M.O. Odesanya V. D.A. Ewedemi (1962)
LawGlobal-Hub Lead Judgment Report
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:-
The land in respect of which the plaintiff claims declaration of title (hereinafter called “the said land”) is situate at Alapo Street, Ijebu . . . . . . . . . . . . . . . .
As for the facts of the case, there were three witnesses to the purchase. The vendor, Odulenu was dead. The appellant’s father who is alleged to have purchased on behalf of the appellant though alive, was never called as a witness. Akadiri Owuye who gave evidence for the appellant said in cross-examination that the land extended up to Alapo Street. It is true, as was pointed out by learned Counsel, that in examination-in-chief he also said that:
One of the boundary men was Karimu Araromi another Pitan, and Ogunbi.
Apart from this witness, the appellant himself gave evidence and in one breath supported the view that the boundary began at Alapo Street and in the next breath at Ogunbi’s house or land. He also gave evidence of user of the area of land between Alapo Street and the area edged pink or red on exhibit ‘B’. He deposed that his father, (against his will) put a woman tenant on the land and that she erected a shed thereon.
In my view, the teamed trial Judge was justified in finding that the appellant had not discharged the onus placed upon him; i.e. of showing that the area purchased on his behalf measured 150 ft. from Ogunbi’s house or land in an easterly direction. The preponderance of evidence supports the view that the land ran from Alapo Street 150ft. in a westerly direction towards Ogunbi’s house.
I think mention should be made of the fact that at the hearing of this ap-peal, learned Counsel for the appellant endeavoured to argue that even if his claim for title were dismissed, he could still succeed on the other two issues of trespass and injunction if he were able to show that his client had been in prior possession. It was, however, pointed out to Counsel that this was not raised in his grounds of appeal which related solely to the issue of title.
For the above reasons I would dismiss this appeal with costs which I would assess at 20 guineas in favour of the respondent.
Other Citation: (1962) LCN/0989(SC)