OLUFOSOYE & ORS. V. OLORUNFEMI

• Pages: 21-44

OLUFOSOYE & ORS. V. OLORUNFEMI

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OLUFOSOYE & ORS. V. OLORUNFEMI

1.

CHIEF ADEBAYO BASHORUN OLUFOSOYE

2.

ABUDU AKINTUJOYE

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3. OYEGUNADE ADETOKUNBOH

APPELLANTS

(For themselves and on behalf of

LODUTI and AJAKA Family)

V

JOHNSON 0. OLORUNFEMI

RESPONDENT

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



SUIT NO. SC191/1985

SUPREME COURT OF NIGERIA

NNAMANI,

J.S.C.

KARIBI-WHYTE,

J.S.C.

OPUTA,

J.S.C.

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AGBAJE,

J.S.C.

WALT,

J.S.C.

13th January, 1989

Civil Procedure - Order of non-suit - Justiceable circumstances - Concurrent findings -

Effect of

Evidence - Evaluation by Court of Appeal.

Land Law - Declaration of title to land - Trespass - Undefined boundary

Tort - Trespass to land - Damages - Perpetual injunction

ISSUES:

1.

Whether a party can successfully maintain an action for a declaration of title to

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land, where he has not established the precise boundaries of the land in dispute.

2.

What is the policy of the Supreme Court as regards concurrent findings of fact

arrived at by the courts below.

3.

Under what circumstances would the Court of Appeal be justified in evaluating

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the evidence and drawing its own conclusions from the facts before it.

4.

When will it be necessary in the interest of justice, for a court to enter a non-suit.

5.

Under what circumstances would the court grant title to land to a party, where

the party can only prove title to part of the land being claimed.

FACTS:

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The plaintiff/appellant sued the defendant/respondent in the High Court of Ondo

State claiming

inter alia

a declaration of title under customary law and a perpetual

injunction restraining the defendants from committing further acts of trespass on the

land in dispute.

After considering the pleadings and the evidence adduced in support of the plain-

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tiffs/appellants claims, the trial court held that the plaintiffs were not entitled to a dec-

laration as regards any portion of land in dispute since the land had already been

alienated by their family.

Furthermore the trial court held that since the land in question lacked defined

boundaries the plaintiffs/appellants action could not succeed.

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NIGERIAN SUPREME COURT CASES

[1989] 1 N.S.C.C.

The appellants being aggrieved appealed to the Court of Appeal complaining that

the trial Judge did not make findings of fact on all the issues joined and that the land

being claimed by them had precise boundaries.

The Court of Appeal dismissed the appellants grounds of appeal in their entirety,

stating that the land in dispute was imprecise in nature and therefore the appellants

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claim must fail. The Appeal Court further rejected the contention that the trial court

did not make findings of fact on all issues joined.

The appellants further appealed to the Supreme Court contending that both the

trial Court and the Court of Appeal were wrong in dismissing their claims based on

the fact that the land in dispute had no precise boundaries. The appellants main-

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tained that it would be incorrect to say that the identity of the land in dispute and its

boundaries were not clear, since a plan had been pleaded and tendered in evidence.

The respondents submitted that both the trial court and the Court of Appeal were

right in their decisions and as such the Supreme Court was faced with concurrent

findings which should not be disturbed except in exceptional cases.

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HELD:

1

That the first duty of a plaintiff claiming from the court a declaration of title to

land is to show clearly the area of land to which his claim relates. This duty

imposed on the plaintiff can either be discharged by describing the land with

such particularity that a survey map maybe drawn up from his description or the

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plaintiff may produce an

accurate

plan of the land showing precise boundaries.

Where the plaintiff fails to clear this hurdle he cannot successfully maintain his

action for a declaration of title to land and his claim will be dismissed. In the

instant appeal the appellants failed to define the precise boundaries of the land

being claimed and consequently the claim should have been dismissed but no

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findings of fact were made by the trial court on the issues of title and as such

the two court's below should have entered a non- suit on behalf of the appellants.

2.

The concurrent findings of fact of the two courts below are not to be highly

disturbed unless there has been some obvious miscarriage of justice or there

has been a violation of some principle of law or procedure. This policy of the

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Supreme Court is predicated on the fact that the Court of first instance evaluated

the evidence, exercised its right to believe or disbelieve witnesses, and then

finally the trial court would arrive at its decision. Where this decision is confirmed

by the Court of Appeal then an appellant would be confronted with a difficult

task and as such the Supreme Court will not as a matter of policy interfere with

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those findings of fact made unless there has been a miscarriage of justice

occasioned by the appellant.

3

That where the trial court makes no findings of fact and there is no issue raised

as to the credibility of the witnesses who testified for the opposing parties, a

Court of Appeal will be justified in evaluating the evidence before it and drawing

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its own conclusions and inferences from proved or admitted facts.

The Court of Appeal may then proceed to decide the case accordingly on the

merits.

But where both the trial court and the Court of Appeal fail to evaluate the evidence

and make findings on relevant issues there cannot be said to be any concurrent

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findings because the findings do not exist.

4.

That it is the essence of justice and fairness that cases are decided on their

merits, consequently where a Judge fails to evaluate and consider all the issues

arising between the parties before reaching his decision it would be unjust to

dismiss a plaintiffs action due to the failure of the Judge in the exercise of his

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duties. The correct and just order to be made in such a situation is for the court

to enter a non-suit giving the plaintiff a chance to relitigate his claim. Justice also

demands for a non-suit to be entered, where the plaintiff is unable to prove his

whole case, and it would be wrong to dismiss his case in its entirety. In the