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JOSIAH SOBANJO
V.
ADESINA OKE AND OGUNSANYA ONABOTE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
22ND DAY OF OCTOBER, 1954
W.A.C.A. NO. 233/1953
2PLR/1952/89 (WACA)
OTHER CITATION(S)
2PLR/1952/89 (WACA)
(1954) XIV WACA PP. 593-594
LEX (1954) – XIV WACA 593-594
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BEFORE THEIR LORDSHIPS:
DE COMARMOND, Ag. C.J., NIGERIA
COUSSEY, J.A.
STUART, J.
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BETWEEN:
JOSIAH SOBANJO – Appellant
AND
ADESINA OKE AND OGUNSANYA ONABOTE – Respondents
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ORIGINATING COURT(S)
Appeal by the plaintiff from judgment of Supreme Court of the Ibadan Judicial Division
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REPRESENTATION
J. E. C. David — for the Appellant
Adeleke Adedoyin — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LAND:- Claim for declaration of title to land – Defendant in possession – Onus on claimant – How discharged
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CASE SUMMARY
The claim was (inter alia) for a declaration of title to certain land; it stated the eastern boundary as the farmland of a certain family and the southern as the farmland of another family, but the plan put in by the plaintiff gave another name as the neighbour on the east. The defendants admitted that the plaintiff was owner of the land to the north-west of a certain line to be drawn between two points on the plan; of the land to the south of that line the defendants had, admittedly, been in possession for ten years before the action, and the plaintiff had to prove title to it. At the trial the defendants were absent for a certain reason; the plaintiff called evidence but the Judge held that he had failed to make out a prima facie case, and gave judgment for the plaintiff in respect of the land which the defendants conceded to him and for the defendants in respect of the land they claimed. The plaintiff appealed complaining that the Judge had drawn an imaginary line and given judgment without any authority.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
The line was not imaginary: there was the admission of the defendants for the demarcation of that line; but in regard to the land to the south of that line, the burden was on the plaintiff to prove his claim, which, however, he failed to discharge.
Case cited:-
(1) Victoria Aduke and Another v. Solomon Aiyelabola, 8 W.A.C.A. 43.
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MAIN JUDGMENT
The following judgment was delivered:
COUSSEY, J. A.
The claim in this action, which was transferred by order from the Shagamu Native Court to the Supreme Court of the Ibadan Judicial Division, was for a declaration of title to land at Ologbun Simitara and damages for trespass and an injunction. According to the statement of claim the eastern boundary of the land, so far as it is relevant to the issue raised, was Yelawusi (Oloja) Family’s farmland and the southern boundary was Ogunbena Family’s farmland.
As to the eastern boundary however, the survey plan filed by the plaintiff with his statement of claim showed Ewu Oloja as the neighbouring owner and not Yelawusi (Oloja) family. This disparity was not satisfactorily reconciled by the plaintiff’s evidence. At the outset of the trial counsel for the defendants admitted that the plaintiffs were the owners of all the land claimed lying north-west of an imaginary line drawn westwards from a point, later marked “X” by the trial Judge, where the motor road from Likosi intersects the pink edging on the plan, to Simitara village. The judgment declares the plaintiffs owners of this northern area of the land.
The parties went to trial as to the title to the land to the south of this line which, according to the plaintiff’s plan, is bounded on the east by Ewu Oloja, on the south and south-west by Ogunbena’s farmland and on the west by the defendants’ land.
In support of the claim to this area in dispute, the plaintiff himself gave evidence, and called as witnesses the surveyor employed by him to make the plan, two witnesses P.W.3 and P.W.4, to prove the boundaries of the land claimed, and a member of the plaintiff’s family P.W. 5 in support of his claim generally.
At the close of the plaintiff’s case, the defendants and their counsel were not in Court. Earlier in the proceedings counsel and his clients the defendants had been ordered by the Court to pay, in equal moieties, £21 costs for laxness in preparing the defence filed and counsel for the defence had been ordered to pay a further £5 5s. 0d. for default in complying duly with this interlocutory order.
The Court at one stage had declined to accede to an application by plaintiff’s counsel even before closing his case for judgment by default owing to the non-payment of these costs by the defendants for the very good reason that such a judgment would be liable to be set aside on the defendants’ application.
The plaintiff’s case was in fact closed when the defendants and their counsel were absent from Court presumably attending to their default as to the costs ordered against them. These incidents are referred to in order that it may be clear that the plaintiff’s action was not dismissed on a no-case submission by the defendants. The rule deduced from such cases as Victoria Aduke and Another v. Solomon Aiyelabola (1) and the cases there referred to is that a Judge sitting without a jury should not, where a prima facie case, however weak, is made out, non-suit the plaintiff or deal with a submission of no case unless counsel who makes the submission states that he is not calling evidence.
Here, at the stage reached the Court bad no alternative but to consider whether the plaintiff had established a right to the relief claimed. for the defendants took no further part in the proceedings and all their evidence therefore was before the Court. The learned trial Judge held that the plaintiff had not made out a prima facie case and accordingly entered judgment for the defendants as regards the land south of the line above referred to.
As to the first ground of appeal argued it is not correct to say that the learned trial Judge drew an imaginary line across the plan and granted to the plaintiff-appellant title to the area in dispute north of that line without any authority. There was the admission in Court of the defendants for the demarcation of that line and such an admission is as valuable as evidence. The defendants’ suggestion was that boundary trees since uprooted bad stood along that line. I fail to see how the plaintiff-appellant was prejudiced by this admission in attempting to prove his title to the rest of the land.
The plaintiff admitted that the defendants bad been for over ten yea.rs in possession of the area in dispute immediately before the action was commenced. The burden was upon the plaintiff to prove by independent evidence his right to a declaration and other relief. This he failed to do. His evidence and that of his witnesses P.W. 3. P.W. 4 and P.W. 5, was so valueless, as the trial Judge held, that at the close of the plaintiff’s case there was no evidence upon which a Court could reasonably and properly find a verdict for the plaintiff. A perusal of the record reveals that the witnesses referred to, by contradictions and prevarications as to the vital boundaries, as to pulling up boundary marks, as to earlier proceedings in the Native Court and as to the delay in taking action made a very bad impression; but the learned Judge had the advantage that this Court has not, of observing their demeanour also and there is a presumption in favour of his finding of fact which has not been displaced.
I am not satisfied that the decision appealed from is wrong and in my view the appeal should be dismissed.
The appeal is accordingly dismissed with costs.
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DE COMARMOND, AG. C. J.
I concur.
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STUART, J.
I concur.
Appeal dismissed.
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