M.O. Odesanya V. D.A. Ewedemi (1962)

LawGlobal-Hub Lead Judgment Report

TAYLOR, F.J

The appellant who was plaintiff in the high Court of the Abeokuta Division took out a writ against the respondent/defendant claiming:-

(i) Declaration of title to land edged red on plaintiff’s plan

(ii) £250 as general and special damages for trespass alleged to have been committed by the defendant, and

(iii) An injunction to restrain further acts of trespass.”

The learned trial Judge, after hearing the evidence adduced on both sides dismissed the claim, holding inter alia that:-

“on the evidence adduced by plaintiff, even if the action had been properly brought by him, I am of the opinion that he is not entitled to succeed in his claim.”

There were two matters raised by learned Counsel in his argument be-fore us which were that:–

“1. The learned trial Judge misdirected himself when he held “that the only evidence that plaintiff’s father had acted as his agent in the purchase of the land appears to be the plaintiff’s unsupported assertion” when in fact there was supporting evidence, and

2. The learned trial Judge misdirected himself when he held “that the area verged yellow is of the same dimensions as that which lies between the eastern side of the area verged red and Alapo Street.

The second point was developed by Counsel together with the general ground of appeal. I shall for the purposes of this judgment concede the first point; the major stumbling block in the appellant’s way of success lies, in my view, in his inability to prove that the area edged yellow falls within that purchased by him. Counsel contended that the evidence adduced by the appellant was compatible with the dimensions of the land beginning by Ogunbi’s house and not Alapo Street. He did however, concede, as indeed he was bound to do, that if the area purchased by his client was to be measured from Alapo Street, then it would not cover the area in dispute. In a claim for a declaration of title to land the onus is on the plaintiff to prove title to a defined area to which a declaration can be attached. Both in the writ of summons and statement of claim the description of the area in dispute ties it to Alapo Street.

The former reads thus:–

“Declaration of title to all that piece or parcel of land situate at Alapo Street, Old Itaosu Market Porogun, Ijebu Ode and more particularly described and delineated on a plan to be filed later in the action.”

In the latter, paragraph 2 reads thus:-