ADEKANBI V. AYORINDE

• Pages: 280-285

280

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NIGERIAN SUPREME COURT CASES

[1970] N.S.C.C.

"The accused shall be hanged by the neck till he is dead."

Trial court directed to rectify

omission: otherwise sentence

confirmed.

ADEKANBI V. AYORINDE

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10

ALLI ADEKANBI

V

ADEBAYO AYORINDE

APPELLANT

RESPONDENT

SUIT NO.SC 301/1968

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SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

LEWIS,

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J.S.C.

SOWEMIMO,

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J.S.C.

27th November, 1970

Land Law - Declaration - Title to land Plaintiff failing to prove exclusive right

to land - No finding of joint owneiship - W7icther trial Judge was right in

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dismissing plaiwiff's claim instead of entering a non-suit.

ISSUE:

1. Is it necessary for a plaintiff in an action for declaration of title to prove his right

to exclusive possession?

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FACTS:

The plaintiffs claim against the defendant is for a declaration of title, general

damages for trespass and an injunction. The trial Judge found that the plaintiff

had not made out his claim for a declaration of title nor proved exclusive possess-

ion such as to enable him succeed in this action. He therefore dismissed the plain-

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tiff's claim. On appeal to the Western State Court of Appeal, the order of dismissal

was set aside and a non-suit was entered. The defendant appealed to this court.

HELD:

1.

It is not a rule of law that a plaintiff who fails to establish that he is in exclusive

possession of land in respect of which he seeks a declaration, but has

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established some interests less than absolute over some unspecified portions

of the land, is automatically entitled to a non-suit. Whether or not the court

should enter a non-suit is a matter which is tied up with the circumstances of

individual cases and a court, before entering a non-suit, should give proper

consideration to all the issues involved in the making of such an order.

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2.

In this case, the High Court did not make any finding of joint ownership of the

plaintiff and the defendant. Since there was no finding of common user the

case could not be brought within the principle established by Ume v. Ezechi

where there was accepted evidence of a common user. Accordingly, the

decision of the High Court dismissing the plaintiffs claim should not have been

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upset.

3.

Where a dismissal or non-suit had been entered the plaintiff's claim as

propounded fails and in those circumstances a defendant is entitled to his costs.