Daniel Bassil Vs Chief Lasisi Fajebe (2001) LLJR-SC

Daniel Bassil Vs Chief Lasisi Fajebe (2001)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C

By the time this matter reached this court the main question has been narrowed down to a short one; namely, whether judgment entered for the respondents on their claim for damages for trespass and injunction can be correct in the face of undisputed evidence that the land in dispute was not part of the land conveyed to their predecessor in title by an instrument registered as No. 43 at page 43 in volume 1615 of the Register of Deeds kept in the Lands Registry, Lagos.

The respondents who were plaintiffs in the High Court of Lagos State claimed from the appellants, who were defendants and counter-claimants in that suit, damages for trespass and injunction. Their case was that the land in dispute which was “more particularly and more precisely shown and delineated on the plan accompanying an indenture of Conveyance dated the 20th day of December, 1977, and registered No.8 at page 8 in volume 1674 of the Register of Deeds kept in the Lands Registry office in Lagos and thereon edged RED.”, was part of a large tract of land originally belonging to one Aina Ogundipe, one-time Baale of Ewu and now represented by the families of Olukotun and Ajamogun of Ewu in the District of Ikeja. The said Aina Ogundipe, it was alleged, sold lands of which the land now in dispute was a portion, to one Chief Abraham Akinola as far back as 18th July 1925. The land was “later duly conveyed to him for an estate in fee simple absolute and in possession”. Abraham Akinola, in turn, sometime in 1965 sold portion of the land to the 1st respondent and conveyed it to him by the instrument registered as 8/8/1674 and dated 20th December, 1977. The respondents further alleged that their root of title was not a conveyance registered as No. 43 at page 43 in volume 1615 of the Register of Deeds kept in the Lands Registry Lagos (“Exhibit K”) but was sold according to Yoruba native law and custom by Aina Ogundipe to Abraham Akinola as borne out by purchase receipt dated the 18th of July, 1925. The respondents averred in their pleadings possession of the land in dispute by Akinola since 1925 and by 1st respondent from 1965 until 1977 when 2nd respondent came into joint possession of the land with him on 1st respondent’s invitation. Between November and December 1977 the 1st defendant broke and entered a portion of the land. Hence this action.

The appellants defended the action and raised a counter-claim. The 1st appellant was a managing director of the 2nd appellant. He was sued as having physically entered the land. The 2nd appellant was the company which claimed title to the land. The joint case of the appellants was that their predecessor in title derived title to the land from Ajamogun, Onilude, Onikun families. 2nd appellant had been in uninterrupted possession of the land since June 1971 until the respondents wrongfully ejected it in October, 1977. They relied on title through Chief T. A. Doherty who had leased the land to the 2nd appellant. Chief Doherty himself had derived title to land as to one part by virtue of a Deed of Exchange dated 1st August, 1967 whereby Messrs. Cappa and D’ Alberto Ltd. passed title to him in exchange for another land, and as to another part which is the land in dispute by virtue of a deed of conveyance made to him by the three families dated 11th April, 1953. Cappa and D’ Alberto Ltd., itself had derived title from one Mr. A. S. O. Coker who had purchased the land from the three families and had it conveyed to him by a deed of conveyance dated 17th December, 1951. It was averred that Coker, Cappa and D’ Alberto and Doherty had severally been in continuous and undisturbed possession of the land they bought as was the 2nd appellant of the land in dispute until it was ejected by the respondents.

Balogun, J., who heard the case, in a rather lengthy judgment covering 57 pages, entered judgment for the respondents and dismissed the counterclaim. Notwithstanding the length of the judgment, it is not difficult to summarise the grounds of the decision which cover only 9 pages or so (from pages 254 – 263) of the 57 pages of the judgment.

Balogun, J., proceeded on the footing that the respondents have traced their title to the land directly to one whose title to ownership had been established; that, consequently, the appellants had the burden of showing that their own possession was of such a nature as to oust that of the original owner; and that the appellants and respondents were tracing their root of title to the same family. Having proceeded thus it was inevitable that the trial Judge concluded, as he did, that that family having sold the land to the 1st respondent’s predecessors in title in 1925 the 1st respondent had proved a better title. In the alternative, he held that if he had found that the three families were the owners of the land, he would nevertheless have given judgment for the respondents on the basis of adverse possession of the land by Akinola from 1925.

On the appellants’ appeal to the Court of Appeal, that court proceeded, as the trial judge did, on the footing that both parties claimed from the same root of title and that the party who proved a better title to the land in dispute would succeed. Babalakin, JCA., (as he then was) who gave the leading judgment accorded respect to the view of the trial Judge that “the land in dispute was sold as far back as 1925 to one Akinola, the predecessor in title of the 1st respondent.” Being of the opinion that the findings made by the trial Judge settled the question of the identity of the land in dispute and the facts of possession of the respondents and their predecessors in title he dismissed the appeal of the appellants. Awogu, JCA, and Kalgo, JCA (as he then was) agreed.

Counsel for the appellants on this appeal argued that in several instances that Court of Appeal wrongly affirmed the findings of fact made by the trial Judge namely; that the land in dispute was part of the land sold by Ogundipe to Akinola and that there was an effective sale of family land in 1925. Mr. Molajo, SAN, in the respondent’s brief succinctly identified the two main issues in this appeal as follows:

“1. Whether the land in dispute falls within the parcel of land which was sold by Aina Ogundipe (Baale of Ewu) to the plaintiff’s predecessor in title, Chief Abraham Akinola in 1925 under Yoruba native law and custom.

2. If the answer to issue No.1 is in the affirmative, whether the said sale was valid and effective.”

These were not the only issues, but I am content to start with them since in my opinion they are the issues that first have to be determined for a just resolution of this appeal.

In the leading judgment of the Court of Appeal that court having noted that,

”This appeal is essentially on facts and the learned judge understood what it is all about”, proceeded to hold that the trial Judge resolved the discrepancies about the survey plans. After quoting several findings of fact made by the trial Judge, the Court of Appeal said:

“Thus in the above findings the question of identity of the land in dispute was ascertained and settled; facts of possession of the respondents and their predecessors in title were upheld and that of the appellants were rejected.”

It also held:

“I am satisfied that the findings of facts of the learned trial Judge on the above issues are not perverse but are supported by the evidence adduced in the case.”

Having so held the court below upheld the findings and the decision of the trial Judge.

Appeal to the Court of Appeal from the High Court is by way of rehearing:

03 r.2 Court of Appeal Rules. Such rehearing, however, does not entail retrying the action and taking fresh evidence. It is a rehearing on the record with the attendant duty on the appellate court to evaluate the evidence and draw inferences from primary facts. (See Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt.16) 264). That an appeal turns on the facts does not free the appellate court from discharging this duty. Where the finding of fact turns on credibility of oral evidence the appellate court, acknowledging the advantageous position of the trial court, will not usurp the function of the trial court which is placed in a better position to ascribe credibility to the evidence of witnesses it had seen and heard. Where, however, the finding of fact depends on inferences to be drawn from primary facts, the position is different and the appellate court is in as good a position as the trial court to evaluate the evidence and draw such inferences as it deems appropriate. (See Benmax v. Austin Motor Co. Ltd. (1955) 1 All ER 326,328-329).

Evaluation of evidence involves reviewing and criticising the evidence given and estimating it. That any decision arrived at without a proper or adequate evaluation of the evidence cannot stand is now almost a truism. Evaluating evidence does not stop with assessing the credibility of witnesses, although that, in appropriate cases, is part of the exercise. It extends to a consideration of the totality of the evidence on any issue of fact in the circumstances of each case in order to determine whether the totality of the evidence supports a finding of fact which the party adducing the evidence seeks that the trial court should make. After giving due concession to the advantageous position in which the trial court is in regard to credibility of witnesses, the responsibility of the appellate court to consider the finding of the fact and ensure that it is arrived at after an adequate consideration of the totality of the evidence or whether a reasonable tribunal, properly adverting to the evidence, would make such finding remains where the findings of fact are challenged. When the appellate court comes to a conclusion that the trial Judge did not properly advert to the evidence or give necessary consequence to the evidence given, the appellate court will itself perform that exercise. To do so is not a usurpation of the province of the trial Judge. To fail to do so is an abdication of responsibility.

In this case part of the case put forward by the appellants is that the judgment of the court below is severely flawed by an inadequate consideration of the evidence before it affirmed findings of fact made by the trial Judge. It is appropriate at the outset to appreciate that there is no question of credibility of witnesses here as what was before the trial court on the main issue in this appeal was evidence adduced by the respondents themselves and documentary evidence in form of the instrument of title, Exhibit K, and purchase receipt, Exhibit C, relied on by the respondents, the appellate court was in as much a position as the trial court to evaluate such evidence and draw inferences therefrom. The failure of the Court of Appeal to do so seems to have emanated from an erroneous view that the appeal being on facts it was precluded from such exercise. The value of its findings as concurrent findings of fact is diminished by the deficiency in its evaluation of the evidence relied on by the trial Judge. We should now evaluate the evidence and consider whether the findings of fact confirmed by the court below were justified having regard to the evidence.

The first step in determining the materiality of evidence and the issues of fact that arise in an action is to ascertain what facts were pleaded. In this case, the respondents pleaded in paragraphs 5 and 6 of the Amended Statement of Claim as follows:

“5. The said land is part of a large piece or tract of land originally belonging according to native law and custom to one Aina Ogundipe, one-time Baale of Ewu and now represented by the families of Olukotun and Ajamogun of Ewu in the District of Ikeja aforesaid.

6. The plaintiffs aver that the said lands a portion of which is now in dispute were sold by the said Aina Ogundipe, late Baale of Ewu to one Chief Abraham Akinola as far back as the 18th July, 1925 and later duly conveyed to him for an estate in fee simple absolute and in possession”. (Italics mine)

It is clear from the above, reading the underlined portion together, that the case put up by the respondents at the trial was that the land conveyed to Akinola was the entire land covered by the purchase transaction and that the land in dispute was part of that land. The case now being put forward that the land conveyed to Akinola was not the entire land sold to him was based on an inconsistent averment made by the respondents in paragraph 8(e) of the amended statement of claim thus: “this conveyance which only covered part of the land as per Purchase receipt dated 18th July, 1925, only became necessary for planning purpose of a layout of that section.”

Parties are bound by their pleadings and will not be permitted to set up a case different from what they have pleaded. Parties are permitted to make inconsistent averments. However, it is not the law that parties are permitted to make inconsistent assertions on the same question of fact or adduce inconsistent evidence over one and the same issue. A party who adduces inconsistent evidence over one and the same issue damages his own case unless he can reconcile the apparent inconsistency. In this case the assertion that the land sold in 1925 to Akinola was conveyed to him is not consistent with the assertion that only part was conveyed.

There is clear evidence that is consistent with the facts pleaded in paragraphs 5 and 6 of the amended statement of claim quoted above. The relevant evidence was given by the 5th plaintiff witness who was the son of Abraham Akinola as follows:

“Q: Do you know that the children of Ogundipe made a conveyance to your family in respect of his farmland?

A: That is correct, the children of Ogundipe made a conveyance for my father about the land he bought from their family.

Q: Have you seen the conveyance before?

A: Yes.

Q: Does that conveyance cover all the whole land which your father bought from Ogundipe?

A: Yes, it is part of the land which the children of Ogundipe conveyed to my father, that he (my father), sold a portion to the 1st plaintiff, Chief Lasisi Ishola Fajebe.

Q: Has your father any other land in that area?

A: No. but he had some land at Otta also. I see Exhibit K.

Q: Is that the conveyance made by the children of Ogundipe to your father?

A: I cannot read and write; so I cannot say whether it is or not.

Q: Do you know some of Ogundipe’s children who made that conveyance to your father? Do you know Momodu Ashimi Ajamogun, Samimu Kumi Yese Olukotu?

A: Yes, I know them. Those whom you have just named were the children of Ogundipe who made the conveyance to my father. The conveyance was made to cover the land which my father bought from the Ogundipe family in 1925 and evidence the receipt issued to him in 1925. I have seen the 1925 receipt many times before. I see Exhibit C. I idenify the receipt of 1925. (Emphasis is mine)

The evidence quoted above is specific and direct on the question whether or not the land conveyed to Akinola by the Ogundipe family was the land covered by the 1925 receipt – Exhibit C. There was no evidence by Akinola’s son in support of the inconsistent averment in paragraph 8(e) of the amended statement of claim. Counsel for the respondents on this appeal was constrained to fall back on a rather convoluted understanding of a portion of the evidence of the 5th plaintiff witness where he said in answer to the question: “Does that conveyance cover ALL THE WHOLE LAND which your father bought from Ogundipe”, “Yes. Yes it is part of the land which the children of Ogundipe conveyed to my father that he (my father) sold a portion to the 1st plaintiff, Chief Lasisi Ishola Fajebe.” In my view, that piece of evidence confirmed that the conveyance covered ALL THE WHOLE LAND which Ogundipe sold to Akinola. The witness answered the question directly by simply saying “yes”. He confirmed that position by saying further that the land which Akinola sold to the 1st respondent was part of the land which the Children of Ogundipe conveyed to his father, Akinola.

Where there is direct and specific evidence on one of two inconsistent averments and there is none on the other, it will be wrong for the court to ignore such direct and specific evidence and proceed to a finding of fact in regard to the alternative averment on which there has been no such evidence. There was no evidential basis to find that the land in dispute was excluded from the land covered by the instrument Exhibit K because the 1st respondent had bought the land before Exhibit K was made.

In this case, not only was the oral testimony of PW5 consistent with the averment that the entire land sold by Ogundipe to Akinola was the one conveyed by the instrument, Exhibit K, there were also the contents of that instrument itself which clearly indicated that the instrument was made to carry out the promise contained in Exhibit C wherein it was stated that:

“The family will be willing to convey that property to the purchaser whenever he called upon them to do so.”

Part of the recital in Exhibit K reads as follows:

“3. By virtue of a private agreement and treaty the said family of the vendors headed by Aina Ogundipe agreed to sell and did sell to the purchaser the area of land hereby conveyed and granted for the sum of N350 (the 350) Three Hundred and fifty Naira) evidenced by purchase receipt dated 18th July, 1925.

“4. By virtue of an agreement and private treaty and in consequence of the sale to the purchaser referred to in paragraph 3 above and the Vendors have agreed to grant and convey unto the purchaser the said area of land hereby conveyed and granted for a further sum of N1,000.00 (One thousand Naira).”

Now to hold that only part of the land sold was conveyed will be inconsistent with the clear terms of the deed of conveyance.

It is clear, and it seems to be common ground, that the land in dispute was not within the land conveyed to Akinola by Ogundipe family as per Exhibit K. The evidence is also clear as given by Akinola’s son that all the land sold to Akinola by Ogundipe was the one conveyed by Exhibit K. It is also worthy of note that no member of Ogundipe family gave evidence in support of the respondents’ assertion that the land sold by Ogundipe to Aina covered land which included the land in dispute. The son of Abraham Akinola did not give evidence in support of the contention that only part of the land sold to his father was conveyed.

However, the learned trial Judge apparently considered that it is inconsequential that the land in dispute was not within land conveyed in Exhibit K because, as he said, there had been a valid sale as evidenced by Exhibit C and “the plaintiffs Deed (Exhibit D) dated 20th December, 1977 is merely evidence of the earlier sale therefore, as it does not and cannot detract from the completed sale under Native Law and Custom also evidenced by Exhibit C (the Purchase Receipt), and any defect in Exhibit D, defect therein, is not detrimental to the plaintiffs case.” Having reasoned thus the learned trial Judge felt comfortable with the conclusion that as between the 1st respondent and the 2nd appellant the former had proved a better title to the land in dispute.

The critical flaw in reasoning thus is that it ignored the clear evidence by the 5th pw that the land sold as evidenced by the receipt, Exhibit C, was the one conveyed by the Ogundipe family to Akinola. In my judgment it is perverse to ignore that evidence and the clear evidence of the defined boundaries of the land sold as delineated on the plan attached to Exhibit K and rely on the imprecise description of the land sold to Akinola by Ogundipe as contained in Exhibit C.

The land described in Exhibit C was described as “bounded on the North by the Shasha Stream, on the South of the Nigerian Civil Aviation, Ikeja on the West by Ewu family land and on the East by the Ajakaye and Doherty landed property.”

There was no oral evidence to locate these boundaries. No member of the Ogundipe family or any of the boundary-men named in Exhibit C was called to testify as to the boundaries and extent of the land sold to Akinola in 1925 or of any boundary contrary to what was delineated in the plan attached to Exhibit K.

Where the identity and extent of land described in a document is in issue the certainty of the land so described must be tested by the same yardstick as it would have been tested were a party claiming declaration of title to such land.

The rough and ready test as stated in Ate kwadzo v. Robert Kwasi-Adjei (1944) 10 WACA 274 is whether a surveyor armed with the record (in this case, the document) and going on the land would be able to produce an accurate plan of such land. It is evident that a surveyor armed with the document Exhibit C alone would not have been able to produce an accurate plan of the land described in that document. One result of all this is that in the face of the evidence of the 5th and the contents of the conveyance, Exhibit K, made by Ogundipe family to Akinola, reliance on Exhibit C to define the extent and identity of land sold by Ogundipe to Akinola in 1925 does not appear reasonable.

The trial Judge reasoned that it was inconsequential that the land in dispute fell outside the land conveyed to 1st respondent under the Deed of Conveyance Exhibit D because the sale of land to Akinola was a valid sale. The logic of this reasoning is elusive. It is evident that if the land conveyed to Akinola was the totality of the land sold to him, conveyance of any land outside that area of land to the 1st respondent by Akinola was futile. Exhibit C could only serve any useful purpose if the land to which it related was ascertainable or had been ascertained with reasonable certainty. The conclusions that the land to which Exhibit C related was the same land purported to be sold by Chief Doherty to the 2nd appellant was arrived at without adequate consideration of the evidence and without any acceptable evidential basis.

While Exhibit C could serve the purpose of providing evidence of payment of the purchase price, it fails to define the precise extent of the land to which it related. That land is sold under native law and custom does not dispense with need, where such question arises, to prove the identity of the land so sold. Payment of purchase price and delivery of land sold to the purchaser by the seller in the presence of witnesses are essential to the validity of sale of land under the Yoruba customary law which is the relevant customary law in this case. The requirement that the land must be delivered and that such delivery must take place in the presence of witnesses completes the formality of sale but it could also serve the purpose of identifying the land to which the transaction relates and its extent.

The delivery is often notional. However, the court is more likely to hold that delivery has taken place where the purchaser can show possession of the land. Where the question raised is, as in this case, to the identity of the land sold, possession of the land by the purchaser pursuant to the sale may be, and usually is, sufficient circumstantial evidence of the identity of the land sold. Where the question is as to the extent of the land sold, evidence of possession must be cogent and adequate enough to enable the court to decide on the balance of probabilities that the land sold was as extensive as a party claimed. Thus, although there may not be dispute as to the location of the land sold there may be dispute as to its extent and its boundaries. Where there is direct evidence to resolve such dispute in form of the evidence of persons who can speak to such facts, such should be produced. Where direct evidence is not available circumstantial evidence, in form of possession of the land, may be acceptable. However, such evidence must be cogent and the possession must be of such nature and extent as to lead to a reasonable probability that the land sold was indeed of such extent as the purchaser had claimed.

The present case concerns sale of land which the 5th plaintiff witness, Chief Michael Akinola, had said was over 200 acres. He said in his evidence in chief:

“My father bought the land from one Aina Ogundipe Ewu and it was a large piece of land. It was over 200 acres. It was only a portion of that land that my father sold to the 1st plaintiff.” (Emphasis is mine)

He described the location of his father’s farm land thus:

“If we are going to Agege from here, we will first of all get to Doherty’s farmland and Ajakaye’s land and thereafter we will get to my father’s farmland and Ajakaye’s farmland before the construction of AJAKAYE’S STREET. The Abeokuta Express Road now divides Ajakaye’s land from my father’s farmland. At another boundary of my father’s land is Airdrome. The land in dispute forms portion of the land sold by my father to Chief Fajebe, the 1st plaintiff.”

As regards possession of the land he said when cross-examined:

“My father’s farmland was thick bush before the modem development thereon. We were farming on it then.” (Emphasis is mine)

Further, he said:

“My father bought his farmland in 1925. I have known the land which my father bought right from the time he was put in possession thereof immediately after he bought it in 1925. After he was put in possession thereof my father built a farmhouse of mud on the land sold to him and we lived there.” (Emphasis is mine) It must be in the context of his knowledge of the farmland which his father bought and of which he was put in possession that he said further when cross-examined:

‘The children of Ogundipe made a conveyance for my father about the land he bought from their family.”

and also:

“The conveyance was made to cover the land which my father bought from Ogundipe family in 1925 and evidence (sic) by the receipt issued to him in 1925.” (Emphasis is mine)

The receipt Exhibit C does not contain acreage nor does it contain dimensions.

As earlier said in regard to description of the land, the boundaries stated therein were vague. The only delineated boundaries of the land are those shown on the plan attached to the conveyance, Exhibit K, which was executed by the vendor’s family and which the 5th Pw said covered the land which his father bought.

Other than the bald, and passing, assertion by the 5th pw that his father farmed on the land which he bought in 1925 and built a mud house thereon there was no other evidence by the 5th pw of possession of the land by Akinola pursuant to the sale by Ogundipe. In paragraph 8(d) of the Amended Statement of Claim the respondents pleaded as follows:

“…. the root of title to the land now in dispute is based on the sale by Aina Ogundipe to Abraham Akinola fashioned out according to the Yoruba native law and custom and the said transaction was further borne out by purchase receipt dated the 18th of July, 1925, issued to the said Abraham Akinola. The plaintiff will found on this document at the trial.”

The purchase receipt shows payment of purchase price. There was averment of possession of the land of Akinola in paragraph 13 of the Amended Statement of Claim and particularly in paragraph 14 as follows:

“The plaintiff aver that in further exercise of his right as owner in possession of the said land a portion of which is now in dispute the aforesaid Chief Abraham Akinola sold portions of the said land to him, farmed some portion of the same and let out portions to rent – paying and other tenants and employed portions of same for his own use.”

There was no evidence showing what portions of the land that Akinola bought he farmed on or let out to tenants or employed to his own use. When the area allegedly sold under native law and custom is as vast as was alleged in this case and there is a question as to the actual extent of the land sold, evidence of the location of the several acts of possession claimed by the purchaser becomes important in determining the probability that the land is as extensive as the purchaser had claimed. Such evidence was lacking in this case.

Where there is critical paucity of evidence of sale under native law and custom, as in this case, the plaintiffs’ title cannot be founded on such sale under native law and custom. In the case of Ajadi v. Olanrewaju (Vol 6) (1969 – 1970) NSCC 331 (in which I was privileged to participate as counsel before this court) this court had to consider the critical importance of proving compliance with the requirement of the law in regard to sale of land under native law and custom. At page 338 this court, per Coker, JSC., said:

“As for the testimony of the plaintiff/respondent that she had sold portions of the land, it is our view, even if the portion allegedly sold had been part of the land in dispute (which they are not), and that that evidence is not sufficient to prove a sale of land, whether under customary law or not. Much more is necessary. Thus, in order to transfer an absolute title to land under native law and custom, it is necessary that such a sale should be concluded in the presence of witnesses who saw the actual ‘handing over’ of the property. To transfer the legal title under ‘English law’ a deed of conveyance would need to be executed (see Cole v. Folami (1956) 1 F.S.C 66, (1956) SCNLR 180 and Erinosho v. Tunji Owokoniran (1965) NMLR 479.” (Emphasis mine)

Where a purchaser envisages that there may be difficulties in proving compliance with the stringent requirement of sale of land under customary law, he could employ the option of calling, at the time of the sale or at any subsequent time, for the use of non-customary formalities. Thus in Ajadi v. Olanrewaju (supra) at p 338 this court (per Coker, JSC) said:

“As there was no evidence that the admitted sale of portions of land by the plaintiff/respondent was carried out in the proper way either by the actual handing over of the property in the presence of witnesses or by using non- customary formalities such as a deed of conveyance, the, sale has not been proved and the learned Acting Chief Justice was right to have discountenanced it.”

Resort to the Deed of Conveyance, Exhibit K, was an option which the parties to the sale transaction employed to vest title in the land to which the transaction related in the purchaser, Akinola. There is no reasonable evidence that sale of any other portion of Ogundipe’s land under native law and custom was ‘carried out in the proper way’.

In my judgment, had the trial Judge properly evaluated the evidence he would not have made the finding that the Ogundipe famiiy had made a sale of land of which the land in dispute was part to Akinola. In the face of Exhibit K and it being undisputed that the land conveyed by the family of Ogundipe to Akinola, did not include the land now in dispute, it was clear that the title of Akinola to the land in dispute had not been established. The Court of Appeal should have so held. The conclusion by the trial Judge based on a finding that the family had made a sale of the land in dispute to Chief Abraham Akinoia in 1925 should not have been upheld by the Court of Appeal.

Having held that the land in dispute had not been shown to be part of the land sold by Ogundipe to Akinola, the argument that the respondents’ case must fail, the respondents having averred by their Amended Statement of Claim that Aina Ogundipe originally owned the land and that he sold it as his property whereas it was family property, becomes superfluous. A finding that Aina Ogundipe was not shown to have sold the land in dispute makes a further enquiry into the claim of the respondents that Aina Ogundipe was the original owner of the land or into whether he purported to sell it as his personal property superfluous. Besides, it is clear from the deed of conveyance, Exhibit K, that the family had regarded Ogundipe as acting on behalf of the family and as its head.

What is material for the purpose of this appeal is that the trial Judge had found that the land was family property and that the appellants have traced their title to that family. That finding is implicit in the passage of the judgment of the trial Judge quoted with approval by the Court of Appeal as follows:

“It is however clear that in this case both the plaintiffs and the defendants are tracing their title to the same family. If that family had made a valid sale of portion of its land in 1925 to Chief Abraham Akinola (as pleaded by the plaintiff) and which was satisfactorily established before me, then the family cannot sell the same land to other persons thereafter, and such purported sale by them of the same land to any other person will be null and void.

Nemo dat quid non abet (sic). It seems to me therefore that in so far as the land sold to Chief T. A. Doherty by the ‘Ajamogun, Onilude and Oniku families’ (the said family) by virtue of the Deed of Conveyance dated 11th April, 1953 and registered as No. 57 at page 57 in Volume 960 forms portion of (or is the same as) the land sold to Chief Abraham Akinola in 1925 by Aina Ogundipe (the original owner), the 1953 sale to Chief T. A. Doherty to the 2nd defendant will also be null and void.”

As advanced in argument by Professor Osipitan the clear inference of the D’ above passage is that had there been no prior sale of the land in dispute by Aina Ogundipe, the sale of Chief T. A. Doherty would not have been null and void. By simple deduction, given that Akinola and Chief Doherty had the same root of title, there being no proof of any prior sale of the land by the family, the sale to Chief T. A. Doherty was valid and title of the appellants traced to Chief Doherty is, in consequence, also valid.

The judgment of the trial Judge was severely flawed when he held that the respondents pleaded and relied on, and in finding that, Chief Abraham Akinola had possession from 1925 “after the sale to him under Yoruba native law and custom of the land evidenced by the said purchase receipt of 1925 (Exhibit C) was adverse to the right of the original owners,” As has been seen there was no such possession proved as the learned Judge imputed and Exhibit C which he relied on shows nothing that approximated to possession of land of any dimension. The only reliable evidence of title which Akinola had being Exhibit K and the land in dispute being outside the land conveyed by Exhibit K, the long possession that could be of any use to the respondent must be possession of Akinola of the land in dispute. Akinola was not shown to have been in such possession or any at all.

One cannot but be impressed by the argument advanced in the appellants’ brief that there was preponderance of evidence in favour of the possession of the appellants’ predecessors in title, dating from 1953. The learned counsel for the appellant relied on contiguity of the land owned by Chief Doherty to the land in dispute over which Chief Doherty received compensation upon acquisition of the land by the Government, and evidence that the land in dispute was surveyed by and conveyed to Chief Doherty in 1953. In certain circumstances surveying land and burying survey pillars on it is evidence of possession. In Willa-Ofei v. Mabel Danquah (1961) WLR 1238 (PC) at p. 1243 Lord Guest said:

“Their Lordships do not consider that in order to establish possession it is necessary for a claimant to take some active steps in relation to the land such as enclosing the land or cultivating it. The type of conduct which indicates possession must vary with the type of land. In the case of vacant and unenclosed land which is not being cultivated there is little which can be done on the land to indicate possession. Moreover, the possession which the respondent seeks to maintain is against the appellant who never had any title to the land. In these circumstances the slightest amount of possession must be sufficient.”

In this case the activities of the 2nd appellant in regard to the land since 1971 cannot be brushed aside or wished away. Not only did it cause the land to be surveyed, it was also active in claiming compensation when the land was believed to have fallen within land compulsorily acquired by the Government and pursued that claim until the land was released by the Government as not falling within the acquisition area.

Quite apart from these acts, the law is clear that proof of ownership is proof of possession. In Badejo v. Sawe (1984) NSCC 481 this court (per Aniagolu, JSC, at page 482) said:

“The principle in Lows v. Telford (1876) 1 App. Cas. 415, at 426, which is accepted in our law, has been that where there is a dispute as to which of two persons are in possession, the presumption is that the person having title to the land is in possession.”

In this case the 2nd appellant’s predecessor in title has been shown to have title to the land since 1953 and the 2nd appellant since 1971. The presumption of their possession is reinforced by evidence that is presently referred to, in the face of which there could be no reasonable justification for the finding that the predecessors in title of the respondents had any long possession.

In deciding the probability of a question of fact, the court should not ignore evidence of relevant facts about which there cannot be any doubt. In the light of the activities of the 2nd appellant in respect of the land as given in evidence for the appellants and attested to by several letters exchanged between it and the Government over the land spanning over several years from 1972 to 1975, it should have appeared improbable to the trial Judge that the appellants would have entered the land only in 1977 as the respondents claimed or that the 1st respondent was on the land before 1977. It must be said that public confidence in the judicial process will be severely eroded if trial courts ignore or show scant regard to vital evidence which is unanswerable and proceed to make findings and give judgments which fly in the face of obvious facts.

It is evident that the appellants have shown better title to the land than the respondents who have shown no title at all. There was really no evidence on which the learned trial Judge could rightly have found laches and acquiescence to defeat the appellants’ claim or, as I have said, long possession to support the respondents’ case. The Court of Appeal affirmed the judgment of the trial Judge without evaluating the evidence on which the trial Judge relied for his findings of fact. Had the court below carried a proper evaluation of the evidence as it was expected to do, it would have found that the learned trial Judge was in error to have dismissed the appellants’ counter- claim and to have entered judgment for the respondents on their claim.

For these reasons, I would allow the appeal, set aside the judgment of the court below and of the High Court. I dismiss the respondents’ claim.

I enter judgment for the 2nd appellant on the counter-claim. I award N2,000 damages against the respondents for trespass and order an injunction restraining them from committing further acts of trespass on the land. I set aside the award of costs made by the High Court and the Court of Appeal and order costs to be paid by the respondents as follows:

i. costs of the trial assessed at N1,000

ii. costs in the court below assessed at N5,000

iii costs of this appeal assessed at N10, 000

SC 79/1993