this equitable jurisdiction, like all others, is discretionary and, in the usual man- ner, the discretion may not be exercised arbitrarily. No doubt, there is much similarity between laches and equitable estoppel; hence the tendency on the part of the courts to confuse one with the other. The basis of this confusion seems to be the question of acquiescence which is common to both doctrines. Equitable relief will be refused if the party seeking the relief is guilty of inequi- table conduct with respect to the transaction upon which the relief sought is based, even though the transaction is in itself valid at law. That a person must come into a Court of Equity with clean hands does not mean that a person seeking relief in court must have a blameless or transparent record. He is denied relief only if his reproachable or inequitable conduct has an immediate and necessary relation to the relief sought from the Court.
5.0 SUMMARY
In this unit, we have considered the equitable defence of laches and aquiscence; and the maxim ‘He who comes to equity must come with clean hands’. You should now be able to: explain the equitable defence of laches and acquiescence; distinguish between proprietary estoppel and laches; explain laches and customary law; describe the maxim ‘He who comes to equity must come with clean hands’ and its operation; and define the scope of clean hands.
6.0 TUTOR-MARKED ASSIGNMENT
Explain the maxim ‘He who comes to equity must come with clean hands’.
7.0 REFERENCES / FURTHER READING
Cap. M7, Laws of the Federation of Nigeria, 2004.
Hackney J., (1987) Understanding Equity and Trusts; London: Fontana press
Jegede M. I. (2007rep.) Principles of Equity; Ibadan: Unique Design/Prints