AYODELE V. DR. OLUMIDE

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202

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NIGERIAN SUPREME COURT CASES

[1969] N.S.C.C.

AYODELE V. DR. OLUMIDE

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5

R. 0. AYODELE

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APPELLANT

DR. 0. OLUMIDE

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RESPONDENT

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10

(Substituted by Order

of Court on 30/9/68)

SUIT NO. SC 260/1967

SUPREME COURT OF NIGERIA

COKER,

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J.S.C.

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MADARIKAN,

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J.S.C.

FATAI-WILLIAMS, J.S.C.

23rd May, 1969.

LandLaw - Land - Not properly identified

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Civil Action - Procedure and Procedure - Non-suit wrongly ordered without

hearing counsel - Long possession cannot found a claim against a true owner.

ISSUE:

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1. What is the proper order to make where a planitiff in an action for declartion of

title fails to prove his case?

FACTS:

The plaintiff sued the defendant for a declaration of title to land, possession of

the property, damages for trespass, and an injunction to restrain the defendant

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from further acts of trespass. The High Court non-suited the plaintiff on the ground

that the property in question could not be identified.

The defendant appealed to the Supreme Court, contending that the plaintiff's

action should have been dismissed instead of non- suited.

HELD:

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1.

Where a plaintiff in an action for declaration of title, fails to prove his case, the

proper order to make is one of dismissal. There may be circumstances,

however, where it is in the interest of justice to make an order of non-suit instead

of dismissal. It is for that reason impossible to lay down any hard and fast rule

as to the circumstances in which a non-suit as opposed to a dismissal, should

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be ordered and it is most undesirable that in this respect the discretion of the

court should be fettered or circumscribed.

2.

In this case,not only was there no proof of the portion of the Oloto family land

allotted to Tekobo Fagbayi, there was also no clear evidence to show that it

was this same land that was bought by both Bintu Fatumo and Liasu Momoleso

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under the writ of

Fifa

and which was later partitioned. There was nothing to

connect the land bought from Thomas by the respondent with the portion

allotted to Bintu under the deed of partition and which she later sold to Thomas.

These gaps in the respondent's root of title go beyond a mere failure to identify

the land in dispute. In these circumstances, it would have been necessary that

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the trial Judge should have asked counsel for the parties to address him on the

point before making the order of non-suit.