David Taiwo Elabayo & Anor V. Joseph Darlington (1970) – LLJR-SC

David Taiwo Elabayo & Anor V. Joseph Darlington (1970)

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LEWIS, J.S.C.

In Suit IK/109/62 the plaintiff’s writ read
“The plaintiff claims against the defendants jointly and severally:  (i) the sum of 5,000pounds (Five thousand pounds) being special and general damage for trespass committed sometime in May 1962 by the defendants on plaintiff’s land situate and lying at Ikeja Division Western Nigeria. (ii) Injunction to restrain the defendants, their agents, servants or assigns from further acts of trespass on the aforesaid land.”, and in his statement of claim he traced his claim to title to the land in dispute to a conveyance (exhibit C) to him by Abraham Oso Ojelade on the 26th of August, 1947 whose title in turn was founded on a conveyance (exhibit B) dated the 18th of September, 1943 by one Yesufu Summonu Ladejo, who in turn founded his title on a conveyance (exhibit A) by one Osun Apena dated the 14th of October, 1919.

In paragraphs 9 and 10 of the statement of defence the defendants admitted entry on the land in question but maintained they were entitled to do so as they had title to the land through originally one Sule Kajola, who received a conveyance (exhibit E) of the land from one Braimoh Yisa on the 16th of November, 1914.

On the death of Sule Kajola the land devolved on his descendants, one of whom was the 1st defendant, who got a conveyance of the land (exhibit F) dated the 3rd of September, 1962 from the accredited representatives and lawful attorneys of the entire members of Sule Kajola’s family (one of whom was the 2nd defendant who had gone on the land earlier by virtue of a power of attorney from the family (exhibit G). On the 8th of October, 1964 the record shows that the parties agreed the issue between them as the record reads: “Both counsel agree to state what the issues are and to have deeds of conveyance and other documents put in by consent.
Issues: Is the land in dispute within the area covered by the plaintiff’s conveyances or within the area of the conveyances of the defendant’s The issues as to whether the defendants entered the land in dispute has been admitted in paragraphs 9 and 10 of the statement of defence.”

The real issue that the learned trial judge had to determine was exactly where the land in dispute, which was agreed between the parties, was relative to the original conveyances of the respective parties. Although Kester, J. (as he then was) attempted to resolve the difficulty by interpreting the oral evidence of the respective surveyors he did not cause a composite plan to be prepared. He correctly set out in his judgement the issue before him when he said:-

“The onus is on the defendants to prove a better title to possession. In this respect the issue to be decided is whether on the evidence before the court the land in dispute is covered by defendant’s conveyances. In other words whether the land in dispute formed portion of Kayaoja’s land or whether it was part of Ojelade’s land”, but he then made findings of fact on the plans before him without resolving by having plotted on a composite plan where the respective areas fell.

He came to the conclusion on the evidence that the land in dispute fell within Ojelade’s land and that it never formed part of Kayaoja’s land and he accordingly found for the plaintiff on his claim for trespass and awarded him 500pounds damages together with the injunction he sought. Before us on the 2nd of October, 1969, counsel for the respective parties namely, Mr Lardner for the 1st appellant, Mr Abudu for the 2nd appellant and Mr Ayoola for the respondent all agreed that the real issue could only be properly settled by having an expert independent surveyor plot the conveyances, on which they all relied, on a composite plan.

Accordingly with their agreement this Court ordered that exhibits A, C, E and F be referred to the Director of Surveys, Lagos and that he be requested to prepared a composite plan. That was done and the composite plan that was prepared was sent to this Court and on the 6th of February, 1970 admitted in evidence as exhibit SC.1. When that plan (exhibit SC.1) was examined it showed with absolute clarity the true position.

The common boundary which was agreed between the parties was clearly shown, but the area in dispute (exhibit F) fell within the area in exhibit C, and both exhibit F and exhibit C fell within the area of exhibit E, which was the defendants original conveyance and were in no way within the area of the plaintiff’s original conveyance (exhibit A).

The only argument that Mr Adejoro, who on the 6th February, 1970 appeared for the respondent, could advance was that the plan “might be suspect”,
notwithstanding it had been prepared and submitted to this Court by the Director of Surveys, Lagos. We see no merit whatsoever in his submission. The composite plan in our view has satisfactorily clarified the position of the land in dispute, which is shown to fall within the area of the defendants’ title and not that of the plaintiff; this means that the defendants were entitled to be on the land and the plaintiff’s claim for trespass and injunction should have failed.

The judgement of Kester, J. on the 20th of October, 1965 in Suit IK/1 09/62 awarding the plaintiff #500 damages for trespass and an injunction together with costs of 150 guineas is accordingly hereby set aside and the order of this Court is that the plaintiff’s claim be dismissed.

The appellants are entitled to their costs of this appeal which we assess at 67 guineas to each defendant and to their costs in the High Court which we assess at 50 guineas to each defendant.  

SC.357/1967