Chief Adebayo Bashorun Olufosoye & Ors. V. Johnson O. Olorunfemi (1989)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C. 

The Plaintiffs/Appellants claimed in the Court of first instance the following:-

1. “A declaration of title under Native Law and Custom to all that piece or parcel of land situate lying and being at Oke Obara, along Ondo/Akure Road, Ondo, which is more particularly shown and verged Red in plan No. JFO 6642 ……..
2. N1,000.00 being general damages for trespass.
3. Perpetual injunction restraining the Defendant, his servants, agents and privies from committing further acts of trespass on the said land.”

Pleadings and plans were ordered, filed and duly exchanged. Either party in the course of the proceedings amended its original pleading and the case was ultimately fought on the Amended Statement of Claim and the Amended Statement of Defence. After due trial on relevant and available evidence Afonja, J. of the Ondo State High Court dismissed the plaintiffs’ claims as contained in the writ and their pleadings.

Dissatisfied and aggrieved the Plaintiffs appealed, to the Court of Appeal Benin Division, against the said judgment of Afonja, J. In a lead judgment delivered by Ete, J.C.A., (in which Omoigberai Eboh and Okagbue, JJ .C.A. concurred), the Court of Appeal upheld the judgment of the trial court and dismissed in its entirety the appeal of the Plaintiffs. The present appeal to this Court is from that judgment of the Court of Appeal.

The Plaintiffs therefore lost in the two Courts below. From a long line of cases, it is clearly evident that it is the policy of this Court not to interfere with the concurrent findings of the two courts below. This policy is predicated on, and presupposes that, the court of first instance evaluated the evidence, exercised its right to believe or disbelieve witnesses, and then finally arrived at specific findings on the issues of fact arising from the pleadings and evidence as presented to the court for resolution. When that had been done and the Court of Appeal confirms the findings of the trial court, then an appellant is confronted with a rather uphill task. There again, such an appellant will be required to show either that the findings were perverse thus leading to an obvious miscarriage of justice or that there was a violation of some principle of law or procedure:- Enang v. Adu (1981) 11-12 S.C. 25 at p.42: Okagbue v. Romaine ( 1982)5 S.C. 133 at pp.170 and 171; Lokoyi v. Olojo (1983) 8 S.C. 61 at p.68; Ojomu v. Ajao (1983) 9 S.C. 23 at p.53.

Where, however, the trial court made no findings of its own and there is no issue of credibility of the witnesses who testified for the opposing parties, a Court of Appeal will be justified in evaluating the evidence and drawing its own conclusions and inferences from proved or admitted facts, and then deciding the case accordingly. But where both the trial court and the Court of Appeal failed to thus evaluate the evidence and make findings on relevant issues, there one cannot talk of concurrent findings simply because such findings do not exist. And this is the difficulty confronting the parties in this appeal – there were no findings on the issues of title and acts of possession and ownership.

The Plaintiffs) Appellants claimed a declaration of title, damages for trespass and injunction. They pleaded their root of title and relied on their traditional history and descent from their ancestor Jilalu from whom they inherited the land. They pleaded various acts of ownership and possession including grants and sales of portions of the land in dispute to the C.M.S. and Muslim Communities, sales to G.O. Akinfolarin, Ekemode, Roger, Awosika and Bishop Olufosoye etc. The Appellants’ complaint in the Court of Appeal and also before this court was, and is, that the trial court failed to evaluate the evidence and that the Court of Appeal should have done just that and that if that were done there would have been judgment entered in their favour.

This leads naturally to a cool, careful and dispassionate consideration of the 2nd Issue for Determination as formulated by the Appellants in their Brief of Argument:-

Issue No.2.

“Whether the grounds of appeal not considered by the Court of Appeal were material for an effective determination of the issue before it, and whether if considered, the grounds would have had any profound effect on the Final decision”

The Appellants’ Brief then summarised the matters on which issues were joined by the parties as per their pleadings as follows:

“(1) Whether the plaintiffs or the Defendant or his predecessor in title sold land or granted leases as claimed in paragraph 14 of the Amended Statement of Claim and contradicted in paragraphs 14 and 15 of the Amended Statement of Defence.

(2) Whether or not Loduti and Ajaka family established its radical title as based on traditional evidence;

(3) Whether or not Loduti and Ajaka family established ownership of the land in dispute by the exercise of acts tantamount to ownership like selling and leasing parts of the land in dispute as pleaded in paragraph 14 of the Amended Statement of Claim;

(4) Whether or not the Defendants has been trespassing on the land in dispute by leasing and selling parts of the land to strangers as claimed in paragraph 15 of the Amended Statement of Claim

(5) What effect Exhibits “F’ and “G” have on the Plaintiffs’ claim in relation to the land in dispute or part thereof;

(6) Whether or not the plaintiffs proved possession in relation to the land in dispute and were therefore entitled to sue for trespass

(7) Whether or not Exhibits “D” “E” and “H” established the radical title claimed by the Defendant in view of the defects in them”.

The above issues raised in the Appellants’ Brief is a fair and accurate summary of the issues of fact presented for resolution to the two courts below. There is also another issue no less important – the precise extent, limit and accurate boundaries of the land designated by the Plaintiffs as “the land in dispute.”

I will leave the issue of precise boundaries to be considered later on in this judgment. That issue apart, there were the other issues of the parties’ roots of title, of the accuracy or otherwise of the Plaintiffs’ traditional history, of the Plaintiffs’ acts of ownership and acts of possession. There was the vital issue of the various grants alleged made by the Plaintiffs to various people and organisations. Were the Plaintiffs entitled to make those grants What will be the legal position of those grantees Those are issues that will very much depend on the resolution of the main issue of whether, or not, radical title resides in the Plaintiffs. Both parties pleaded acts of possession. Two parties whose claims were adverse cannot be legally in possession of the same piece of land. No. The possession of one of them must, due to the adverse nature of their claims be adjudged an act of trespass.

The above are issues which may very much, and very well, depend on the credibility of the witnesses who testified before the trial court. That is why it is incumbent on a trial court to make up its mind on the evidence led and determine each issue of fact one way or another by making a specific finding on each such issue of fact. It is expected that learned counsel in our trial courts should endeavour to highlight the various issues of fact in the case and urge the trial judges to find one way or another on each issue. A general submission urging the court “to disbelieve the plaintiff and his witnesses” is not enough. The evidence material and relevant should be related to each issue and then the court should further be urged to find for or against the party on such issue. I agree with and adopt the dicta of Viscount Simonds in Benmax v. Austin Motor Co. Ltd. (1955) A.C. 370 at p.375: (1955) 1 All E. R. 326 at p.327 and 328 that:-

A judge sitting without a jury would fall far short of his duty if he did not first find the facts and then draw from them the inference of fact”

There is a duty in a trial court to receive all available relevant evidence on an issue. This is perception of evidence. After that there is another duty to weigh that evidence in the con of the surrounding circumstances of the case. This is evaluation of evidence. A finding of fact will entail both perception and evaluation. But very often in actual practice it is difficult to say when perception ends and evaluation begins.

This naturally leads me on to the submission of learned counsel for the Plaintiffs/Appellants in his Brief that:-

“It is submitted that failure by the learned Justices of the Court of Appeal to assume the role of the trial judge in properly evaluating the evidence in respect of the above issues which were joined after the trial judge had failed to do so, caused a great miscarriage of justice as the issues were never properly considered and determined by both courts.”

Because of the above submission and considering the rather restricted and circumscribed position of an appellate court with regard to issues of fact and findings of fact, the court decided to reconvene after adjourning for judgment, and then requested learned counsel on both sides to address it further on whether or not the proper Order in this appeal should be a Non-Suit During that address, Mr. Adegbesan for the Plaintiffs/Appellants submitted that on the printed record this Court cannot enter judgment either for the Plaintiffs/Appellants or for the Defendant/Respondent. The issue of radical title was not resolved either way by the two courts below. The trial court, continued the submission, again made no findings as to the acts of possession pleaded by either side. Mr. Adegbesan also submitted that the Plaintiffs did not fail in toto. Their only headache was with the issue of precise boundaries. If the Plaintiffs case is dismissed that will foreclose the right of the Plaintiffs and their grantees to regularise any deficiencies in the presentation of the Plaintiffs’ case, in the overall interest of justice. But an Order for Non-Suit will not entail such a foreclosure.

Chief Obiyemi for the Defendant/Respondent submitted that a non-suit is by itself a harsh, oppressive and irregular Order against the Defendant.” This is because, (the submission continued), the law is that whoever alleges must prove his allegation and failure to discharge that onus has a consequence which is dismissal. Chief Obiyemi, however, conceded that a “Non-Suit is usually considered where a plaintiff has not failed in toto.” Then, it was again conceded, “the dismissal will rob such a plaintiff of his right to re-litigate while a Non Suit will not.” Chief Obiyemi rounded up his submission by asserting that in this case the Plaintiffs failed completely. They did not establish two of their four boundaries, and their survey plans Exh. A and B made the confusion worse confounded. The court then drew Chief Obiyemi’s attention to p.169 Lines 10-20 where the court of first instance stated the law:-

“Admittedly, it is settled law that in a claim for a declaration of title, a declaration of title of a similar area within the larger area may be made by the trial court, so long as the lesser area is properly defined and proved to the satisfaction of the court….”

One of the complaints of the learned trial judge was that the Appellants included in their plan Exs. A and B areas they alleged they sold or granted to third parties within “the land in dispute.”

Now two questions arise namely:-

1. Could the Court of Appeal and can this Court on the printed record declare either the Plaintiffs or the Defendant owners or owner of the land in dispute
2. When will it be necessary in the interest of justice to order a Non Suit

I will take question No.1 above first. There are very, very many cases dealing with the attitude and proper role of appellate Courts towards issues of fact and findings of fact. One may have to recapitulate the main strands in those decisions relevant to issues raised in this appeal.

1. Where a question of fact has been tried by a Judge and there is no question of any misdirection of himself by the trial judge an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial court’s conclusion – see Watt (or Thomas) v. Thomas (1947) 1 All E.R. 582 at p.584: Lawal Buraimo Fatoyinbo & Ors. v. Selatu Abike Williams (1956) 1 F.S.C. 87.

I have italicised “conclusion” as used above to show that there is a distinction between a findings of fact and conclusions that could possibly be drawn from those findings.

2. A finding of a specific fact invariably involves the issue of the credibility of opposing witnesses. There is therefore a universal reluctance by appellate courts to reject a finding of specific fact based on the credibility of the witnesses who testified before the trial court, witnesses, whom the Appellate court neither saw nor heard. Kuma v. Kuma 5 W.A.C.A. 4 at p.9.
3. When the sole question is the proper inference or the proper conclusion to be drawn from specific facts, from facts as found; there and then, an appellate court is in as good a position as the trial court to draw the necessary inference and there also, an appellate court should form its own independent opinion having given due weight to the opinion of the trial judge. Benmax v. Austine Motor Co. Ltd. supra Sockna Mormodu Allie & ors. v. Ahmed Alhadi 13 W.A.C.A. 320 at p.321 per Lord Porter.

There is no need considering other cases dealing with this aspect of our law as it is obvious from the record of proceedings that the trial court made no findings as complained of in Issue No.2 in Appellants’ Brief.

Now where there was no finding on several specific issues of fact by the trial court, (just as happened in the case now on appeal) – the question there is, what happens The West African Court of Appeal in 1932 dealt with such a situation in Chief Kweku Assampong v. Kweku Amuaku & Ors. (1932) 1 W.A.C.A. 192 At p.197 the court observed:

“This is a question of fact, and as I have already mentioned the trial judge omitted to record any finding upon the point. If it were practicable I consider the proper course would be to send this case back to him to do so. But he has finally retired from the service and such a reference would be abortive……”

From the above it is clear that it is only the trial court that has the power to make findings on specific facts especially, as usually is the case, when such findings will involve the credibility of opposing witnesses and their conflicting testimonies. In any event an admitted fact is not a fact in issue. It is only where facts are in dispute that they are said to be in issue: Ehimare & ano. v. Okaka Emhonyon (1985) 1 N.W.L.R. (Part 2) 177 at p.183. Issues are decided by and in the pleadings and pleadings deal mainly with facts. This Court in Onyekaonwu & Ors. v. Ekwubiri and Ors. (1966) 1 All N.L.R. 32 at p.35 observed inter alia:-

“….There is also a claim for trespass. The rule is that the person in possession can maintain trespass against anyone who cannot show a better title. The Defendants had the duty to prove that they were entitled to go into possession, but there is no finding that they were. The law was, with respect, misunderstood and misapplied. It is not a case in which we can undertake to make the findings of fact ourselves…….. There must be a retrial………” (italics mine).

In Onyekaonwu’s case above the appeal was allowed and a retrial ordered. Also in Otekhagua Ozibe & 4 ors. v. Chief Ile Aigbe & 20rs. (1977) 7 S.C. 1 at pp.10-11 this court held:

“1. That several issues were raised in the pleadings that required to be resolved (as was done in this case)

2. That the learned trial judge failed in his duty as judge and jury to make any findings of fact and resolve these issues (as happened in the case now on appeal).
3. These issues were not resolved by the mere acceptance of the story told by the plaintiffs and their witnesses whose evidence conflict with the pleadings and contradict themselves on material points.
4. In the circumstances, a retrial would be ordered:’

In Ozibe’s case supra this Court allowed the appeal and ordered a retrial mainly on the ground that there was a failure by the trial court to make findings of fact and thus resolve the issues that arose from the pleadings of the parties. It is trite law that an appellate court cannot undertake, on the printed record, to make findings of fact and thus resolve the conflicting claims of the contending parties without encroaching dangerously on the preserve of the court of first instance which saw the witnesses, heard them testify, watched their demean our and was thus in vantage position to believe or disbelieve and then make appropriate findings of fact.

Having arrived at this point, the stage is now set to consider the second question – when will it be necessary in the interest of justice to order a non suit Adjudication in our courts is our human attempt, (however imperfect), circumscribed as it is by our human limitations, to do justice between the parties before the court. It is of the essence of justice and fairness that cases are decided on their merits. This imposes a duty on the trial judge to consider all the issues arising between the parties before deciding for or against any such party. When a trial court fails in this duty he has merely decided half the case and not the whole case: From the several cases I considered earlier on when a trial judge fails in his duty to make appropriate findings on all the issues of fact, an appellate court usually orders retrial. A non-suit produces the same effect. The plaintiff is thereby allowed to relitigate the issues in controversy. Broadly speaking therefore a non suit is a termination of an action which did not adjudicate all relevant issues on the merit, as where a plaintiff was unable to prove his whole case and it will be unjust to dismiss such case in its entirety or where there was a failure by the trial judge to make proper and specific findings and an appellate court can neither do the same on the printed evidence, there a rehearing or a non suit depending on the circumstances of the particular case, may be ordered:- Awote v. Owodunni (No.2) (1987) 2 N.W.L.R. (Pt.57) 366 at p.375. Chief Obiyemi described a non suit as a “a harsh, oppressive and irregular Order against the defendant”. This is quite a staggering and substantial submission to make. Our Rules of court specifically provided for an Order of Non Suit:-

“The court may……..non suit the plaintiff, where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the court.”

During the address on whether Non Suit will be the appropriate Order in this appeal, both Mr. Adegbesan and Chief Obiyemi each conceded that the trial court made no findings in his favour. In other words on the issue of title or trespass neither party emerged a winner. Neither was therefore entitled to the judgment of the court. It is exactly in such a situation that the Rules permit the court to enter a non suit. The only ridder to the Rule provided by Order 26 Rule 3 of the Rules in the Northern States and by various judicial decisions of this Court is that before such order is made the court will first give the parties the opportunity of being heard on the point” see Elemeny Ikoro v. Safrap (Nig.) Ltd. (1977) 2 S.C. 123 at p.127: Craig v. Craig (1966) 1 All N.L.R. 173 at p.177, (1967) N.M.L.R. 52 at p.55: Aigbe v. Edokpolor (1977) 2 S.C. 1 at p.17: Omoregbe v. Lawani (1980) 3-4S.C. 108at p.1I6. In the instant appeal both parties were asked and did address the court fully on the issue of the Order of Non Suit.

One cannot therefore agree with Chief Obiyemi that an order allowed by the Rules and in conformity with the surrounding circumstances of this case can ever be described as “harsh, oppressive and irregular”. There is no gainsaying it that an order for a non suit means giving the Plaintiff a second chance to prove his case. Normally and generally the courts do not favour this. But each case has to be considered in its peculiar setting. In this case a dismissal will wrong the Plaintiffs/Appellants and their grantees and vendees. I see no wrong that a non suit or a rehearing will inflict on the Defendant/Respondent except to take away from him an empty victory won, not on any findings of fact in his favour, not on the merits of his case, not on the true bearing of the law on the rights of the parties but by a slip or mistake on the part of the trial judge in concentrating wholly on the issue of boundaries and ignoring other equally relevant issues of title and possession which also called for a resolution. In deciding to order a non suit or a retrial the court has to see to it that no party is wronged. In this case it will be in the interest of both parties that their claims to the ownership of the land in dispute are properly investigated and appropriate findings made. This will do justice to the parties and adjudicative justice requires that, once evidence has been concluded in a case, the trial judge should come to a conclusion on the facts by making specific findings on specific issues. It is the sum total of those findings that will dictate whether he should give judgment for the plaintiff or for the defendant or enter a non suit. The question raised in Issue No.2 in the Appellants’ brief will be answered in favour of the Appellants. All the grounds urged under Issue No.2 thus succeed.

Can this court give judgment for the Plaintiffs/Appellants I guess not. During his address on the 2nd November, 1988 Mr. Adegbesan for the Appellants conceded that a non suit will be the appropriate order in this case. The failure of the trial court to make any findings on the traditional history of the Plaintiffs and on their acts of ownership and possession leaves this court with no foundation on which to posit a declaration in favour of the Plaintiffs/Appellants. This is Plaintiffs’ headache No.1.

There is another hurdle equally important – precise boundaries.

Issue No.1 as formulated in the Appellants’ Brief deals with the boundaries of the land in dispute, and is as follows:-

“Whether, having regard to the pleadings and the evidence adduced at the court below, the land in dispute could be said to be undefined, unascertained and equivocal.”

I think it is an elementary requirement of our land law that the first duty of any plaintiff claiming from the court a declaration of title to land is to show clearly the area of land to which his claim relates:- Akinola Baruwa v. Ogunshola (1938) 4 W.A.C.A. 195. This duty a plaintiff can discharge, either by describing the land with such particularity that a surveyor can from his description produce an accurate plan of the land:- Kwadzo v. Adjei (1944) 10 W.A.C.A. 274 or, by himself producing an accurate plan of the land showing precise boundaries. If the plan is inaccurate in the sense that the boundaries are imprecise or that the oral evidence does not tally with the details appearing on the plan, then the trial court will be justified in regarding such a plan as vague and unsatisfactory and again justified in refusing to find a declaration of title on such a plan: Udekwe Amata v. Udogu Modekwe & Ors. (1954) 14 W.A.C.A. 580. The reason for insisting on accurate plans is simply to enable the parties and other persons claiming through them to know precisely the area of land to which the judgment and orders relate:- Maberi v. Alade (1987) 2 N.W.L.R. (Part 55) 101 at p.106. Enforcement of a judgment and order of injunction based on an inaccurate plan will create difficulties, untold difficulties. Where parties own land abutting a common boundary that common boundary will be shown with particularity and precision: Okorie & Ors. v. Udom & Ors. (1960) 5 F.S.C. 162 at p.166: Udofia & anor. v. Afia & ors. Andy v. Akpabio & ors. (1940) 6 W.A.C.A. 216. Another feature of our land law which has to be kept in view while considering Issue No.1 above is that where a party claims a specific area of land and can only prove title to a part of that area of land or where the defendant concedes part of the land claimed, the court can grant the plaintiff title to the area proved or conceded but if; and only if, that area is definite and can be easily hatched out of and excised from the total area claimed, see Abudu Karimu v. Daniel Fajube (1968) N.M.L.R. 151 and Anukwua & ors. v. Ohia & ors. (1986) 5 N.W.L.R. (Pt.40) 150 at p.161. Otherwise the declaration may be rightly refused.

One final preliminary point that I will like to stress, before considering the issue of boundaries in this appeal, is that boundaries of a land in dispute are facts to be established by relevant evidence and where a trial court has made specific findings on that evidence the attitude and scope and limit of interference with those finding will be governed and dictated by the general rules governing findings of fact by trial courts:- Okonkwo v. Adigwu (1985) 1 N.W.L.R. (Pt.4) 694 at p.699.

I will now proceed to consider Issue No.1 as formulated by the Plaintiffs/Appellants against the background of the various decisions of this Court on boundaries which I have stated above. In paragraph 3 of the Plaintiffs/Appellants Amended Statement of Claim the land in dispute is stated to be verged red in Plan No. JFO 6642 drawn by J.F. Ososami Licensed Surveyor. This plan was tendered in evidence as Ex. A. In Exh. A appear so many other areas obviously not belonging to the Plaintiffs viz:-

(i) Land of Ministry of Works and Transport

(ii) Moslem Cemetery

(iii) C.M.S. Cemetery

(iv) Bishop Philips Memorial Primary School

(v) Land of Bishop Olufosoye

It may well be that these areas were granted, sold or conveyed to their present owners by the Plaintiffs/Respondents but the fact remains that after divesting themselves of title to these areas of land they ceased to be the land of the plaintiffs. That alone is not sufficient to destroy the plaintiffs’ case Karimu v. Fajube & Ors. Supra. What is even worse is that no attempt was made in Ex. A to delineate the areas sold or granted as pleaded in paragraph 14 of the Amended Statement of Claim. It is thus not possible for any one to excise from the land verged Red in Ex. A the lands sold or conveyed by the plaintiffs to various people. Also in his evidence at p.111 lines 14-16 the Plaintiff, Abudu Akintujoye, deposed under cross-examination as follows:-

“The land on which the Ministry of Works and Housing is belonged partly to our farmily and partly to Idoko family.”

This is not reflected in Ex.A. The impression one gathers from Ex. A is that the entire areas occupied by the Ministry of Works lies inside the land in dispute. Again at p.111 lines 27-29 the 1st Plaintiff testified in Cross-examination:-

“……the parcel of land conveyed by the Idoko family to Chief Sasere Akinkugbe was not part of the land in dispute.”

If that parcel of land is the portion verged green in Defendant’s plan Ex.C (and there is every likelihood that it is, as both quoted similar feature as Ijapadeji Stream, Saw-mill, and land of Ministry of Works) then it will be utterly impossible to grant any declaration of title based on a plan as imprecise, as vague and as inaccurate as Ex. A.

Again the 2nd Plaintiff witness Adeyeye Akinsete in his evidence in Chief at p.119 lines 9 to 13 stated:

“South of our own land is also part of the Idoko family land separated from our land by the Ajapadiyeye stream. The land between Akure/Ondo road and Esungbin Stream does not belong to Oke Idoko family but to our family.”

The Ajapadijeye stream is shown on the Plaintiffs’ plan Ex.A. But the land on both sides of that stream is shown as belonging to the Plaintiffs. The land on which the Ministry of Works and Housing is belonged partly to our family and partly to Idoko family.”

The Ajapadijeye stream is shown on the Plaintiffs’ plan Ex.A. But the land on both sides of that stream is shown as belonging to the Plaintiffs. The southern boundary as described by Akinsete, p.w.2 is thus, at variance with the plan Ex.A.

It is thus clear that the evidence and oral description of the size and extent (not merely and solely location) of the land in dispute as given by Akintujoye (P.W.1) and Akinsete P.W.2 violently conflict with the Plaintiffs plan Ex.A. Confronted with this conflict the learned trial judge at p.169 observed:

“It is not the duty of the court to excise from a larger area of land the portion or portions of land to which the Plaintiffs are claiming title. A claim for title to land must not only be specific but must relate to an area sufficiently defined to enable the court “pin point” the area claimed otherwise the court will not grant a declaration of title ….. I will consider the omission to define the area of the land in dispute to be fatal to the plaintiffs’ case.”

I think the above is a correct statement of the law and I am in total agreement with the learned trial judge. The Court of Appeal was of the view that the consideration of the other issues in the case “must be predicated on the premises that the land in dispute between the parties is defined, ascertained and unequivocal.”

The court then continued at p.286 lines 27-30:-

“In the end he (the learned trial judge) still had to come back to the nagging question of the imprecise nature of the land in dispute between the parties. It was on this account that he dismissed the plaintiffs’ claim and in my opinion he was right to do so. “(italics ours)”.

I also agree with the Court of Appeal that no declaration of title can be made where the land in dispute is not properly defined easily ascertainable with precise boundaries. But the trial court’s failure to make findings on the issue of title and possession would have indicated to the Court of Appeal that justice would be met by a non suit or a retrial.

The Plaintiffs/Appellants in this case claimed a declaration, damages for trespass and an injunction. Such a claim should be tied on to a definite and specific area of land so that any enuring judgment for the plaintiffs may inform the defendants what the opinion of the court is as to the limits of their rights and not expose them in the exercise of such rights to the consequences of violating an injunction based on a plan like Ex. A which not containing precise boundaries leaves the land in dispute vague and imprecise. It is not for the Defendant/Respondent to find out what portions of Ex.A belongs to the Plaintiffs/Appellants and what portions do not. That is the first hurdle a claimant to land will clear i.e. to establish the precise area he is claiming.

The Appellants failed to clear this hurdle and normally their appeal should have been dismissed but for the fact that no findings were made on the issues of title based on the traditional evidence of the Plaintiffs and conveyance pleaded and testified to by the Defendant nor was any findings made on the question of possession claimed by both parties. It is only for the above reason that justice demands that both parties be given another chance to establish their claims.

In the final result and for all the reasons given above the trial court should have entered a non suit. This it did not do. The Court of Appeal should also have entered a non suit. This the Court of Appeal again did not do. I will allow this appeal and enter a non suit. I will make no orders as to costs.

NNAMANI, J.S.C.: I had the advantage of reading in draft the judgment just delivered by my learned brother OPUTA, J.S. C. I agree entirely with his reasoning and conclusions.

It cannot be said that the plaintiffs have failed in their case in toto. The main problem was of course that apart from filing their plan which showed the land in dispute, the plaintiffs by the evidence of the P.W.2 appeared to have included a land belonging to some other party in the area they were claiming. It would have been impossible in the circumstances for them to have title.

I agree with my learned brother that the learned trial Judge was wrong in dismissing the plaintiffs’ claims, one of the grounds being that they claimed the areas which they had previously allocated to various persons. It is also clear from the case that the learned trial Judge did not resolve the evidence of traditional history or acts of possession raised by both sides.

I think too that the justice of the case demands a non-suit rather than a dismissal of the plaintiffs’ case. I abide by all the orders made in my learned brother’s Judgment.

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SC.191/1985