Amusa Alli Owe V J. O. Oshinbajo (1965)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

This is an appeal from the judgment of the High Court of Western Nigeria dismissing the case of the plaintiffs with costs.

At the time of this appeal, both the original plaintiff and the original defendant had died and were substituted by their respective children or representatives; the appellants representing the original plaintiff and the respondents the original defendant. The appellants will hereafter be referred to as the plaintiff and the respondents as the defendant

The plaintiff’s writ is endorsed as follows:-

“The plaintiff’s claim against the defendant is for the sum of £100 being general damages for the trespass committed by the defendant on the plaintiff’s land situate lying and being at Odi-Olowo via Ikorodu Road and which is more particularly described and delineated in the plan to be filed in this action. The said defendant unlawfully entered the said land in possession of the plaintiff and destroyed the signboard placed thereon and started to dig same with a view to building thereon in spite of repeated warnings by the plaintiff.

The plaintiff also claims a perpetual injunction restraining the said defendant or his agents and servants from committing further act of trespass on the said land or any part thereof.”

At the trial in 1959, the plaintiff gave evidence to the effect that the defendant entered upon a portion of lands of which he had been in exclusive and undisturbed possession since his purchase of same in 1944. He claimed to have bought from the representative of one Salami Balogun (deceased) who had bought from one Green to whom the admitted original owner, one Mr Blaize, had sold. There was also evidence that a portion of the land was acquired from the plaintiff by the Federal Government some time in 1946. A witness called by the plaintiff and described as an Executive Officer in the Federal Lands Department, Lagos, produced as Exhibit F a plan of the entire lands acquired by Government in the area; he testified that the land claimed by the plaintiff, as shown edged green in his plan exhibit C, is the unacquired portion of Lot 7N (i.e., land claimed by the plaintiff, as shown in the plan exhibit C, is part of the land shown as unacquired in Exhibit F and is also a portion of the land covered by the plaintiffs conveyance, Exhibit A.

The defendant did not give evidence himself and the only witness called by the defence was the said Mr Blaize who testified that he was the original owner of lands (of which the land in dispute is a portion) in that area and that indeed he sold the land in dispute not to Green as claimed by the plaintiff but to one Dudley Coker who is not a party to the proceedings.

The learned trial judge did not accept the evidence of Blaize but found that the plaintiff (like his predecessors in title) was in possession of the land in dispute at the time the defendant entered thereon. He did not however enter judgment for the plaintiff as he should have done but proceeded to ascertain whether he was satisfied “on the balance of probabilities that the land shown in Exhibit C is the residue of the land which the original plaintiff purchased and of which he entered into possession in 1943”. in this connection he observed as follows in the course of his judgment:-

“The opinion of the officer from the Lands Department must be discounted as it is based on the misreading of the number of a pillar shown on Exhibit F. Pillar 5918 appears on Exhibit C but not on Exhibit F, the only pillar approximating to it which appears on the latter Exhibit being 5911. It would seem that the officer misread the latter number for 5918, as did I and apparently learned counsel at the hearing. Certainly I did not notice the error until I came to consider this judgement. The absence of pillar 5918 from, and the presence of 5911 on, Exhibit F are significant”.

He then came to the following conclusion –

“The result is that I am not satisfied that the land to which this action relates is part of the land of which the original plaintiff was in possession”.

He thereafter dismissed the plaintiff’s case on the ground that he was not satisfied that the plaintiff was in possession of the land shown in Exhibit C.

Before us learned counsel for the plaintiff submitted that the judge misdirected himself in coming to the conclusion he did because quite apart from the unchallenged evidence of both the witness from the Federal Lands Department and the plaintiff’s surveyor that the land in Exhibit C is the unacquired portion of Lot 7N in Exhibit F, the judge wrongly read pillar number 5918 shown in Exhibit F for number 5911. Learned Counsel for the defendant agreed that the judge was in error as to this for the pillar that he read as number 5911 was in reality, and as given in evidence, number 5918. Counsel for the defendant however sought, although unsuccessfully, to disparage the evidence of the surveyor and the witness from the Lands office on this point.