ELABANJO AND ANOR. V. DARLINGTON

• Pages: 19-22

ELABANJO AND ANOR. V. DARLINGTON



19

the relief sought granted, there would have been nothing to prevent the respond-

ents soon thereafter from summoning a meeting of the Society and passing a

proper resolution ratifying the amendments, the subject matter of the complaint.

In a recent case the Court of Appeal in England in reversing Pennycuick J. held

5





that even in the absence of an Bxpress power to alter the rules governing a club,

such power can be implied from a favourable response by a majority of members

by their acquiescence in a change of constitution. See

Abbatt and Others v. Treas-

ury Solicitor and Others

[1969] 1 W.L.R. 1575.

In refusing the relief sought the learned trial Judge had recourse to the warn-

10





ing in the Privy Council judgment in

Ikebife Ibeneweka and Others v. Peter Egbu-

na and Another

(1964) 1 W.L.R. 219 delivered by Viscount Radcliffe in which he

said:-

"The general theme of judicial observations has been to the effect that decla-

15





rations are not lightly to be granted. The power should be exercised 'sparing-

ly' with 'great care and jealousy,' with extreme caution, with 'the utmost caution.'

These are indeed counsels of moderation, even though as Lord Dunedin once

observed, such expression affords little guidance for particular cases. Never-

theless, anxious warnings of this character appear to their Lordships to be not

20





so much enunciations of legal principle as administrative cautions issued by

eminent and prudent Judges to their, possible more reckless, successors. After

all, it is doubtful if there is more of principle involved than "the undoubted truth

that the power to grant a declaration should be exercised with a proper sense

of responsibility and a full realisation that judicial pronouncements ought riot

25





to be issued unless there are circumstances that call for their making. Beyond

that there is no legal restriction on the award of a declaration."

In view of the care and caution exercised by the learned trial Judge in conside-

ring the whole of this matter, the appellants have failed to persuade us to hold that

30





his refusal to grant the relief sought was not the result of a proper exercise of his

judicial discretion. In the circumstances, this appeal fails. It is dismissed with costs

to the respondents assessed and fixed at 40 guineas. Order accordingly.

Appeal dismissed.

35

ELABANJO AND ANOR. V. DARLINGTON

40

DAVID TAIWO ELABANJO AND ANOR.



APPELLANTS

V

JOSEPH DARLINGTON



RESPONDENT

SUIT NO. SC 357/1967

45

SUPREME COURT OF NIGERIA

COKER,



J.S.C.

LEWIS,



J.S.C.

MADARIKAN,



J.S.C.

20th February, 1970.

50

Land law -

Trespass - Land - Real issue between panics - Whether land in

dispute was relative to original conveyance of the respective parties - Difficulty

to be solved by causing composite plan to be prepared by expert independent

surveyor.