3PLR – GAFARI F. AJIDAGBA V. GABRIEL A. ODENEYE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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GAFARI F. AJIDAGBA
V.
GABRIEL A. ODENEYE
FEDERAL SUPREME COURT OF NIGERIA
F.S. C. 209/1961
28TH MAY, 1962.
3PLR/1962/20 (FSC)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
SIR ADETOKUNBO ADEMOLA. C.J.F. (Presided)
SIR LIONEL BRETT, F.J.
JOHN IDOWU CONRAD TAYLOR, F.J. (Read the Judgment of the Court)
REPRESENTATION:
A.A. Isikalu -for the Appellant.
Olu Ayoola – for the Respondent.
MAIN ISSUES
LAND LAW – Declaration of title – Averment of ownership – Whether sufficient averment of possession.
LAND LAW- Declaration of title -Setting up title not pleaded -Propriety of.
PRACTICE AND PROCEDURE – Pleading – Title to land – Acquisition of title – Whether necessary to plead same.
MAIN JUDGMENT
TAYLOR, F.J. (Delivering the Judgment of the Court): This is an appeal from the judgment of Irwin, J. of the High Court of Abeokuta, granting the plaintiff a declaration of title to the area edged red on the plan exhibit “E”; and awarding him £10. as damages for trespass found to have been committed by the defendant on the land. An injunction was also granted to restrain further acts of trespass by the defendant.
At the hearing of this appeal, learned Counsel for the appellant advanced arguments on the following five points which are contained in different wordings in his additional grounds of appeal:
“1. That the respondent failed to comply with the order of the High Court of the 17th June, 1957 which allowed him to amend his writ on the payment of the requisite summons fee.”
There is no substance whatsoever in this complaint of learned Counsel, which in any case should have been raised at the hearing, for there is nothing on the record to show that the summons fee was not, in fact, paid.
“2. On the second point Counsel contended that the evidence adduced by the defendant showed that Adabalali, the predecessor in title of the defendant, purchased the property in dispute or part thereof from the Oludediro family for a consideration of £5. That the trial Judge did not direct his mind to this point.”
It is sufficient for me to say here that neither in the Statement of Defence was it averred, nor in the evidence was it alleged, that Adabalali’s title was based on a sale from the family. In the former, paragraph 16 reads thus:
”On the 11th day of January, 1954 Benjamin Oshinowo Adabalali, Rabiatu, Kadiri and Afusatu Gbadamosi jointly leased the land apportioned to them to the defendant and the transaction is evidenced by a document bearing the aforementioned date.”
The appellant cannot now be heard to set up a title based on an alleged sale which was never pleaded. I have in this respect set out only paragraph 16, but paragraphs 12, 13 and 15 are also pertinent.
“3. Thirdly, learned Counsel contended that the trial Judge erred in disregarding the documents exhibits `C’, and `J’ because they bear a date subsequent to the commencement of the action.” These exhibits were, in our view, rightly disregarded for the reason stated by the learned trial Judge.
“4. The fourth point was that in so far as possession was neither averred nor proved by the plaintiff, the learned trial Judge erred in entering judgment for the plaintiff.”
The plaintiff has averred in paragraphs 5 and 9 of his Statement of Claim that he is the owner of the land in dispute by virtue of a purchase, and in paragraph 10 it is averred that the defendant has trespassed on such land. In his evidence the plaintiff deposed inter alia as follows:
“The trespass took place in January 1957, and the defendant went on despite my warning to erect a building. The family had taken me on the land and put me in possession. Defendant’s building is now on the land.”
In my view, following the decision of the West African Court of Appeal in England v. Palmer 14 W.A.C.A. 659 at p.660, there is on the pleading sufficient averment of possession by the averment of ownership as contended aforesaid in paragraphs 5 and 9, and in any case it is clearly deposed to in the passage to which I have made reference.
“5. The final point raised by learned Counsel is that there was some variance in the evidence as to the identity of the land in dispute and that sold to the parties to this appeal.”
It was urged on behalf of the appellant that there was no evidence that the land sold to the appellant was part of the land allotted to Ashiru, which the latter rejected. The point here is that the land alleged to have been allotted to Ashiru which he rejected, was that alleged to have been sold to the respondent by the Oludediro family. There is ample support in the evidence of P. W.2, Ali Onikosi, the head of the Oludediro family, and Ashiru Kassim, P. W.4, to whom the land was originally allotted, that the land now in dispute was the land first allotted to P.W.4, which he rejected and as a result was later sold to the respondent. There is no substance in this appeal and I would dismiss it with costs assessed at 21 guineas.
ADEMOLA, C.J.F.: I concur.
BRETT, F.J.: I concur.
Appeal Dismissed.
