ADEDIBU & ANOR. V. OLOFA

• Pages: 103-107

ADEDIBU & ANOR. V. OLOFA

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"3. The Plaintiff became a beneficial owner for an estate under native Law and

Custom or in the alternative for an estate in fee of a large tract of land around

Molete of which the land in dispute forms part."

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Again, we agree with Mr. Sowemimo. In

Kabiawu v. Lawal

(unreported)

SC.74/1964, judgment of this court delivered on 12th November, 1965, the court

observed:

"there is no dispute that an owner of land under Native Law and Custom can

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transfer his absolute interest arid describe the entirety of such interests as con-

veyed by him as an estate in fee simple."

The appeal of the plaintiff is allowed and the cross-appeal by the defendant is

dismissed. The judgment of Duffus J. in 1/129/61 is to the extent that it dismissed

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the claim for a declaration of title and injunction set aside. There will be judgment

for the plaintiff for a declaration of title in fee simple for that piece of land situate

at Molete, lbadan, more particularly described and delineated on Plan LL.1970

dated 4th March, 1961, and an injunction to restrain the defendant from entering

on the land.

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Appeal allowed. Declaration and

injunction granted.

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ADEDIBU &

ANOR. V. OLOF

1.

BELLO ADEDIBU, MOGAJI,

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IBA OLUYOLE

2.

ATANDA OYENIRAN

V.

LATIFU AJIMOTI OLOFA

35

SUPREME COURT

OF

NIGERIA

BRETT,

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J.S.C.

AJEGBO,J.S.C.

LEWIS,

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J.S.C.

17th March, 1967

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APPELLANTS

RESPONDENTS

SUIT NO. SC 426/1965

Land Law - distinction between settler and the holder of a grant is no more

than a mere technicality - Onus of proof - Plaintiff must establish his claim

as pleaded - Effect of dismissal of plaintiff's claim in the absence of a

counter-claim by the defendants - Dismissal does not amount to a declaration

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of title in the defendants - Costs already paid on a judgment which is

subsequently set aside become automatically refundable without a further order.

ISSUES:

1.

Whether the distinction in customary land law between a settler as of right and

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the holder of a grant is a mere technicality.

2.

Whether a claim ought to be entirely dismissed where the Judge is not satisfied

as to the truth of the claim as pleaded.

3.

Whether a Judge can make a declaration of title for defendants where no such

counter-claim was made.