3PLR – KUTA V. ADELEKE

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]

KUTA

V.

ADELEKE

FEDERAL SUPREME COURT OF NIGERIA

13TH MAY, 1957.

FSC.148/1956

3PLR/1957/50 (SC)

 

BEFORE THEIR LORDSHIPS:

OLUMUYIWA JIBOWU, Ag. F.C.J. (Presided)

M.C. NAGEON DE LESTANG, F.J. (Read the Judgment of the Court)

MYLES JOHN ABBOTT, Ag. F.J.

BETWEEN

OYELUDE BALE KUTA

AND

  1. BELLO ADELEKE
  2. SOLOMON ADENIY1
  3. RAJI ODEYEMI
  4. ADEDOKUN

REPRESENTATION:

Adekunle (with him E. A. Cole) -for the Appellants.

Adenekan Ademola, -for the Respondents.

MAIN ISSUES

LAND LAW – Declaration of title – Onus on plaintiff – How discharged.

MAIN JUDGMENT

DE LESTANG, F.J. (Delivering the Judgment of the Court):

This is an appeal from a decision of the High Court of the Western Region, sitting at Ibadan, dismissing the appellant’s action wherein he claimed a declaration of title to a piece of land known as “Orodi” and an injunction.

The history of the land in dispute is fully set out in the judgment ap­pealed from. Suffice it to say here that the Kota community comprise four ruling families founded by the four sons of one Morolagun who was Bale of Kuta many years ago. The Bale is appointed from among these four ruling families. It is common ground that each family owns its own land and that there is also some land belonging to the community as a whole and known as stool land of which the Bale has the enjoyment during his baleship. The named appellant is the present Bale of Kuta and the respondent is a son of the previous Bale and a member of a different family from the appellant.

The appellant claimed that a certain piece of land called Orodi was stool land and sought a declaration to that effect. The respondent, however, con­tended that the land was the personal property of his father who had gifted it to him and was consequently his own personal property. The learned trial Judge after a careful and exhaustive review of all the evidence adduced found, in effect, in favour of the respondent. Towards the end of his judg­ment he said this:­

“The plaintiff has asked for a declaration of title that the land in dispute is stool land belonging to the four ruling houses of Kuta. The onus is on him to prove that he and those who claim with him have exercised exclusive proprietary rights on the land: that each Bale of Kura in succession has exercised these rights. From the evidence of plaintiff and his witnesses before me, the evidence of tradition they put before me is inconclusive and I am far from being satisfied that he has discharged the onus of prov­ing his title to the land.”

It is to this passage and in particular to the words “that each Bale of Kuta in succession has exercised these rights” that the appellant has taken excep­tion. He contends that by these words the learned Judge has placed an er­roneous and unnecessarily burdensome onus on the appellant.

In Njoe Ekpoeta Ekpo v. Chief Eta Eta Ita 11 N.L. R. 68, it was held that in a claim for declaration of title the onus is on the plaintiff to prove acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the plaintiff is the exclusive owner.

Mr. Adekunle has argued that that onus can be discharged without proof of the exercise by each successive Bale of exclusive proprietary rights. With this argument I am not prepared to disagree. What I am unable to agree with, however, is that in using the words complained of the learned Judge was laying down a test as to the onus of proof. These words must not be divorced from their context. It cannot be suggested that the sentence im­mediately preceding these words, viz: “The onus is on him to prove that he and those who claim with him have exercised exclusive proprietary rights on the land” places too high a burden on the plaintiff. Quite the contrary. The words that follow must, in my view, be read not only together with those that precede them but also in the light of the particular facts of the case. It was the plaintiff-appellant’s case that the land in dispute had been used by each suc­cessive Bale from time immemorial and it is this, in my view, that the learned Judge must have had in mind when he used the words under consideration.

But even if the learned Judge misdirected himself on the onus of proof, this would not, in my judgment, affect the result of the case.

There was such preponderance of evidence in favour of the respondent that the appellant could not reasonably have succeeded in his claim. Indeed the evidence which the learned Judge accepted and which is detailed in his judgment shows that it was the respondent and his predecessors and not the plaintiff and other Bale who had over a long period of time exercised rights of ownership over the land.

I would accordingly dismiss this appeal with costs, at £54. 0. 0.

 

JIBOWU, Ag. F.C.J.: I concur.

 

ABBOTT, Ag. F.J.: I concur.

 

Appeal Dismissed

 

 

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