David Fabunmi V. Abigail Ade Agbe (1985)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, J.S.C. 

The appellant was the defendant to a suit instituted by the respondent as plaintiff in the Ikeja Division of the High Court of Lagos State. In the suit, the respondent claimed:

“(1) declaration of title in fee simple to all that piece or parcel of land situate, lying and being at Palm Avenue, Mushin, Lagos State and more particularly described on Plan No. LAT.648/L/77 attached to a Deed of Conveyance dated 19th August, 1977 registered as No.8 at page 8 in Volume 1648 of the Registry of Deeds at the Lands Registry, Lagos.

(2) N200.00 general damages for trespass to the said land,

(3) perpetual injunction restraining the defendant his servant and or agents from committing further acts of trespass to the said land.”

Pleadings were filed and exchanged on the order of the Court and the appellant as defendant filed along with his statement of defence in paragraphs 24, 25 and 26 a counter claim as follows:

“25. The defendant counterclaims for a sum of N1,500.00 for damages done to the gate of his fence and for the foundation on the piece of land.

26. The said damages were caused by the plaintiff in or around November, 1977 despite repeated warnings both from the defendant and his agents.”

The case came up for hearing before Desalu. J. and at the conclusion of the hearing, he dismissed both the claim and counterclaim in a well considered judgment. In respect of the plaintiff’s claim for title, the learned trial judge said:

“In fact, Mr. Alaka testified that Palm Avenue, was bush when he was preparing the layout plan and again I believe him on this point.

I ask myself from the evidence before me, from what point on Exhibit ‘T’ towards Palm Avenue: does Oteniya family land extend beyond the area marked red on the said Exhibit, is it from the pillar marked 722 or from pillar AC2570 or is it from Peg 4

No evidence was adduced by the plaintiff or any of her witnesses to satisfactorily establish this fact.

I am therefore not satisfied from the totality of the evidence in this case that the land the subject matter of this action, falls within the land of the Oteniya family I am therefore not satisfied that this is a proper case in which I should make a declaration of title in favour of the plaintiff, her radical title not having been well founded or proven.”

In respect of the claim for trespass, the learned trial judge said:

“The plaintiff was the only person who gave any evidence of any acts of possession over the land in dispute by her. All plaintiff witness 3 Isiba did was to show the land to the plaintiff, sell and convey same by virtue of Exhibit “A”.