Akinolu Baruwa V. Ogunshola & Ors (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim for declaration of title to land—Onus not discharged in j frudgment Trial Court and claim dismissed against all Defendants.

Held : Plaintiff not having satisfied trial Judge what was the area Court. claimed the original judgment in respect of first two defendants was correct,

but. as second two defendants did not dispute the claim a non-suit should have been entered in their cases and not a dismissal of the claim against them. Judgment accordingly.

There is no need to set out the facts.

Sir William Geary, Bart (J. C. Zizer with him) for Appellant. Ayo Williams for first and second Respondents.

Third and fourth Respondents in person not resisting the appeal.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND WEBB, C.J., SIERRA LEONE.

In this case the plaintiff claimed a declaration of title against four defendants. The first two defendants resisted the claim, the last two did not. The claim against all was dismissed in the Supreme Court and from the judgment of dismissal the plaintiff now appeals. We will deal with the cases of the first two defendants and the last two separately.

First as to the case against the first and second defendants.

The claim reads ” The plaintiff’s claim is for a declaration of title to all that piece or parcel of land situate and being at Odogun in Isheri District.” It is obviously of the vaguest nature.

Now it is the first duty of a plaintiff who comes to Court to claim a declaration of title to show the Court clearly the area of land to which his claim relates.

In this case the plaintiff completely failed to discharge this first duty. A plan was ordered by the Court, but he never had one made for the case. Instead he came into Court and his

counsel stated ” the plan in suit 117/1936 is in Court and it has not been denied that that plan is sufficient for this suit.” But even that plan was never put in and was not before either the lower Court or this Court. Instead a plan made for the purpose of another suit in No. 265/1933 was tendered and admitted as Exhibit A.

Immediately this was tendered counsel for defendants said ” the plan does not refer to the land claimed but to Ito Abo Swamp in Ikorodu District.” As a plan to assist the Court in the present case this plan is entirely useless. It is true that the plaintiffs first witness, Salako, who held a Power of Attorney for plaintiff, stated ” the plan (Exhibit A) shows the exact area we are claiming in this suit. We only claim herein the land on one side of the river.” But he did not indicate how the area now claimed is to be identified on the plan, nor can that question be determined. The area edged red on that plan is so edged to indicate the area about which the dispute was in the 1933 suit, viz : —the area known as Ito Abo Swamp, obviously only a small portion of Odogun land. The greater part of Odogun village itself is shown as outside that area. That the plaintiff’s attorney himself didn’t really know what he was claiming is shown by his own evidence in which he contradicts himself in consecutive sentences :—” The Forest Reserve is not part of the land claimed. It is part of Odogun. We claim the whole of Odogun.”

For these reasons we are of opinion that the plaintiff entirely failed to discharge his first duty, namely to show what he was claiming, and the learned trial Judge was right in holding, when plaintiff closed his case, that no prima facie case had been made out which the defendants should be called upon to answer.

Further in view of the way in which plaintiff presented his case, we think that the learned trial Judge exercised a proper discretion in dismissing the claim rather than in entering a non-suit.

The appeal against the first two defendants-respondents is therefore dismissed with costs assessed at twenty guineas.

As regards the third and fourth defendants, since they have never disputed the plaintiff’s claim, we think that the proper Order would have been one of non-suit rather than dismissal. In their case therefore the appeal is allowed and it is ordered that the judgment dismissing the claim be set aside and a judgmen t of non-suit be entered. The plaintiff-appellant does not ask for any costs against the third and fourth defendants and is .warden none.