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ALIMORU AJIWON ABUDULAI AGUNBAIDA
FEDERAL SUPREME COURT OF NIGERIA
29TH MARCH, 1956.
BEFORE THEIR LORDSHIPS:
SIR STAFFORD FOSTER SUTTON, F.C.J. (Presided)
OLUMUYIWA JIBOWU, F.J.
JOHN MYLES ABBOTT, Ag. F.J. (Read the Judgment of the Court)
PRACTICE AND PROCEDURE – APPEAL – Findings of fact – When appellate court will set aside.
PRACTICE AND PROCEDURE – APPEAL – Weight of evidence – Failure of trial Judge to give sufficient weight to – Effect.
CONVEYANCE – Deed of conveyance – Non execution of – Death of one of the parties named therein – When it amounts to sufficient excuse.
LAND LAW – Declaration of title and possession – Onus of proof in action for – On whom lies – Failure to discharge – Effect.
PRACTICE AND PROCEDURE – Dismissal – Plaintiff failing to prove his case – Dismissal not non-suit appropriate.
Kayode -for the Appellant.
Kotun -for the Respondent.
ABBOTT, AG. F.J. (Delivering the Judgment of the Court):
This is an appeal by the Plaintiff from the judgment of de Comarmond S.P.J., (as he then was) delivered on 4/12/53 whereby he non-suited the plaintiff on his claim for
(1) a declaration of title to a piece of land at Ikorodu Road, Odi Clowo; and
(2) possession of the property.
The learned Trial Judge’s judgment deals extensively with the evidence both documentary and oral and also the submissions of Counsel and I respectfully agree with his submissions, except in one respect.
At page 41 of the Record of Appeal he says this:
“It was explained by Odogbo that the land mentioned in the Exhibit “G” is plot 19 of Mr. Coker’s lay-out (Exhibit “D”).
I have no evidence that the plot 19 mentioned in the receipt is the same as plots 26 and 34 of Mr. Smith’s lay-out (Exhibit “A” and “E”). I have no reliable evidence that plot 19 was sold (or purported to have been sold) by Odogbo to Mrs. Jeroni and 1 have no evidence that Dawodu, who signed receipt “G” was the authorised agent of Mrs. Jeroni. It is not necessary for me to go into further details about the Defendant’s alleged title; I do not consider that he has established any title to the plots 26 and 34 claimed by the Plaintiff as being her property.”
It seems to me that the learned trial Judge failed to give sufficient weight to the two plans Exhibits “A” and “D.” An examination of these plans makes it clear, in my view, that plot 19 mentioned in the receipt Exhibit “G” put in by the Respondents and shown on Exhibit “D” impinges upon plots 26 and 34 which are the subject of the Plaintiff’s claim and are shown on Exhibit “A.” Mr. Kayode, for the appellant, contended that the other findings of fact in the extract from the judgment which I have quoted are separable from that from which I feel compelled to dissent, and from each other, but it seems to me that those other findings follow as a natural sequence from the first, and that all three are inter-connected.
But even assuming Mr. Kayode to be right, he is faced with Exhibit “H” which is an engrossment of a deed of conveyance of plot 19 to the Respondent and it contains a recital that the property has previously been sold, without a conveyance being executed, to Mrs. Jironi, and she appears in the engrossment as a party to the deed. The evidence about the non-execution of this deed is that it would have been executed had not one of the parties of the first part named therein unfortunately died before the deed could be signed. It is important to note that everything was plainly ready for the execution of the deed, because the engrossment shows, at its foot, that a fee was paid in respect of the execution which was proposed to be carried out before the Magistrate at Ebute Metta.
Taking into consideration, in addition to the facts already mentioned, the evidence of Odogbo which they corroborate, there seems to me to have been strong evidence upon which the learned trial Judge could properly have concluded that plot 19 was sold to Mrs. Jironi.
This, of course, makes no difference to the finding that the Plaintiff had failed to discharge the onus of proving that he was entitled to a declaration and possession as claimed. It merely fortifies the view taken by the learned trial Judge that the Plaintiff had not made out his case.
In the circumstances, therefore, I am of the opinion that the learned trial Judge ought to have dismissed the plaintiff’s claim instead of entering a Judgment of non-suit.
I would, accordingly, dismiss this Appeal but vary the judgment of the Court below by dismissing the claim of the Plaintiff. The Appellant must pay the costs of this Appeal fixed at £18.16s.0d.
FOSTER SUTTON, F.C.J.: I concur.
JIBOWU, F.J.: I concur.