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CaseLaw

Otanioku V. Alli (1977) CLR 11(d) (SC)

Judgement delivered on November 18th 1977

Brief

  • Declaration of title to land
  • Injunction & damages for trespass
  • Identity of land claimed

Facts

The plaintiff's claim against the defendant is for –

  • 1
    declaration of title to all that piece or parcel of the plaintiff's land at Idi-Iroko Olomoyoyo on the Lagos/Ibadan road;
  • 2
    injunction to restrain the defendants, his servants and agents from further trespassing on the said land:
  • 3
    £200.00 damages for alleged trespass. Annual rental value of £30.00."

Pursuant to an order for pleadings made by the High Court of the former West¬ern State he filed a statement of claim in paragraph 3 of which he averred that the land in dispute was at Idi-Iroko Olomoyoyo on the Lagos/Ibadan road. The defendant/appellant, in paragraph 2 of his statement of defence denied paragraphs 2 to 16 of the plaintiff's statement of claim and put the plaintiff to the strict proof of all allegations therein contained. The respondent made two applications to amend the original statement of claim. In the second application he included a prayer to amend the writ of summons and he was duly granted leave to file and serve an amended writ of summons and statement of claim within five days from January 31, 1972.

It is apparent from the record of proceedings that although this amended statement of claim was filed, an amended writ of summons was never filed as ordered ay the High Court. In the face of well-established authority, therefore, the statement of claim in the suit superseded the original writ of summons. After trial of the action in the High Court, the learned trial Judge delivered a brief judgment in which he concluded that there was no evidence before him to support the plaintiffs claims and dismissed the action. The Court of Appeal of the Western State of Nigeria (before its abolition) to which the plaintiff/respondent appealed, allowed his appeal, set aside the judgment and orders of the High Court, and entered judgment in his favour, declaring him to be the owner of the land at Podo and restraining the defendant/respondent from entering upon the land. The dismissal by the High Court of the claim for trespass against the defendant/appel¬lant was, however, affirmed by the Court of Appeal.

The defendant/appellant then appealed to this Court against the decision of the Court of Appeal.

Issues

Whether an action can be maintained where there is uncertainty, both from the...

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