Claim for
declaration of title to
land-Onus not discharged in
Trial Court and claim dismissed
against all Defendants.
Held:
Plaintiff not having satisfied
trial Judge what was the area
claimed the original judgment in
respect of first two defendants
was correct, but. as second two
defendants did not dispute the
claim a non-suit should have
been entered in their cases and
not a dismissal of the claim
against them. Judgment
accordingly.
There is no
need to set out the facts.
Sir
William Geary, Bart (J. C. Zizer
with him) for Appellant.
Ayo
Williams for first and
second Respondents.
Third and
fourth Respondents in person not
resisting the appeal.
The following
joint judgment was delivered:-
KINGDON, C.J.,
NIGERIA, PE'l'lUDES, C.J., GOLD
COAST AND WEBB, C,J., SIERRA
LEONE.
In this case
the plaintiff claimed a
declaration of title against
four defendants. The first two
defendants resisted the claim,
the last two did not. The claim
against all was dismissed in the
Supreme Court and from the
judgment of dismissal the
plaintiff now appeals. We will
deal with the cases of the first
two defendants and the last two
separately.
First as to
the case against the first and
second defendants. The claim
reads" The plaintiff's claim is
for a declaration of title to
all that piece or parcel of land
situate and being at Odogun in
Isheri District." It is
obviously of the vaguest nature.
Now it is the
first duty of a plaintiff who
comes to Court to claim a
declaration of title to show the
Court clearly the area of land
to which his claim relates.
In this case
the plaintiff completely failed
to discharge this first duty. A
plan was ordered by the Court,
but he never had one made for
the case. Instead he came into
Court and his counsel stated "
the plan in suit 117{1936 is in
Court and it has not been denied
that that plan is sufficient for
this suit." But even that plan
was never put in and was not
before either the lower Court or
this Court. Instead a plan made
for the purpose of another suit
in No. 265{1933 was tendered and
admitted as Exhibit A.
Immediately
this was tendered counsel for
defendants said "the plan does not
refer to the land claimed but to
Ito Abo Swamp in lkorodu
District." As a plan to assist the
Court in the present case this
plan is entirely useless. It is
true that the plaintiffs first
witness, Salako, who held a Power
of Attorney for plaintiff, stated
" the plan (Exhibit A) shows the
exact area we are claiming in this
suit. 1Ve only claim herein the
land on one side of the river."
But he did not indicate how the
area now claimed is to be
identified on the plan, nor can
that question be determined. The
area. edged red on that plan is so
edged to indicate the area about
which the dispute was in the 1933
suit, viz : -the area known as Ito
Abo Swamp, obviously only a small
portion of Odogun land. The
greater part of Odogun village
itself is shown as outside that
area. That the plaintiff's
attorney himself didn't really
know what he was claiming is shown
by his own evidence in which he
contradicts himself in consecutive
sentences :-" The Forest Reserve
is not part of the land claimed.
It is part of Odogun. We claim the
whole of Odogun."
For these
reasons· we are of opinion that
the plaintiff entirely failed to
discharge his first duty, namely
to show what he was claiming, and
the learned trial Judge was right
in holding, when plaintiff closed
his case, that no prima facie
case had been made out which
the defendants should he called
upon to answer.
Further in view
of the way in which plaintiff
presented his case, we think that
the learned trial Judge exercised
a proper discretion in dismissing
the claim rather than in entering
a nonsuit.
The appeal
against the first two
defendants-respondents is
therefore dismissed with costs
assessed at twenty guineas.
As regards the
third and fourth defendants, since
they have never disputed the
plaintiff's claim, we think that
the proper Order would have been
one of non-suit rather than
dismissal. In their case therefore
the appeal is allowed and it is
ordered that the judgment
dismissing the claim be set aside
and a judgment. of non-suit be
entered. The plaintiff-appellant
does not ask for any costs against
the third and fourth defendants
and awarded none.
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