Abiodun Adelaja V. Olatunde Fanoiki & Anor. (1990)

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KARIBI-WHYTE, J.S.C.

This is an appeal to this court from the judgment of the Court of Appeal Division, Ibadan, against the dismissal of the appeal of the appellants against the judgment of Olowofoyeku, J., of the High Court of Oyo State, sitting at Ibadan.

Appellants were the plaintiffs in the court of trial.

Plaintiff, Abiodun Adelaja, had brought this action as Attorney for Victor Oludemi, against Olatunde Fanoiki, as the defendant. The facts of the case are quite simple and not complicated. The action as endorsed on the writ of summons is for-

(1) Declaration of title to all that piece or parcel of land, lying and being and situated at Tabontabon village, Oke-Ado, Ibadan, Oyo State of Nigeria and shown on the plan attached to the deed of conveyance dated the 16th day of June, 1958 and registered as No. 19 at page 19 in volume 254 of the lands registry in the office at Ibadan.

(2) N500.00 (Five Hundred Naira) damages for trespass committed in 1972 by the defendants, their agents and/or servants on the said land belonging to and in possession of the plaintiffs situated land lying and being at Tabontabon village, Oke-Ado, Ibadan Oyo State of Nigeria and as described in the said deed of conveyance recited above.

(3) Injunction restraining the defendants agents and/or servants from further trespassing on the said land or any portion thereof.

On the application of the defendant, the second and third defendants were joined by order of court. After pleadings had been settled, the 3rd defendant was reported to have died and the plaintiff withdrew the action against the 3rd defendant who was accordingly struck out of the action. After due trial of the action, the plaintiff’s claim against the first defendant was dismissed. He was non-suited against the second defendant.

As against the 1st defendant, the learned trial Judge held that the plaintiff having failed to prove due execution of the conveyance (exhibit” A”) to him by the grantors, has failed to discharge the onus on him that “exhibit A” has divested the Alade family of the interest alleged conveyed. He therefore cannot be entitled to a declaration of title as claimed or other interest, which by section 40 of the Land Use Decree No.6 of 1978 he is entitled to have if the claim in declaration of title were to be established. Accordingly, the claims for damages for trespass and injunction sought failed. As against the second defendant, the trial Judge heard submissions whether there should be an order for a non-suit. After observing that the second defendant was joined by order of court at the instance of the first defendant and relying on Craig v. Craig (1966) I All N. L. R. 173, held.

“If the plaintiff is given a second chance to prove his case and succeeds, the 2nd defendant would certainly not be wronged because such would establish that he had already divested himself to the plaintiff of right or title to the balance of the land, being 77% of the subject matter of plaintiff’s claim, and that would prevent him from taking an unfair advantage due to the lapse of the plaintiff in this case” (See p. 65 lines 27-35).

Plaintiffs appealed to the Court of Appeal against the decision. As a whole, eighteen grounds of appeal were filed. However, only eleven were argued before the court. Their Lordships in the Court of Appeal in dismissing the appeal agreed with the learned trial judge and held that the appellant had failed to prove due execution of the deed of conveyance, exhibit A on which he relied. Accordingly, the Alade family was in a position to sell the area in dispute to the 1st defendant/respondent since its alleged divestiture to the plaintiff/appellant over a decade earlier had not been established.

On the issue whether the pleadings were in a confused state, the Court of Appeal held that issues were properly joined at the close of pleadings and judgment was delivered on the issues as joined. It was held that since the amendment of the statement of claim did not raise any new issues requiring amendment of the statement of defence, amendment of the statement of defence was not necessary.

The second respondent did not appeal against the order of non-suit against him. Appellant has further appealed the adverse decision against him.

Appellant filed only one ground of appeal within time. With leave of the court, extension of time to file four additional grounds of appeal was granted. The grounds of appeal excluding the particular are as follows-