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Words, Phrases and Maxims/A/[A0385] ACQUIESCENCE

[A0385]

ACQUIESCENCE

Acquiescence which will deprive a man of his legal rights must amount to fraud. A man is not to be
deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set
up those rights. 1941 OWN 1021 = AIR 1941 Oudh 611 .

There can be no acquiescence or waiver in a case where both the parties are unaware of their rights
in the disputed property, both are labouring made some mistake about their respective rights in regard to
such land. Dr. Abdul Khair v Miss Sheila Myrtala James AIR 1957 Patna 308 AIR 1957 Patna 310
[Evidence Act 1872, s 115]

The word 'acquiescence' is used to denote conduct, which is evidence of an intention of a party to
abandon an equitable right and also to denote conduct from which another party will be justified in
inferring such an intention. Krishna Dev v Ram Mari AIR 1964 HP 34 AIR 1964 HP 37

The action or condition of acquiescing ; the assent to an infringement or rights, either express or implied
from conduct, by which the rights to equitable or discretionary relief may be lost [s 39, Indian Contract
Act]; a consent inferred from silence ; a tacit encouragement.

DISTINGUISHED FROM 'CACHES'. 'While the words 'laches' and 'acquiescence' are often used as
similar in meaning, the distinction in their import is both great and important. Laches import a merely
passive, while acquiescence implies active, assent.'

Acquiescence is to be distinguished form avowed consent, on the one hand, and from open discontent or
opposition, on the other. It amounts to a consent which is impliedly given by one or both parties to a
proposition, a clause, a condition, or to any act whatever. (Bouv)

LL

Abstaining from interference while one's rights are being violated: Ramsden v Dyson (1866) LR 1 HL
129 . Refraining from seeking relief, once if is known that rights exist, for such a period that
abandonment or release of the rights has occurred: Mehmet v Benson (1965) 113 CLR 295 ; [1965] ALR
903 . Delay by plaintiff where to give relief would involve prejudice to the defendant or a third party:
Mehmet v Benson (1965) 113 CLR 295 ; [1965] ALR 903 . Sometimes, mere delay: Boyns v Lackey
(1958) 58 SR (NSW) 395 ; 75 WN (NSW) 451.

ALD

Used either to denote conduct which is evidence of an intention by a party, conducting himself, to
abondon an equitable right; or to denote conduct from which another party would be justified in inferring
such an intention. [ Krishan Dev v Ram Piara AIR 1964 HP 34 (37)]. A consent is sometimes called
'sleeping on one's rights'. A person, having a full acknowledge of his rights, neglecting to dispute the
rights of another, or to enforce his rights, will be debarred from enforcing his rights and from questioning
other's rights. The law will think him to have acquiesced in the act or rights of the other. The effect of
such acquiescence is what is known as 'estoppel by conduct'.

JD

Mere inactivity on the part of a defendant is not to be construed as acquiescence in delay by the
plaintiff. 'Sleeping dogs, in the form of sleeping plaintiffs, need not be aroused by defendant from their
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slumbers' (per Roskill LJ in Compagnie Francaise de Television v Thorn Consumer Electronics Ltd
[1978] RPC 735 at 739 ). The reasons underlying this attitude by the courts were discussed by Diplock
LJ in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 1 All ER 543 at 554 , [1968] 2 QB 229 at 257 . His
conclusion was that it was inherent in an adversary system of litigation, which relied exclusively on the
parties to an action to take whatever procedural steps appeared to them to be expedient to advance their
own case, that a defendant could, with propriety, refrain from spurring the plaintiff to proceed to trial and
then, if the facts otherwise justified such a course, apply to have the action struck out for want of
prosecution. See Bremer Vulkan v South India Shipping [1979] 3 All ER 198 per Donaldson J

Author

The term 'acquiescence' is used where a person refrains from seeking redress when there is brought
to his notice a violation of his right of which he did not know at the time, and in that sense acquiescence
is an element in laches. The term is however properly used where a person having a right, and seeing
another person about to commit or in the course of committing an act infringing upon that right, stands by
in such a manner as really to induce the person committing the act, and who might otherwise have
abstained from it, to believe that he assents to its being committed; a person so standing by cannot
afterwards be heard to complain of the act (see De Bussche v Alt (1878) 8 Ch D 286 (1878) 8 Ch D 314
). In that sense the doctrine of acquiescence may be defined as acquiescence under such circumstances
that assent may be reasonably inferred from it, and is no more than an instance of the law of estoppel by
words or conduct, the principle of estoppel by representation applying both at law and in equity, although
its application to acquiescence is equitable.

Ng Yee Fong & Anor v E W Talalla [1986] 1 MLJ 25 at 27 Per Mohamed Azmi SCJ

By definition, 'acquiescence' is used in two senses. Strictly, it implies that a person abstains from
interfering while a violation of his rights is in progress or that he refrains from seeking redress when a
violation of his rights, of which he did not know at the time, is brought to his notice.

Tan Ah Chim & Sons Sdn Bhd v Ooi Bee Tat & Anor [1993] 3 MLJ 633 at 654 Per Edgar Joseph Jr SCJ

Learned counsel further said that by virtue of the doctrine of acquiescence, the respondent was
precluded from complaining. He referred to Ng Yee Fong & Anor v EW Talalla [1986] 1 MLJ 25 where
Mohamed Azmi SCJ said at 27:

... The term 'acquiescence' is used where a person refrains from seeking redress when there is brought to his
notice a violation of his right of which he did not know at the time, and in that sense acquiescence is an element of
laches. The term is however properly used where a person having a right, and seeing another person about to
commit or in the course of committing an act infringing upon that right, stands by in such a manner as really to
induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents
to it being committed; a person so standing by cannot afterwards be heard to complain of the act (see De Bussche
v Alt (1878) 8 Ch D 286 at 314 ) ...

Paragraph 1474 of 16 Halsbury's Laws of England (4rd Ed), on the subject of 'Elements in the Estoppel'
states:

When A stands by while his right is being infringed by B the following circumstances must as a general rule be
present in order that the estoppel may be raised against A:

(1) B must be mistaken as to his own legal rights; if he is aware that he is infringing the rights of
another, he takes the risk of those rights being asserted;
(2) B must expend money, or do some act, on the faith of his mistaken belief, otherwise, he does not
suffer by A's subsequent assertion of his rights;
(3) Acquiescence is founded on conduct with a knowledge of one's legal rights, and hence A must
know of his own rights;
(4) A must know of B's mistaken belief; with that knowledge it is inequitable for him to keep silence
and allow B to proceed on his mistake;
(5) A must encourage B in his expenditure of money or other act, either directly or by abstaining from
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asserting his legal rights.

Ho Yoke Kwei & Anor v Ong Eng Hin [1997] 4 MLJ 292 at 300 Per Augustine Paul JC

The term acquiescence, like the term laches, is confusingly used in different senses. Three should
be referred to: (a) it can refer to the type of estoppel of which Ramsden v Dyson (1866) LR 1 HL 129
(refd) is an example. It is this meaning which Lord Cottenham LC in Duke of Leeds v Earl of Amherst 41
ER 886 (refd) said was the primary meaning of the term. Poole J in Glasson v Fuller [1922] SABL 148
(refd) thought likewise; (b) it can refer to an element in one of the two kinds of laches, viz the action of a
plaintiff over a long period of time, with full knowledge of his rights, refraining from exercising his rights in
circumstances where it can properly be inferred that he has abandoned them. This is waiver, affirmation,
release. This is the sense in which Hanbury uses the term when he says: 'The chief element in laches is
acquiescence'; (c) finally, as is evident from the question of Lord Wensleydale's speech in Archbold v
Scully [1861] 9 HCL 360; 11 ER 769 (refd) the term 'acquiescence' can be used as referable only to the
second type of laches considered in this chapter, ie the type of laches which involves prejudice to the
defendant or to third parties.

Sir Samuel Griffith alluded to these different senses in Cashman v 7 North Golden Gate Mining Co
[1897] 7 QLJ 152 (refd) where he said (at 153):

The term acquiescence is not a term of art. It was used in courts of equity as a term to characterize a defence
which may be set up by a person against whom another makes a claim for equitable relief. It is a well-known
doctrine of equity that when a person claiming equitable relief has lain for a long time and so conducted himself
that it would be inequitable to permit him to complain of the defendant's actions, the court will refuse to grant the
relief. The term also bears another meaning. It may be fairly applied to a man who, seeing an act about to be done
to his prejudice, stands by and does not object to it. He may be very properly said to be acquiescing in that act
being done. But the difference in point of law in the legal consequences of the two kinds of acquiescence is quite
clear. A man who stands by and sees an act about to be done which will be injurious to himself, and makes no
objection, cannot complain of that act as a wrong at all. He never has any right of action, because he stands by
and allows the act to be done. Acquiescence in the other sense is a defence to an action for specific relief, on the
ground that the plaintiff cannot be reinstated in his original position without doing injustice to the defendant, but it
is not an answer to a cause of action already accrued.

In Glasson v Fuller [1922] SABL 148 (refd) Poole J also alluded to the different meanings of the term
when he said:

'Acquiescence' is used in two senses. If one stands by while he sees the violation of his right in progress, and
takes no steps to intervene, he is said to acquiesce in the violation, and he may be thereby debarred from his
remedy in respect of it. This is acquiescence in the true sense, but its effect has nothing to do with the lapse of
time, and it has no relation to laches. In another sense, acquiescence is used to denote that some equitable right
of A has been violated, as where he has been induced to make a gift by undue influence, or where there is a
cestui que trust, and his trustee has purchased the trust property, and that after the influence has ceased or the
violation has been brought to his knowledge he assents to the continuance of the state of affairs resulting from the
violation, to the retention of the gift by the donee, or of the property by the trustee. The lapse of time without
proceedings being taken by A is evidence of such assent, and upon acquiescence of this latter kind the doctrine of
laches is based. Acquiescence in the strict sense implies either that the party acquiescing has abandoned his
right, or that he is estopped from asserting it. Acquiescence in this sense is no more than an instance of estoppel
by words or conduct. Laches, acquiescence in the second sense, is no defence if there is a Statute of Limitation
in operation, unless it exceeds the period allowed by the Statute.

It is true that even where a right of way has been acquired by express grant it may be abandoned
(See Swan v Sinclair [1924] 1 Ch 254 (refd) . However, mere non-user is neither a release nor an
abandonment; for abandonment of an easement can only be treated as taking place where the person
entitled to it has demonstrated a fixed intention never at any time thereafter to assert the right himself or
to attempt to transmit it to anyone else. (See Tehidy Minerals Ltd v Norman & Ors [1971] 2 QB 528 (refd)
(at 553)
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Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202 at 238 Per Edgar
Joseph Jr J

According to 16 Halsbury's Laws of England para 1473, the term acquiescence applies when a person
(A) having a right, and seeing another person (B) about to commit, or in the course of committing, an act
infringing that right stands by in such a manner as to induce B, who might otherwise have abstained from
doing the act, to believe that A assents to it being committed. Generally, five circumstances must be
present in order that the estoppel may be raised against A:

(1) B must be mistaken as to his own legal rights;

(2) B must expend money or do some act on the faith of his mistaken belief;
(3) A must know of his own rights;
(4) A must know B's mistaken belief;
(5) A must encourage B in his expenditure of money or other act, either directly or by
abstaining from asserting his legal right: see para 1474 of Halsbury's.

Nasaka Industries (S) Pte Ltd v Aspac Aircargo Services Ltd [1999] 4 SLR 626 at 648 Per Judith
Prakash J