Henry B. Phillips V Joseph Ogundipe (1967)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

Henry Babalola Phillips was the plaintiff in an action he instituted in the Lagos High Court against Joseph Oloyinloye Ogundipe and in which he claimed:-

“1. Declaration of title in fee simple of all that parcel or piece of land which forms part of No. 86 Agege Motor Road, Idioro covered by conveyance dated the 7th day of June, 1920 and Registered as No. 58 at page 179, in Volume 138 in the Land Registry in Lagos.

2. Rectification of all entries in the register of titles in relation to the said land.

3. The sum of £100 as damages for trespass committed by the defendant on the said land belonging to the plaintiff and in his possession.

4. A perpetual injunction restraining the defendant, by himself, by his servants or agents or otherwise from continuing or repeating further acts of trespass on the said land.”

Pleadings were ordered and after their delivery it became obvious that the complaint of the plaintiff was against the registration and entry of the name of the defendant, pursuant to the provisions of the Registration of Titles Act, cap. 181 as the registered proprietor of the fee simple estate in the land in dispute. The land itself is stated to be situate along the Agege Motor Road in the Idioro district of the mainland of Lagos. Both by his pleadings and the evidence given on his behalf the plaintiff claimed to have derived title to the land in dispute by series of conveyances of which the first was dated the 28th May, 1920; and also to have exercised exclusive acts of possession on the land since he purchased is on the 7th June, 1920. There was evidence from the caretaker whom he had placed on the land that whilst he was in possession on the 21 at August, 1965, the defendant forcibly entered on the land with some quantity of building materials and commenced building operations thereon. It was also part of the case of the plaintiff that without his knowledge and consent the defendant had been registered under the Registration of Tides Act as the owner of the freehold interest in the land in dispute under Title No. M03718.

The defence of the defendant was simple. He had purchased the land from one Michael Alatishe and had secured the entry of his own name on the register as a transferee from him of his freehold interest in the land and he based his right to enter on the land on this fact.

In a reserved judgment, Lambo, J., non-suited the plaintiff’s case with costs observing as follows:-

“From this it is plain that the court is unable to decide whether or not the land upon which the plaintiff’s claim is based is the same land described in defendant’s Land Certificate of Title No. M03718.

In the circumstances the plaintiff’s claim will be non suited. The effect of this judgment however, is that the plaintiff will be able hereafter to have a second bite at the cherry.”

The plaintiff has appealed against this order. He will hereafter in this judgment, as before, be referred to as the plaintiff. The defendant has also appealed against the order of non suit. There is therefore both an appeal and a cross-appeal but the defendant will hereafter, as before, in the judgment be referred to as the defendant. At the beginning of the appeal, learned counsel for the defendant indicated that he agreed with the plaintiff’s counsel that the evidence did establish that the land being claimed by both parties was the same. It is clear therefore that the ground on which the order of non-suit was based by the judge is not acceptable to either side. In this connection we observe that neither party was invited to argue the question of non-suit and it is little surprising that the order was unsupported by either party in this Court. An order of non-suit, admittedly a discretionary one, should be employed rather sparingly and only in cases in which such an order is clearly justified by the circumstances.

Besides, such an order should not be made when counsel on either side has not requested it, and counsel on both sides have not been invited to address the court on the propriety of adopting such a course. In Craig v. Craig (1967) N.M.L.R. 52 at p.55 this Court observed as follows:-

“It seemed to us, when considering our judgment, that this might be a proper case for a non-suit; but we thought that we ought first to hear learned counsel. And we pause to observe that when the propriety of a non-suit has not been argued, if a trial judge should think of entering a non-suit it is desirable that he should first ask counsel for the parties for their submissions. We invited the learned counsel to state their arguments for and against a non-suit. They referred to Elias v. Disu and others and Dawodu v. Gomez. We mean no disrespect when we say that those cases do not solve the question before us since each case must be considered in the light of its own facts.