IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 27TH DAY OF NOVEMBER 1970
ALLI ADEKANBI ....................................................... APPELLANT
ADEBAYO AYORINDE ........................................................... RESPONDENT
BEFORE: Ademola, C.J.N., Lewis, Sowemimo, JJ.S.C.
Declaration-Title to Land-Plaintiff failing to prove exclusive right to land-Mp finding of joint ownership-Whether trial Judge was right in dismissing plaintiff's claim instead of entering a non-suit.
Appeal from the Court of Appeal (West).
(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 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, be fore ordering a non-suit, should give proper consideration to all the issue involved in the making of such an order.
(2) In this case the High Court did not make any finding of joint ownership of the plaintiff and 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. Consequently, not only was the basis upon which the Court of Appeal entered a non-suit erroneous, but there was in fact not shown to have been anything to warrant it and accordingly the decision of the High Court dismissing the plaintiff's claim should not have been upset.
(3) When a dismissal or non-suit had been entered the plaintiff's claim as profounded failed and in those circumstances a defendant is entitled to his costs. Therefore the Court of Appeal was wrong to set aside the order of the High Court of the High Court of 60 guineas costs to the defendant and in its place to order each side to bear its own costs.
(4) As the Court of Appeal was in error in ordering a non-suit the order of costs to the plaintiff in the Court of Appeal could not be sustained.
Appeal allowed; judgment of Court of Appeal set aside: judgment of High Court dismissing plaintiff's claim restored.
Cases referred to:
Azuike Ume and others v. Alfred Ezechi and others (1964) 1 W.L.R. 701.
Dele and Family v. Adelabu and Family (1966) N.M.L.R. 105.
Kojo v. Bonsie (1957) 1 W.L.R. 1227.
Igboji v. Elemeghe SC. 244/66 of 20th June, 1969.
Kodilinye v. Odu (1935) 2 W.A.C.A. 336.
Craig v. Craig (1967) N.M.L.R. 52.
Aderemi v. Joshua Adedire (1966) N.M.L.R. 398.
Appeal from the Court of Appeal (West).
Chief Agbaje for the defendant/respondent/appellant.
Chief Williams for the plaintiff/appellant/respondent.
Lewis, J.S.C. (delivering the judgment of the court):-In suit 4/66 in the Ibadan High Court the plaintiff's writ read-"(1) The plaintiff's claim against the defendant is for:-
(i) Declaration of title to the piece or parcel of land situate, lying and being at Ajimajasan Compound, Agbokojo, Ibadan as will be shown on the plan to be filed with the statement of Claim later.
(ii) £200 general damages for trespass committed on the said land sometimes in 1965.
(iii) Injunction to restrain the defendant, his agents, or servants from committing further acts of trespass on the land.
The annual rental value of the land is £10-0s-0d."
In paragraphs 4, 5 and 11 and 12 of his amended statement of claim the plaintiff pleaded as follows-
"4 The land in dispute is situate at Ajimajasan Compound and is edged Violet in the amended plan CK/28a/66 drawn by Abolade Coker, licensed surveyor and counter-signed by the Surveyor-General on 23-9-66 which is hereby attached to this amended statement of claim.
5. The land in dispute forms part of a large piece of land later known as Ajimajasan Compound, which was acquired by Ajimajasan over 150 years ago.
11. After Ajimajasan's death his remaining land passed on to Ayorinde, popularly known as 'Baba Ologun' the father of the plaintiff.
12 That the land in dispute formed part of the piece of land given by Ayorinde to Fasanya over 40 years ago for the use of his son Yesufu Fasanya."
The defendant denied paragraphs 5, 11 and 12 of the statement of claim and in turn pleaded in paragraphs 4, 8 and 9 of the statement of defence as follows-
"4 The defendant avers that his grandfather Amolegbe Abogunrin acquired the land in dispute and other contiguous land over 200 years ago.
8 The Amolegbe's family have always been in possession of the land in dispute and has used the same as a refuse for over 50 years.
9 The defendant avers that the plaintiff's family did not do anything on the land in dispute or has not laid any claim to the land in dispute until 1965 when he wanted to build a shop on it."
On the 8th of August, 1967, Ayoola, J. in his judgment found that the plaintiff had not made out his claim for a declaration of title and equally had not proved exclusive possession such as to enable him to succeed on an action-for trespass so that failed as did the claim for an injunction which was ancillary to it; he accordingly dismissed the plaintiff's claim with 60 guineas costs to the defendant. The plaintiff appealed to the Court of Appeal of the Western State and before it Chief Williams on his behalf argued only one ground of appeal namely-
"The learned trial Judge erred in law in dismissing the plaintiff's claim for declaration of title instead of entering a non-suit having found that the land in dispute belongs jointly to both families."
The relief sought in the notice of appeal, however, was-
"Setting aside of the judgment of the court below and substitution of judgment for the plaintiff/appellant."
On the 11th of July, 1968, the Western State Court of Appeal allowed the appeal and in the judgment of the court delivered by Ademola, J.A. said-
"The learned trial Judge proceeded therefore to dismiss the plaintiff's claim, as he puts it, 'in its entirety'. The sole question before us is this:-upon the learned trial Judge's own findings of fact, was he right in dismissing the plaintiff's claim?
We think the matter is concluded by authority. In the first place, as the learned trial Judge himself observed, the case before him was not one of joint ownership of the land in dispute. At no time did the parties contest the case on this basis.
The question of joint ownership of the land in dispute was the learned judge's own conclusion.
Not one of the parties had an opportunity of answering the case as appeared to have been found by the learned trial Judge. In such circumstances, justice demands that a non-suit was the most appropriate order to make.
"The cases of Azuike Ume and others v. Alfred Ezechi and others  1 Weekly Law Reports at p. 701 and Dele and Family v. Adelabu and Family (1966) Nigerian Monthly Law Reports at p. 105 clearly are to this effect:................The appeal is allowed. The order of dismissal is set aside and we substitute an order non-suiting the plaintiff of the judgment refusing his claim."
The Court of Appeal went on to order that each party should bear its own costs in the High Court and awarded 70 guineas to the plaintiff/appellant in the Court of Appeal.
The defendant has appealed to this Court against that decision of the Western State Court of Appeal and Chief Agbaje for the defendant has argued a number of grounds of appeal on his behalf. His first point was that the plaintiff's claim asked for 3 items of relief namely, a declaration of title, damages for trespass and an injunction, and all were dismissed by the learned trial Judge. The only point taken before the Court of Appeal by the plaintiff was that the claim for a declaration of title should not have been dismissed but an non-suit should have been entered, yet the Court of Appeal set aside generally the order of Ayoola, J. dismissing the plaintiff's claims and substituted a non-suit.
As there had been no appeal against the order of Ayoola, J. dismissing the claims for trespass and injunction he submitted a non-suit should not have been entered in regard to them. Chief Williams for the plaintiff/respondent before us conceded this point and said that the issue was confined to the question of declaration of title.
So far as the declaration of title was concerned we have shown from the quotation from the judgment of the Court of Appeal that the court clearly thought that Ayoola, J. had made a finding of fact to the effect that there was joint ownership of the land by the plaintiff and defendant, but as that was not what had been claimed it would work hardship on that finding to dismiss the plaintiff's claim for a declaration of title so the Court of Appeal entered a non-suit. We would emphasise first that the case was contested on both sides on the basis that each side was the sole and exclusive owner of the land in dispute and neither side pleaded any question of joint user or ownership. Moreover when we examined the judgment of the learned trial Judge we could not discover any finding that there was joint ownership here. Chief Williams however relied on two passages in the judgment namely, where Ayoola, J. said-
"In view of the conflict and the divergence in the welter of traditional history set up before me, I have to apply the test laid down in Kojo v. Bonsi  1 W.L.R. 1227 by testing each version by reference to the facts in recent years as established by evidence, and by seeing which of the two competing histories is the more probably.
Having done so, I find and hold that neither history is entirely acceptable nor probable: all that reasonably emerges is that both Ajimajasan and Amolegbe settled on the land verged red on exhibit A possibly as partners."
and later where he said-
"It is to be noted however that the failure of the plaintiff to obtain a declaration of title which is a decree of exclusive right to the land in dispute does not mean that the defendant is necessarily the exclusive owner of the disputed land. A land in dispute might not belong to either the plaintiff or to the defendant exclusively it may belong to both of them jointly. In this case, there is no claim for title by the defendant before me; there is equally no claim before me for a declaration that the land in dispute belongs to both sides jointly. The only claim before me is a claim by the plaintiff for declaration of title, trespass and injunction. Whatever decision I give therefore relates only to the claim before me, and nothing more."
The learned trial Judge then went on to refuse the declaration of title as we have stated. Chief Williams submitted to us that on the authority of Ume v. Ezechi  1 W.L.R. 701 a non-suit was the right order to make and just as in Ume v. Ezechi (supra) the Federal Supreme Court was satisfied that there was evidence of a common user so here Ayoola, J. was satisfied of joint ownership.
After carefully examining the passages relied on by Chief William sit is our view that Ayoola, J. did not make any finding as to the joint ownership of the plaintiff and defendant. In the first portion relied on his said-
"All that reasonably emerges is that both Ajimajasan and Amolegbe settled on the land verged red in exhibit A possibly as partners." (Our underlining).
In the second passage relied on he said-
"A land in dispute might not belong to either the plaintiff or to the defendant exclusively it may belong to both of them jointly."
The first passage is clearly conjectural, and it is by no means clear to us whether in the second passage the learned trial Judge was even saying that the land in dispute may (our emphasis) belong to the parties jointly as he began the sentence with the word "a" and not the word "the" and he seems to have been continuing a general statement of legal principle rather than applying it to the facts of the case before him. Certainly we can see no finding of fact therefore by the learned trial Judge and Chief Williams did not draw our attention to any evidence in the record that would have supported such a finding. To our mind therefore Ume v. Ezechi (supra) is clearly distinguishable as there at page 706 Lord Evershed said-
"But the Federal Justices draw attention to another point which their Lordships have regarded as highly significant, namely, to the undoubted fact that there was clear evidence of a considerable degree of common user on the part of members of both families over the disputed area and also to the fact that both families, Achina and Akpo, appear to have been descended from a common ancestor-a fact which, as Taylor, F.J. pointed out, might well explain the common user-illustrated as it was particularly by the facts relating to the Oye market and the Ezeokolo Juju and by the circumstance that the C.M.S. station is now called the 'Achina-Akpo' station. In the circumstances, as Taylor, F.J. pointed out, it might well be that the whole area was, or was in large measure, communal to both families and that the claim of the plaintiffs to the land as exclusive Achina family property had been misconceived.",
So that in that case there was clear evidence of common user whilst in the present case before us the most that we have been shown are tow conjectural statements of the learned trial Judge. It is moreover to be kept in mind that the land in dispute was clearly defined in paragraph 4 of the amended Statement of Claim and whilst this was claimed to be part of a larger area of land owned by the plaintiff on the one side or claimed by the defendant on the other side, there was on Chief Williams' own concession no evidence of common user of the area in dispute. Be that as it may the important thing here to our mind is that there was no finding of common user, as Chief Williams argued, and solely because the learned trial Judge entered into the realm of conjecture the case could not be brought within the principle established by Ume v. Ezechi (supra) where as we have shown there was accepted evidence of a common user.
In Igboji v. Elemeghe SC. 244/66 of the 20th of June, 1969, we said-
"We wish also to observe that in this case the plaintiff had sued for a declaration of title and he clearly must prove that he was entitled to such a decree (see Kodilinye v. Odu  2 W.A.C.A. 336; Ekpo v. Ita 11 N.L.R. 68). 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 established some interests less than absolute over some unspecified portions of land is automatically entitled to a non-suit. In the present case the plaintiff was not found by the learned trial Judge to have an absolute interest to any area, but a limited interest to farm on a defined portion of the area in dispute. 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 ordering a non-suit, should give proper consideration to all the issues involved in the making of such an order. (See Craig v. Craig (1967) N.M.L.R. 52). Indeed, in a case where the plaintiff proves no more than the exercise of some common rights over an unspecified portion of land in respect of which he had claimed a declaration of title, this Court held that the proper order was one of dismissal of his case. (See Aderemi v. Joshua Adedire (1966) N.M.L.R. 398, especially at pp. 402, 403).
We have come to the conclusion that the learned trial Judge in this case rightly decided that the plaintiff's case had failed and rightly dismissed it."
It follows that in our view not only was the basis upon which the Court of Appeal entered a non-suit erroneous, but there was in fact not shown to have been anything to warrant it and accordingly the decision of Ayoola, J. dismissing the plaintiff's claim should not have been upset.
It was argued before us that the effect of dismissing the plaintiff's claim for a declaration of title as against the defendant would be to bar a future action by the plaintiff claiming that the land was held jointly with the defendant, but whether or not such a pleas or res judicata could in such circumstances be validly raised is a matter which would have to be determined by the trial Judge if in fact any such fresh action be commenced and does not arise to be determined at this stage by this Court.
Chief Agbaje finally argued two matters of costs; firstly he argued that the Court of Appeal was wrong to set aside the order of Ayoola, J. of 60 guineas costs to the defendant and in its place order each side to bear its own costs. With this submission we agree as whether in fact a dismissal or a non-suit had been entered the plaintiff's claim as propounded failed and in those circumstances a defendant is entitled to his costs. Secondly, Chief Agbaje argued that as the plaintiff asked for a non-suit in his ground of appeal but in his notice of appeal the relief he sought was a judgment in his favour he should not have been awarded 70 guineas costs. As in our view the Court of Appeal was in error in ordering a non-suit we agree that the order of costs to the plaintiff in the Court of Appeal cannot be sustained.
We therefore set aside the judgment of the Western State Court of Appeal entering a non-suit on the plaintiff's claim together with the orders that the Court of Appeal made as to costs in the High Court and the Court of Appeal and we do order that the judgment of Ayoola, J. dismissing the plaintiff's claims for a declaration of title, damages for trespass and an injunction be restored together with his order of 60 guineas costs to the defendant in the High Court. The defendant is entitled to his costs in the Court of Appeal which we assess at 50 guineas and to his costs in this Court which we assess at 76 guineas.
Appeal allowed: judgment of Court of Appeal set aside: judgment of High Court dismissing plaintiff's claim restored.