EFETIROROJE V. OKPALEFE

• Pages: 175-198

EFETIROROJE V. OKPALEFE

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175

EFETIROROJE V. OKPALEFE

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AHWEDJO EFETIROROJE & 2 ORS.

V.

10 HIS HIGHNESS ONOME OKPALEFE II

& 2 ORS.

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SUPREME COURT OF NIGERIA

BELLO,

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C.J.N.

KARIBI-WHYTE,

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J.S.C.

NNAEMEKA-AGU, J.S.C.

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WALT,

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J.S.C.

AKPATA,

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J.S.C.

APPELLANTS

RESPONDENTS

APPEAL NO. SC. 143/1989.

5th July, 1991.

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Appeals - Exercise of discretion by trial court - Attitude of appellate court thereto.

Land Law - Declaration of title - Proof - Onus on plaintiff - When does onus shift on to

the defendant - Survey plan - Whether a sine qua non.

Practice and Procedure - Order of Non-Suit - When appropriate - Intention and rationale

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therefor - Consideration.

Words and Phrases - "Non-Suit" - Meaning of - "Nothing to choose between the evidence

of the parties" and "Neither of the parties is entitled to judgment" - Difference between.

ISSUES:

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1.

What is a plaintiff required to prove in order to succeed in an action for

declaration of title to land?

2.

When does the evidential burden of proof of title to land shift on to a defendant

in an action for declaration of title to land?

3.

Whether a survey plan of a disputed land is an absolute necessity in an action

for declaration of title.

4.

What is the meaning of the expression "Non- Suit" when used in Civil

Proceedings?

5.

When is it appropriate for a court to make an order of non-suit?

FACTS:

The plaintiffs brought an action in the High Court against the defendants in

which they claimed a declaration of title to the piece of land in dispute, damages

for trespass to the land and an injunction.

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The learned trial judge, after hearing the witnesses and considering the evi-

dence led by both sides, observed that the plan ("Exhibit A") tendered by the

plaintiffs was in violent conflict with the evidence of the 3rd plaintiff, who was the

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NIGERIAN SUPREME COURT CASES [1991] 2 N.S.C.C.

only plaintiff that testified as to the limit of the land in dispute. As the trial judge

was unable to know the extent of the lands of the plaintiffs, he therefore held that

the plaintiffs had failed to discharge the onus of proof on them with respect to the

boundaries of the land in dispute, and that there was "nothing to choose between

the evidence of the warring parties in these regards". The trial judge then entered

a non-suit, after calling on counsel for the parties to address him as to the proper

order to make, and concluding that none of the warring parties is entitled to

judg ment".

The defendants appealed to the Court of Appeal against the order of the trial

judge. They prayed that an order dismissing the plaintiffs' case be substituted for

the order of non-suit, on the ground, inter alia, that the plaintiffs failed to prove with

certainty the boundaries of the land being claimed.

On their part, the plaintiffs conceded that the northern boundary of the disputed

land was unascertainable, but they however argued that the defendants had also

not established any claim to the land and that consequently, a non-suit was the

appropriate order.

The Court of Appeal allowed the appeal of the defendants, set aside the

judgment of the trial court and ordered that the claims of the plaintiffs be dismissed

in their entirety. In so holding, the Court of Appeal relied on the well-settled

principles that in an action for a declaration of title to land, the onus lies on the

plaintiff to satisfy the court that he is entitled to the declaration sought on the

evidence. and on the strength of his own case and not on the weakness of the

defendant's case.

Being dissatisfied, the plaintiffs appealed to the Supreme Court against the

judgment of the Court of Appeal, contending that the learned Justices of the Court

of Appeal erred in law in interfering with the exercise by the High Court of its

discretionary power to enter a non-suit in this action.

HELD :

1.

The onus on the plaintiff in an action for declaration of title is to satisfy the court

that he is entitled on the evidence brought by him to a declaration of title. The

plaintiff may discharge this onus of proof either by adducing cogent evidence

of traditional, or other evidence of positive and numerous acts of ownership

demonstrating unequivocal exercise of dominion, over the land. For the

purpose of a declaration of title to land, the plaintiff must rely on the strength

of his own case and not on the weakness of the case of the defendant. If this

onus is not discharged, the weakness of the defendant's case will not support

the case of the plaintiff. However, where the evidence of the defendant tends

to establish his title and support his case, the plaintiff is entitled to take

advantage cf such evidence to establish his title.

(See p.183 lines 21 - 28)

2.

Where issues have been joined as to title to land and plaintiff has adduced

evidence to show title the onus shifts on to the defendant to prove the contrary.

It is only if at the conclusion of the evidence the defendant has not rebutted

the evidence of the plaintiff that it could be said that plaintiff had established

his claim to the declaration of title sought. However, the position is different

where defendant is not claiming title. In that case the question of his proving

title does not arise. (See

p. 183 lines 39 - 47).

3.

Although a survey plan is very valuable in the determination of the certainty of

the land, subject matter of a declaration of title, a court can grant a declaration

in the absence of a survey plan. The acid test being the ascertainment of the

land subject matter of the declaration with definitive certainty so that a surveyor

taking the record of proceedings can produce a plan showing accurately the

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