ABODERIN V. MORAKINYO

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NIGERIAN SUPREME COURT CASES

[1967] N.S.C.C.

ABODERIN V. MORAKINYO

5

MOYO ABODERIN

V.

MORAKINYO

SUPREME COURT OF NIGERIA

BRETT,

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J.S.C.

AJEGBO,

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J.S.C.

LEWIS,

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J.S.C.

17th March, 1967

APPELLANT

RESPONDENT

SUIT NO. SC 7

4

/

1

964

10

15

Administrative Law - Actions

to be exercised judicially.

- Declaratory judgment - Discretionary -

DisctedOn

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LandLaw - Land held under Customary tenure - Conveyances purporting to

transfer fee simple thereof

ISSUE:

1. Whether an owner of land under customary tenure can transfer the fee simple

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interest in the land by conveyance.

FACTS:

The plaintiff/appellant sued the defendant/respondent in the High Court for a

declaration of title to

a

piece of land situate at Molete, lbadan,Z200 damages for

trespass and injunction. He succeeded in the claim for damages for trespass.

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He failed in the other two claims for declaration of title and injunction. In his judg-

ment the trial Judge held that he was satisfied on the evidence before him that the

plaintiff "did have title to the land in dispute." He however held that the grant of

declaration was discretionary, and he exercised that discretion in refusing to grant

a declaration. The appellant relied on two conveyances which purported to grant

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him "Fee Simple' of the land. His Counsel submitted that as conveyances were

unknown to native law and custom, the Court should have granted the declaration

sought, namely, to grant the appellant a declaration in "fee simple" as claimed.

HELD:

1.

Following

Kabiawu v. Lawal

an owner of land under native law and custom can

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transfer his absolute interest and describe the entirety of such interests as

conveyed by him as an estate in 'fee simple."

2.

Although the grant of declaration is discretionary, that discretion should be

exercised judicially.

3.

The discretion was not properly exercised in this instance by the lower court;

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the declaration sought ought to have been granted.

S.A.S. Sowemimo

for the appellants

Respondent in person.

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AJEGBO, J.S.C.

(Delivering the Judgment of the Court): The plaintiff sued the

defendant in the High Court of Western Nigeria, sitting at Ibadan for a declaration

of title to a piece of land situate at Molete, lbadan, £200 damages for trespass and

injunction. He succeeded in the claim for damages for trespass for which the