3PLR – KADIRI AWERE V. JOSIAH ESULANA ATITEBI

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

KADIRI AWERE

V.

JOSIAH ESULANA ATITEBI
SUIT NO. FSC 116/1961

FEDERAL SUPREME COURT

16TH APRIL, 1962

3PLR/1962/79  (FSC)

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

 

BRETT, F.J.

UNSWORTH, F.J.

TAYLOR, F.J.

 

BETWEEN

 

  1. KADIRI AWERE
  2. M.B. OGUNDAIRO
  3. RAJI AKINOLA

For themselves and other members of the OJO-ONIYUN Family

 

AND

 

  1. JOSIAH ESULANA ATITEBI
  2. FRANCIS ADEYEMI ATITEBI
  3. I.O. OLUGBUSI

REPRESENTATION

Mr. H.A. Lardner for Appellant.

Chief F.R.A. Williams Q.C. (Mr. G.C. Nzegwu with him) for Respondents.

MAIN ISSUES

LAND LAW –  Declaration of title to land Damages for trespass possession Cross appeals One for dismissal of Plaintiffs Claim, the other for trial judge’s refusal to give costs Appeal.

MAIN JUDGMENT

BRETT, F.J.: These are cross-appeals, in which the plaintiffs appealed against the dismissal of their claim for a declaration of title to a piece of land, an order for possession and damages for trespass, and the defendants appealed against the trial judge’s refusal to award them costs.

Five grounds of appeal were filed by the plaintiffs but in substance they only argued three. First, they complain that the judge failed to consider their claims for possession and for damages separately, and that the dismissal of their claim for a declaration of title as owners did not necessarily involve the dismissal of their other claims. As a general statement it is true that the right to possession and the associated right to damages for trespass do not necessarily involve ownership, but in this case the reason for refusing the declaration of title was the failure of the plaintiffs to identify the land in question as having been in their possession or that of their tenants, and the ground of appeal fails.

Secondly, it is said that on an examination of the plans, Exhibits 4 and 5, and the composite plan, Exhibit 12, it will be apparent that the plaintiffs have succeeded in proving possession, and therefore ownership, of the land bounded by pillars DB 1436, 1498 T, XA 5113 and LB 4773. I do not agree. Mr. Lardner, for the plaintiffs, conceded that the evidence was scanty, and the failure to identify precisely either the land given to Ajayi, grandmother of the witness, Senotu Afisi (in which the plaintiffs have no further Interest) or the land where their tenant, Aveda, taps palmwine is a serious weakness in the case for the plaintiffs. I agree with the Judge’s finding, and I do not regard the plans as proving what it is said they prove.

Lastly it is said that no significance should be attached to the omission of the land now in dispute from Exhibit 10, the plan prepared for the plaintiffs in 1954, on the ground that that plan shows only the family land “at Ojo-oniyun Street, Ebute-Metta” whereas what is now in issue is the land at “Ojo-Oniyun Village, Ebute Meta.” As to that, the surveyor, Mr. S.A. Alaka, said in evidence that between 1954 and 1958 the plaintiff engaged him to work for him in Ojo-Oniyun Village, and no suggestion was made in the Court below that the distinction now suggested was to be drawn. The submission appears to be an afterthought and I would attach no weight to it.

 

I would dismiss the appeal of the plaintiffs.

 

As regards the cross-appeal, the trial judge had prepared a judgment dismissing the claim with costs, but owing to the absence of counsel for the defendants when judgment was delivered he made no order in their favour. It is not the practice in Nigeria to require a formal application for costs and the absence of counsel was, with respect, no ground for depriving the successful parties of their costs. I would allow the appeal of the defendant and award them by way of costs in the Court below the sum which the trial judge would have awarded i.e. 100 guineas. I would award them costs of the appeal and cross-appeal assessed at 35 guineas.

 

Unsworth, F.J. I concur.

 

Taylor, F.J. I concur.

 

error: Our Content is protected!! Contact us to get the resources...
Subscribe!