Mrs. Lydia Omoware Thompson & Anor. V. Alhaji Jimoh Arowolo (2003) LLJR-SC

Mrs. Lydia Omoware Thompson & Anor. V. Alhaji Jimoh Arowolo (2003)

LAWGLOBAL HUB Lead Judgment Report

O. EJIWUNMI, J.S.C. 

The action that culminated in this appeal was commenced by the appellants when they took out a writ of summons against the 186 respondent on the 10th day of June, 1983. Following the order that pleadings be filed, the parties duly filed and exchanged their pleadings. The appellants also filed with the leave of the trial court

an amended reply to the statement of defence filed by the respondent. The case was therefore heard on the issues as joined by the parties in their pleadings. The appellants by their statement of claim pleaded thus at pages 4-6 of the printed record: –

“1. The 1st plaintiff is the daughter of one Frederick Ephraim Williams who died testate at Palm Church Street, Lagos on the 12th day of November, 1918 and probate of his will was granted to the two Executors and Trustees named in his will.

2. The 2nd plaintiff is a private limited liability company incorporated under the Laws of Nigeria and having offices at N0.3 Tonode Street, Ikeja, Lagos State.
3. The defendant is the head and represents the Olarokun Family of Orile, Agege.
4. The said Frederick Ephraim Williams (deceased) owned tracts of farm lands along Iju Railway Station, Iju and this formed part of his estate when he died in 1918.
5. Under and by virtue of the Supreme Court Order dated 11th day of March, 1947 in suit No. P21/1918. The Trustees of the said Frederick Ephraim Williams were released from administering the estate and the task was transferred to the Public Trustee appointed for that purpose.
6. By an Order of court dated the 29th day of May, 1961 made in suit No. M/18/61 (after protracted litigation between the Public Trustee and the beneficiaries of the will of the said Frederick Ephraim Williams) the High Court at Lagos ordered that the property of Frederick Ephraim Williams (deceased) be apportioned or partitioned amongst the beneficiaries.
7. Pursuant to the said Order of the High Court and the ensuing apportionment made thereunder a piece of landed property known as plot No. 14 part of the estate of Frederick Ephraim Williams (deceased) situate at Iju Railway Station, Iju in the Ikeja Division of Lagos State was apportioned to the 1st plaintiff.
8. Under and by virtue of a Deed of Assent dated the 5th day of July, 1977 and registered as No. 85 at page 75 in volume 1638 of the Lands Registry in the office at Lagos, the Public Trustee as the legal personal representative of Frederick Ephraim Williams (deceased) vested in the 1st plaintiff all that piece or parcel of farm land measuring approximately 12.85 acres (being the said plot No. 14 in the estate of Frederick Ephraim Williams (deceased) situate, lying and being at Iju Railway Station in the Ikeja Division of Lagos State in fee simple in possession free from all encumbrances.
9. The late Frederick Ephraim Williams was throughout his life in uninterrupted possession and ownership of the farmland of which the land the subject matter of this suit formed a part and so were the Trustees of his estate including the Public Trustee appointed under the Order of court.
10. By a Purchase Receipt Agreement made on 22nd day of January, 1978 the 1st plaintiff transferred her interest in the said plot No. 14 of the estate of Frederick Ephraim Williams at Iju Railway Station, Iju to the 2nd plaintiff (Kosemani Enterprises Limited) in consideration of the sum of N44,000,00.
11. The 2nd plaintiffs (sic) were thereupon immediately put in possession.
12. The defendant and/or his agents on or around went on the said plot No. 14 at Iju Railway Station and committed various acts of trespass on the land by removing the beacons erected by the 2nd plaintiff’s surveyor, divided the land into plots, have sold and continued to sell to various persons who have been erecting buildings on the said land.
13. That despite repeated warnings from the plaintiffs to desist from the said acts, the defendant failed to stop and has continued his act of trespass on the land, the subject matter of this suit.
14. WHEREUPON the plaintiffs claim against the defendant as follows: –

(a) In favour of the 1st plaintiff, a declaration that the plaintiff is the owner of a statutory tight of occupancy to that piece or parcel of land lying and situate at Iju Railway Station, Iju in the Ikeja Division of Lagos State known and referred to as plot No. 14 in the estate of Frederick Ephraim Williams which land is more particularly marked and delineated on a survey plan drawn by one E. A. Ogunbiyi, Esq. a licensed Surveyor, and annexed to a registered conveyance No. 75 at page 75 in volume 1638 in the Lands Registry in the office at Lagos.

(b) In favour of the 2nd plaintiff the sum of N50,000.00 (Fifty Thousand Naira) being damages for trespass when the defendant by himself and by his agents, servants and workmen and privies went on the said land and removed the 2nd plaintiff’s beacons, divided the land into plots sold and continue to sell to various persons who have erected buildings on the said land.

(c) Order of perpetual injunction restraining the defendant his servants and/or agents and privies from entering upon or interfering any further with the land the subject matter of the suit.”

The appellants also filed an amended reply to the statement of defence of the respondent thus: –

“1. The plaintiffs join issue with the defendant on his defence.

2. The plaintiffs deny each and every allegation contained in paragraphs 2 – 8, 10 and 12 – 15 of the statement of defence and put the defendant to proof thereof.
3. In particular denial of the averments contained in paragraphs 2 – 8, 10 and 11 of the statement of defence the plaintiffs state that the land, the subject matter of this suit, originally belonged to Dada Agunwa, Ige Egun Oniye and Oriyomi Balogun who conveyed same to one Frederick Ephraim Williams the father of the 1st plaintiff in this suit by a Deed of Conveyance and the said Deed of Conveyance together with the attached plan will be relied upon at the trial of this suit.
4. The plaintiff will inter alia further rely at the trial of this suit and in proof of their claims in this suit upon a composite plan No. JO/21/85 dated 21st June, 1985 drawn by one J. Olushola Ogunsanya, Esq., licensed Surveyor showing inter alia the extent of the plaintiffs’ said predecessor in title and also the area now being trespassed upon by the defendant.
5. The 2nd plaintiffs further in answer to the averments of the defendants in paragraphs 12 & 13, state that soon after their purchase of the portion of the 1st plaintiff’s land, the subject of this suit, they were put in possession until the intervention and trespass of the defendant the subject of this claim.
6. The plaintiffs thereupon repeat the averments as set out in their statement of claim.”

The statement of defence of the respondent is as follows: –

1. The defendant denies paragraphs 1,2,4,5,6,7,8,9,10, 11, 12, 13 and 14 of the statement of claim specifically and puts the plaintiffs to the strictest proof thereof.
2. The defendant admits paragraph 3 of the statement of claim only to the extent that he is the head of Olarokun family of Orile Agege but denies that he is the sale representative of the family.
3. The defendant avers that he is just one of the four Attorneys of the family with regard to the management, control and alienation of the family land, part of which is now in dispute.
4. The defendant avers that his family i.e. the Olarokun family of Orile Agege is the owner of a parcel of land stretching from Irefu stream in Orile Agege to Abule Egba and Oko-Oba with the Lagos/Abeokuta Railway line as their boundary with Ibari family of Otta.
5. The defendant avers that he has always been on his family land as head of family and not on any other person’s land.
6. The defendant avers that he does not know the plaintiffs’ land talkless of going on their land. And that the plaintiffs have not filed any plan in this case to show their land in relation to the defendant’s land.
7. The defendant avers that his great grandfather Olarokun who migrated from Iga-Iloti in Otta, settled on this land very many years, cultivated and superintended (sic) the land throughout his life time without let or hindrance until his death when he left him (sic) surviving to the estate his five children: Osholesi, Agbaosi, Adejiyan, Aiyelabi and Onumi, who inherited the vast area of land by Yoruba native law and custom. They cultivated, managed and superintended (sic) the land without any hindrance from any source whatsoever until they all died leaving the land to their children who inherited same.
8. The defendant avers that the Olarokun family land is bonded on the four sides by Akinlabi family land of Orile Agege, Ikudoro and lbari family land on Iju Station, Obawole and Iyanru families on other sides.
9. The defendant avers that his family never sold or leased any portion of his land to the first or second plaintiffs; and the alleged vendors of the plaintiffs are no members of Olarokun family.
10. The defendant avers that his ancestors who succeeded Olarokun to the estate had many customary tenants on the land such as, Gboyiki family, Sedimu Adeyemi family, Ogundele Samuel Ogunjobi and Faleti families who paid and still pays tribute to Olaroku family annually; for the use of the land.
11. The defendant avers with specific reference to paragraphs 4, 5, 6, 7, 8, 9 and 10 that the said F. E. Williams had no sanguinary affinity with the defendant family. And that he was a Sierra Leonean who settled and lived in Lagos and had nothing to do with the defendant’s family land in his lifetime.
12. The defendant avers that neither the 1st nor the 2nd plaintiff was in possession of any part of his family land to his knowledge at any time and hitherto .
13. The defendant avers that paragraphs 11, 12, 13 and 14 denied specifically as false and mere fabrications from the plaintiffs’ imagination.
14. The defendant states that his family’s hold on the family land which has endured for over a century has never been challenged by the plaintiffs or their predecessors-in-title before now.
15. The defendant avers that he is not liable to the plaintiffs in the sum of N50,000.00 or in any sum at all, as he was never on his land.
16. WHEREFORE the defendants stated that the plaintiffs claim is speculative, frivolous and vexatious and should be dismissed with costs.”

The appellants called four witnesses in support of their claim, while the respondent gave evidence as DW1 and called eight other witnesses to establish his defence to the action. The trial court dismissed all the claims of the appellants. As the appellants were dissatisfied with the judgment of that court, they appealed to the court below. In that court, their appeal was allowed, but an order was made that the case be heard de novo, by another Judge of the High Court of Lagos State sitting at its High Court at Ikeja. After a review of the evidence and the submissions of counsel, the reasons given for arriving at this conclusion per the judgment of Kalgo, JCA (as he then was) and with which, M. M. Akanbi, JCA (as he then was) and Coomassie, JCA concurred, read thus: –

“There is amply (sic) evidence produced at the trial by both parties but the learned trial Judge has failed to make specific findings of facts on the vital issues involved. In the circumstances, I am of the view that the appeal must be allowed on this score, I so do. But the facts and circumstances of this case are such, that in my respectful view, this court cannot proceed to decide the case on the evidence before the trial court. It is also my considered view, that if the parties are given the opportunity to re-litigate on the matter, none of them will be wronged or prejudiced and no miscarriage of justice will be occasioned thereby. See Ayoola v. Adebayo (1969) 1 ANLR 154 at 162.”

As the appellants were again dissatisfied with the judgment and orders of the court below, they lodged a further appeal to this court. Pursuant thereto, they filed a notice of appeal containing five grounds of appeal which, without their particulars, are as follows:

“1. The Court of Appeal misdirected themselves in law when they failed to make findings on the documentary and unchallenged oral evidence presented by the parties in this case.

2. The Court of Appeal misdirected themselves in law in failing to observe that exhibit B a Deed of conveyance made in 1911 and the possession of the land by the 1st plaintiff’s family as shown by the unchallenged evidence of 2nd P.W. confers title to the land in dispute on the plaintiffs.
3. The learned Justices of the Court of Appeal misdirected themselves in failing to observe that they were in good position to determine this case on the documentary evidence namely exhibits A, B, C, D, E, F, G, H and the traditional evidence of the defendant without remitting the case to the High Court for trial de novo.
4. The Court of Appeal after holding that the finding of the High Court that the evidence of possession of the land in dispute as coming from the defendant is stronger than that of the plaintiffs is perverse, misdirected themselves in law when they failed to hold that evidence of possession adduced by the plaintiffs is stronger in view of the unchallenged evidence of 2nd P.W. and exhibits F,G & H.
5. The learned Justices of the Court of Appeal erred in law when they directed this case to be remitted to the High Court for trial de novo by another Judge.”

Subsequently, briefs of argument were filed and exchanged by the parties. The appellants filed a reply brief upon being served with the brief filed on behalf of the respondent. At the hearing before us, learned counsel for the parties adopted and placed reliance upon their respective briefs for the determination of this appeal. Both counsel also made oral submissions in support of the arguments in their briefs.

For the appellants, the issues identified for the determination in the appellants’ brief are:

“1. Whether the retrial order made in the circumstances of this case was right.

2. Whether the Court of Appeal was in a good position to determine the case on the evidence on record.
3. Whether the plaintiffs proved their case”

As the issues identified in the respondent’s brief filed on his behalf by his learned counsel are similar to those set down in the appellants’ brief, I do not consider it necessary to set them down in this judgment. I have also considered these issues in the light of the grounds of appeal filed by the appellants and found that they do properly arise from the grounds of appeal so filed. The merits of this appeal would therefore be considered on the basis of the issues reproduced above from the appellants’ brief. Before doing so, it is I think desirable to review the facts briefly.

The 1st appellant gave evidence to the effect that Frederick Ephraim Williams was her father and that he died testate leaving a will. The certified true copy of the probate of the last will and testament of the said Frederick Ephraim Williams, who died on the 12th November, 1918 was admitted as exhibit “A”. She stated that though at the time of the death of her father she was very young, she later learnt that she inherited a landed property under the will. This landed property which is situated at Iju is part of his landed property covered by a Deed of Conveyance dated 10-3-1911, registered as No. 40 page 128 volume 72 in the Registry of Lands at Lagos, and was admitted and marked exhibit ‘B’. By virtue of this exhibit ‘B’, it is evident that the land of which the land in dispute forms part was by the indenture conveyed to the testator, of Palm Church Street in the town of Lagos on the tenth day of March, 1911 by Dada Agunwa Wood Carver, Ige Egun Oniye, farmer all of Otta Road in the then British Colony of Southern Nigeria. It was stated also in exhibit ‘B’ that the vendors were seised of the property in fee simple and in possession free from encumbrances. It is this property which is more particularly described in the plan attached to the indenture and F distinguished with the colour red that was conveyed to the purchaser, namely, Frederick Ephraim Williams in fee simple. The 1st appellant further testified that as the trustees and executors who were appointed to administer the property left by the testator were removed from acting in that capacity, the administration of the property was thereafter handed over to the Administrator-General and Public Trustee. Then by an Order of court made on the 29th day of May, 1961, the Administrator-General and Public Trustee apportioned the property amongst the children of the testator, Frederick Ephraim Williams. After the 1st appellant became vested with the property identified as plot No. 14 in the Deed of Assent, exhibit ‘D’, she directed her nephew, 3rd P.W. to look for a buyer. The said plot No. 14 was eventually sold to the 2nd appellant.

The respondent also, in presenting his case, gave evidence in his own behalf and in addition, called eight other witnesses. Now in his own evidence, he started by asserting that he did not know the 1st appellant before this action was commenced against him. It is however his case that the entire land beginning from the stream of Erefu Orile Agege to Oko Ogbengbe, now known as Oko Oba belonged to his father. He however, said that he does not know the exact acreage of the land, but also referred to a plan No. J061A/76. This plan was not tendered during the trial and was therefore not admitted as an exhibit. DW I, continued with his evidence by stating who his boundary men were with regard to the disputed land. His evidence and extent of the disputed land, which included its description, reads inter alia, thus: –

“My boundarymen are from Erefu Akinlabi family, little after that, there is Ikudoro family, going further, there is the Ibari family very near the railway line along Ifako. Going further, there is Oba Wole family near Ojokoro, there is Iyanru family, coming back from there along Abeokuta Lagos Road, we get Irolo llan Opa family, after llari Opa family we will get to Ekoro and then to Odo Erefu.”

The respondent then went to give evidence of how the land, presumably the disputed land, came to be in possession of his family and for which he is claiming its ownership. It is his case that his father who was a farmer and also a hunter in 1834 while on a hunting expedition came to a forest where no one had ever been. As he found no one there, he decided to settle there. He therefore built a hut there. His father, it is claimed lived there for many years without any trouble. It was whilst there that Olarokun married two wives, namely Efuntan and Shogegbemi. Efuntan had five children for him namely Osholesi, Agbaosi, Aiyelabi, Adesiyan and Onuni. But

Shogegbemi did not have any issue. The respondent further stated that Agbaosi begat his own father, named Abudu Orowolo. He added that Osholesi had children and one of them named Lamidi Kosoko was also in court. It is also his evidence that all the descendants of Olarokun are living in the land founded by their grandfather and had built their own houses thereon. Their grandfather who also lived and died there, brought two idols from Otta, named Ale and Ogun which he worshipped and are still being worshipped to this date. His grandfather who died in 1870 was buried in the said land, which is in contention.

The respondent also called as witnesses the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 9th defendant witnesses respectively. The 2nd, [3rd, 4th and 5th, defence witnesses gave evidence that they are boundary men to the land they claimed belonged to the family of the respondent. The 6th, 7th, 8th and 9th defence witnesses gave evidence that they are customary tenants of the respondent. Usman Kasali, in the course of his evidence stated that he was born on the disputed land in the house built by his grandfather, who was a tenant of the respondent’s family through their grandfather. And under cross-examination, he said that about 12 years ago when he gave evidence, he was also given a piece of land by Chief Lemonu of Orile Agege who was then, the head of the Olarokun family.

In arguing the appeal, issues (1) and (2) were argued together. These are, whether the retrial order made by the court below was right in the circumstances, and whether the court below was in a good position to determine the case on the evidence on record. The thrust of the argument is the submission of their learned counsel in their brief and in his oral argument before us is that the Court of Appeal was in a good position to determine the appeal on the evidence on the printed record and the exhibits in court. In this respect, learned counsel asked the court to note that the appellants’ case rested mainly on documents, which were supported by evidence of possession. In addition, it is submitted that the trial court and the court below accepted the evidence of the appellants given through the P.W.2, the surveyor who tendered exhibit ‘F’, the survey plan that the identity of the land was established. It is also the contention of learned counsel for the appellants that the respondent failed entirely to lead evidence, which could have led the court to uphold his case at the trial. The evidence given by the respondent consisted of a description of a vast area of land, which he claimed belonged to him by inheritance. Though he claimed that his grandfather founded the land in 1834, yet he admitted in his own evidence that he did not know the total acreage of the land. He had admitted that he had commissioned a survey plan and also what he referred to as a composite plan, none of these plans was tendered at the trial. The evidence of the boundary men he argued, cannot be of much assistance to him also. This is because their evidence would be relevant if the land to which they are boundary men is ascertainable. It is therefore the contention of learned counsel for the appellants that having regard to the evidence in the printed record and the documentary exhibits admitted, the court below could have determined the appeal. The order of retrial made by the court below, it is argued, is not apposite in the circumstances. In support of his submissions, he referred to the following cases in the two briefs filed for the appellants; Ajadi v. Olanrewaju (1969) 1 All NLR 382 at 389; Okeowo v. Migliore (1979) 11 SC 138 at 201; Ogbuokwuelu v. Umeanafunkwa (1994) 4 NWLR (Pt. 341) 676 at 713.

In the brief prepared for the respondent by his learned counsel, Miss O. M. Lewis, the 1st and 2nd issues were similarly argued together as did the learned counsel for the appellants. The contention made for the respondent is to the effect that the order of retrial made by the court below was made by that court in the exercise of the discretionary power vested in the court. This court, it is therefore submitted, should not interfere with the exercise of the discretion of the court below unless this court is satisfied that the exercise of that discretionary power was manifestly wrong, arbitrary reckless, injurious or contrary to justice. For this submission, the following cases were cited: University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) 156; Imonikhe & Anor v. A.-G., Bendel State & Ors. (1992) 6 NWLR (Pt. 248) 396 at 408. It is also argued for the respondent that this is a proper case for an order of retrial to be made. This is because the trial Judge failed in his primary duty to make findings on issues joined on the pleadings. It is therefore argued for the respondent that the evidence is such that an appellate court cannot make its findings and come to a decision on all the relevant issues. For this submission, the following cases were brought to our attention: Awote v. Owodunni (No.2) (1987) 2 NWLR (Pt. 57) 366; Adeyemo v. Arokopo (1988) 2 NWLR (Pt. 79) 703; Oko v. Ntukidem (1993) 2 NWLR (Pt. 274) 124 at 136-137.

Having regard to the argument of counsel and the issues under consideration, I think that, the question that must first be determined is whether the court below could properly have determined the appeal before it on the printed record and the other documentary exhibits tendered in the course of the trial. Learned counsel for the appellants says yes, while learned counsel for the respondent has argued to the contrary. For the determination of who is right or wrong, I will refer first to the settled authorities on when an appellate court could determine a matter as had occurred in the instant appeal. Thereafter I will refer to the pleadings and the evidence which I have taken the precaution to refer to copiously earlier in this judgment. There can be no doubt that learned counsel for the respondent has submitted that it is trite principle of law that a Court of Appeal should be loathe to interfere with or reverse findings of fact made by a court of trial unless such findings are perverse. The principles for which a Court of Appeal must be chary of interfering with the findings of a trial court have received full consideration in this court in Ebba v. Ogodo (1984) 1 SCNLR 372, where Eso, JSC in the course of his judgment said at page 378, referring with approval to the English case of Watt or Thomas v. Thomas (1947) AC 484, continued thus: –

” ….. Indeed, it is the duty of the trial court to assess witnesses, form impressions about them and evaluate their evidence in the light of the impression which the court forms of them. That is one good reasons why the trial court is named a ‘trial court’ (and hence a Court of Appeal should attach the greatest weight to the opinion of the trial Judge) that has the duty to see and indeed, in this case, has seen the witnesses and also heard their evidence ………………………………………..

Unless the trial court has failed to make use of this singular advantage, and for that reason thereof the Court of Appeal finds that the decision is perverse, the Court of Appeal, whose opportunity is confined to printed record is obliged to, and must accord to the finding of fact, by the trial court the greatest weight and due respect. That indeed is the division of labour, and a sensible one at that, between trial court and the appellate courts.”

At page 379, His Lordship continued thus: –

“But this division ends or rather does not exist, where the question does not a affect the issue of credibility of witnesses; in other words, the Court of Appeal itself will obviously be in as good a position as the trial court, for in such a case, the trial court has no advantage really over the Court of Appeal. For the Court of Appeal will be in a proper position to evaluate, as the trial court, the evidence which has been given in the case, for in such cases the matter in dispute has been completely narrowed down to inference that could be drawn from proved facts, without going through the rigour of credibility of witnesses. When we have this type of case, the Court of Appeal should not shrink from the talk of such evaluation or be inhibited therefrom, just because it is a Court of Appeal See Benmax v. Austin Motor Co. Ltd. (1955) AC 370. See also Lion Buildings Ltd. v. M. M. Shadipe (1976) 12 SC 135 as per Sir Udo Udoma, JSC at page 153.”

It is clear from the above quoted statement of principle with regard to when a Court of Appeal should in an appeal before it consider itself to be in as good a position as the trial court to evaluate and resolve the questions raised in the appeal. It seems to me that in order to arrive at its decision, the Court of Appeal ought to ask itself primarily whether the questions raised in the appeal affected the issue of credibility of witnesses. It seems, having regard to the principles adumbrated above, that where the questions that fall to be determined do not raise the issue of credibility of witnesses, then the Court of Appeal has the duty to interfere with the discretion of the trial court in order to determine the justice of the case between the parties, For further guidance on this, it is apposite to refer to page 381 of Ebba v. Ogodo (supra) where Kayode Eso, JSC analysed the different situations that may confront an Appeal Court in the course of the determination of an appeal It reads: –

“An Appeal Court in applying these principles should, I venture to suggest: –

(a) start with an attitude to the trial court, as the only court which has principally, the duty to make findings of fact from the evidence – oral and or documentary – before it, also that the trial court is the court that has been specially suited, by its peculiar constitutional set-up and rules so to do. (The trial Judge sees the witnesses and has the exclusive advantage to observe their demeanor);

(b) then find out whether the conclusion which has been arrived at by the trial court is justifiable when it is re-examined against the very premise and or the controversy vel non which formed the basis of the conclusion arrived at by the trial court;

(c) where the conclusion is arrived at without any real controversy, e,g. in the case of documentary evidence, or where it does involve a controversy, the controversy is limited only to number, complexity or contradiction or interpretation of the document or further where there is oral evidence but it involves merely an admission by the adversary or there is an unchallenged piece of oral evidence, the Court of Appeal should consider itself to be in as good a position as the trial court, in so far as the evaluation of such evidence as aforesaid in this paragraph is concerned;

(d) where the decision is arrived at, after there has been an examination of a controversy (and this is the commonest aspect) as where the opposing parties produce witnesses in the case to contradict each other by oral evidence, then the Court of Appeal should appreciate that the following will be relevant:

(i) Credibility of witnesses based on demeanors of the witnesses only:- Here, the trial court is the sole Judge as the observation of the demeanor of the witnesses has to be peculiar and exclusive to the trial court which advantage is not and can never be available to the appellate court.

(ii) Credibility of witnesses based on factors other than demeanor:- The Court of Appeal should examine those factors which the trial court examined as a result of which it made the inference which led to its finding and determine whether that trial court has made use of its singular advantage of seeing and hearing the witnesses before making its finding especially having regard to the inference that could reasonably be made by a just and reasonable tribunal from the same factors.”

In the instant case, learned counsel for the appellants has submitted that the question before the Court of Appeal is resolvable upon the documentary exhibits tendered and accepted by the trial court by the appellants to prove the 1st appellant’s claim to the disputed land. In this respect, it must be borne in mind that the claim of the 1st appellant to the disputed land rests mainly on documentary exhibit. Although I have quoted them earlier in this judgment, it is not inimical to refer to them briefly thus:

(1) Exhibit ‘A’ – the Will of the Testator Frederick Ephraim Williams executed in 1918 wherein 1st appellant was named as a beneficiary of a portion of the estate owned by the Testator.

(2) Exhibit ‘B’ the Deed of Conveyance by which the owners of the land conveyed to the Testator the totality of the land purchased from the owners named in the said Deed of Conveyance.

(3) Exhibit ‘C’ -judgment of the High Court of Lagos dated 13th December, 1965.

(4) Exhibit ‘D’ – the Deed of Assent wherein 1st appellant was vested with all that piece of land measuring approximately 12.85 acres and being plot 14 in the estate of the Testator situate lying at Iju Railway Station, Iju, Ikeja Division following the partition of the estate by virtue of the High Court dated 29th of May, 1961 in suit No. M/I8/61.

(5) Exhibit ‘E’ – Purchase Receipt Agreement made between the 1st appellant, Lydia Omoware Thompson (nee Williams) and the 2nd appellant, for the sale of plot 14 owned by the 1st appellant to the 2nd appellant.

(6) Exhibit ‘F’ – Survey Plan of the disputed land. (Plot 14)

(7) Exhibit ‘G’ – Survey Plan of Layout of the disputed land.

(8) Exhibit ‘H’ – Composite Plan.

The appellant gave evidence that related to the above documents, and how they came into existence. This was followed by the evidence of 2nd P.W., the licensed surveyor who tendered exhibits ‘F’, ‘G’ and ‘H’ and that he was commissioned by the 2nd appellant to carryout the survey of the disputed land. The 3rd witness who introduced the 4th, P.W., the Chief Executive of the 2nd appellant, and who purchased the disputed land on behalf of the 2nd appellant.

With regard to the case revealed on the printed record for the respondent, I have earlier in this judgment referred to the evidence given by the respondent in support of his case. It is not in dispute that the evidence of the respondent is to the effect that he was the inheritor of a vast area of land, allegedly founded by his grandfather in 1834. But he had no idea of the extent of the land and he did not tender a survey plan to show the extent of the land.

The question raised in respect of this issue in my view, falls for determination as per paragraph (c) of the principles set out at page 381 of Ebba v. Ogodo (supra) by Kayode Eso, JSC. I have already noted that the oral evidence on the printed record in support of the case for the 2nd appellant is mainly to explain the documentary exhibits accepted by the trial court. Any controversy arising therefrom can be resolved in the course of the consideration of the judgment of the court. In respect of the evidence of the respondent, it is clear that the case of the respondent cannot really be said to be a complete negation of that of the appellants when he failed totally to give substantive evidence to prove the identity of the land he owned as it affects the disputed land. I must therefore hold from what I have said above that the Court of Appeal was in a position to have interfered and determined the questions at issue in the appeal before it.

The next question is whether the order made by the Court of Appeal that the case be heard de novo by another Judge of the High Court of Lagos State was proper in the circumstances. On this point, there are certainly wealth of judicial authorities wherein the principles that should guide an Appeal Court when considering whether to order a retrial or not. In the case of Ogbuokwelu v. Umeanafunkwa (1994) 4 NWLR (Pt. 341) 676 where at pages 712-713 Ogundare, JSC, stated the applicable principles thus: –

“Where an appellate court is in a position, after considering the evidence, to do complete justice between the parties an order for a new trial should not be made Okeowo v. Migliore (1979) 11 SC 138, 201 (per Idigbe, JSC): the court should where the circumstances of the case permit, correct the decision appealed against Nader v. Customs and Excise (1965) 1 All NLR 33, 37 (per Bairamian, JSC). Where however, a finding depends so much on the credibility or reliability of witnesses an appellate court should order a retrial – Shell BP v. Cole (1978) 3 SC 183, 194-195 (per Bello, JSC (as he then was); Total v.Nwako (1978) 5 SC 1, 14 where Obaseki, JSC observed:

Where it is established before a Court of Appeal that vital issues which depend much on the appraisal and evaluation of the evidence are left undermined, a case for a retrial is made out for such a failure has occasioned a miscarriage of justice, i.e. miscarriage of justice which in this con means (as ably defined by Lord Thankerton in the case of Bibhabati Devi v. Kumar Ramendra Narayan-Roy (1946) AC 508 at page 521 such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all.

See also Okpiri v. Jonah (1961) All NLR 102, 105 where Sir Ademola, CJF (as he then was) said:

Throughout his judgment the learned trial Judge avoided making specific findings of facts on issues before him, nor did he made attempt to draw inferences from facts before him. I am satisfied from the whole record that he has not taken proper advantage of having seen and heard the witnesses in the case, and in my view, this is a proper case to be sent back for a rehearing.

Where the plaintiff has failed totally to prove his case and there is no substantial irregularity apparent on the record or shown to the court, an order of retrial should not be made. As Coker, JSC put it in Ayoola v.Adebayo (1969) 1 All NLR 159, 162:

An order for retrial inevitably implies that one of the parties, usually the plaintiff, is being given another opportunity to re-litigate the same matter and certainly before deciding to make such an order we think that an appellate tribunal should satisfy itself that the other party is not thereby being wronged to such an extent that there would be a miscarriage of justice….. an order for a retrial is not appropriate where it is manifest that the plaintiffs’ case has failed in toto and that no irregularity of a substantial nature is apparent on the records or shown to the court.”

Returning to the case in hand, it is manifest from what I have said above that the appellants who has the burden of establishing their claim had shown by the several documentary exhibits admitted at the trial and the evidence thereon, their rights to the land in dispute. On the other hand, apart from the evidence of the respondent that he owned a vast area of land which he inherited from his ancestors, and which allegedly included the land claimed by the appellants, there is no evidence whatsoever to show the identity, extent and scope of the land of the respondent. It is manifest from the printed record that during his evidence at the trial, he alluded to a survey plan J061A/76 and a composite plan J030/86, which he claimed that he had commissioned a licensed surveyor to prepare for him. Though the case at trial was adjourned for him to produce these documents, yet he failed to make them available to the court before the trial was concluded with the delivery of the judgment of the trial Judge.

The respondent, though only a defendant has no burden to prove anything as required of the appellants who were the plaintiffs at the trial, yet where as in this case he is alleging that he is the owner of a vast area of land allegedly in the same area as the land in dispute, then he ought to establish the identity of the land by a survey plan of the land he is claiming. See A.W. Elias v. Alhaji B. A. Suleiman (1974) NMLR 193; (1973) 1 All NLR (Pt. 2) 282; (1973) 12 SC 113. Now, though there is no law or practice which established that a plan is a sine qua non to identify land being claimed, yet there must be some clear description to make a disputed land ascertainable. The acid test on the sufficiency of such proof is whether a surveyor taking the record of proceedings, can produce a plan showing accurately the land to which title has been given. See Ate Kwadzo v. Kwasi Adjei (1944) 10WACA 274; Arabe v.Asanlu (1980) 5-7 SC 78; Okedare v.Adebara (1994) 6 NWLR (Pt. 349) 157. In the case in hand, the evidence on record given by the respondent at page 141 of the printed records reads: –

“I do not know the acreage of the land of Olarokon family all I can say is that it is a large track of land.”

Having regard to the observation made above with regard to the acid test required in such circumstances, it is my considered view that a licensed surveyor cannot be expected to draw a plan of the respondent’s land upon such evidence as above. It follows that I must hold that the respondent did not prove the identity of the land that he is claiming as his in this action.

Apart from the failure of the respondent to prove the identity of the land he is contending as his own, it is also necessary to consider whether he properly pleaded in his statement of defence how the land devolved on him from his ancestors. Moreso, as the court below had in passage of its judgment quoted earlier, observed that the ‘learned trial Judge failed to make specific findings of facts upon the ample evidence produced at the trial by both parties. True enough, the respondent gave some evidence at the trial with regard to how he inherited the disputed land from his ancestors. But the question is, whether by his pleadings in his statement of defence, it can be said that he can properly give such evidence in support of his case that he became the owner by inheritance from his ancestors. It is in this con that reference must be made to paragraph 7 of the respondent’s statement of defence, where the respondent pleaded thus:

“The defendant avers that his great grandfather Olarokun who migrated from Iga-Iloti in Otta, settled on this land very many years, cultivated and superintended (sic) the land throughout his life time without let or hindrance until his death when he left him surviving to the estate his five children: Osholesi, Agbaosi, Adejiyan, Aiyelabi and Onumi, who inherited the vast area of land by Yoruba native law and custom. They cultivated managed and superintended (sic) the land without any hindrance from any source whatsoever until they all died leaving the land to their children who inherited same.”

It is no doubt a settled principle of our law that parties are bound by their pleadings. It is also the duty of counsel to object to inadmissible evidence, but if despite this, evidence is still, through an oversight or otherwise admitted, then it is the duty of the court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted. The court must also not admit evidence which is contrary to the pleadings of the party who adduced such evidence. And where such evidence escapes the scrutiny of the courts below, then an appellate court seised of the case must reject such evidence and decide the case of the appeal on legal evidence. See James v. Mid-Motors (Nig.) Co. Ltd. (1978) 11-12 SC 31; Alade v. Olukade (1976) 2 SC 183; National Investment and Properties Ltd. v. Thompson Organisation Ltd. & Ors. (1969) 1 NMLR 99 at p.104; Emegokwue v. Okadigbo (1973) 4 SC 113. Having regard to the principles set out above, the question then is whether the evidence the respondent gave with regard to how the land devolved upon him from his ancestors could be considered as legal evidence to determine the case.

Paragraph 7 of respondent’s statement of defence, which showed the averments of the respondent on this point, has been set out above. I have also reviewed the evidence of the respondent wherein the respondent stated inter alia that the land was founded by his great grandfather in 1834 and went on to relate how the land devolved on him through one Abudu Orowolo who he described as his own father. A careful perusal of paragraph 7 of the respondent’s statement of claim referred to above show that the evidence given by the respondent was not pleaded. That is apart from the fact that the averments made in the said paragraph did not trace how the property devolved on the respondent as claimed. The effect then of this defective pleading having regard to the settled principles that evidence at variance with the pleading is that the evidence of the respondent in relation to how the property devolved on him must be rejected. In my humble view, if the court below considered the evidence of the respondent in this light, it would have concluded that the evidence of the respondent is not legal evidence for the purpose of deciding the case.

From what I have said above, the conclusion that must be reached is that at the trial, the respondent did not make out a case to challenge the claim of the appellants. This is because he failed entirely to prove the identity of the land, which he is claiming as against that of the appellants, nor did he lead legal evidence in support of how he became seised of the land. It is therefore my view that it would not be proper and indeed it will amount to allowing the respondent to have a most undeserving second chance to reconstruct his case with a better defence. The justice of this case demands that an order of retrial was not proper in the circumstances. The court below having allowed the appeal, the proper order should have been one upholding in its entirety claims of the appellants. I will therefore hold that the court below fell into error in ordering that the case be re-heard de novo. The justice of his case demands that an order of retrial was not proper in the circumstances. I will therefore hold that the court below fell into error in ordering that the case be re-heard de novo. In the result, issues (1) and (2) are resolved in favour of the appellants.

On issue 3, it seems clear from the argument set out in the brief of the respondent that the thrust of the contention of learned counsel for the respondent is that the 1st appellant cannot be granted title to the disputed land as she failed to lead evidence to prove how the vendors in exhibit B became seized of the disputed land. It is also argued that as the 1st appellant had passed her title to the 2nd appellant more than five years before the commencement of the action, the 1st appellant cannot be granted her claim to the title of the land. And as there is no claim for declaratory title to the land in favour of the 2nd appellant, such a grant cannot also be made in favour of the 2nd appellant. In support of her contention, two cases were specifically cited. They are Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745 at pages 753-754 and Bamgboye v. Olusoga (1996) 4 NWLR (Pt. 444) 520. These two cases would be examined briefly if only to show whether they are distinguishable from the instant case as argued by learned counsel for the appellants. In Ogunleye v. Oni (supra) the appellant as plaintiff in the High Court of Oyo State, took out a writ claiming the sum of N25,000.00 from the defendant/respondent for the act of trespass on a piece of land at Osu by the defendant. The appellant based his claim on two premises, to wit, native law and custom and on statutory Certificate of Occupancy granted him by the Governor of Oyo State on the 27th day of June, 1983. The defendant/respondent in his pleading resisted the appellant’s claim. And pleaded inter alia, that the land belonged to him as he had inherited it following the death of his father on November I5, 1947. At the conclusion of the trial, the learned Judge upheld the claims of the plaintiff/appellant. The defendant/respondent appealed successfully to the Court of Appeal. The plaintiff/appellant then appealed to this court and lost. In the judgment delivered by this court in that case per Belgore, JSC he quoted with approval the following passage from the judgment of Ogundare, JCA (as he then was) at pp. 768-769. It reads: –

“What was required to be resolved, said he, was not who had a better grant but who had a better title. The plaintiff it was held, had failed to establish a better title than that of the defendant, the main burden that rested on him as complainant. The judgment of this court by Fatayi-Williams, JSC (as he then was) in Amakor v. Obiefuna (1974) 1 All NLR (Pt.1) at page 128 saying:

Generally speaking as a claim of trespass to land is rooted in exclusive possession, all a plaintiff need to prove is that he has exclusive possession, of the land in dispute. But once a defendant claims to be the owner of the land in dispute, title to it is put in issue, and, in order to succeed, the plaintiff must show a better title than that of the defendant.

was relied upon by the Court of Appeal.”

In Bamgboye v. Olusoga’s case (supra) the appellant commenced action for a declaration of title on a piece of land. He also claimed for trespass in the alternative. The appellant’s case was that he purchased the land in dispute from Ajao family whose ancestor, Ajetola Ajao, had earlier purchased same land from the Alago-Asalu family. A deed of conveyance was executed in favour of Ojetola Ajao. Appellant claimed that he went into possession in 1955 and in 1957 fenced the land in dispute and farmed thereon. The land was conveyed to him in 1957. In 1974, he granted permission to Mr. Onitiri to erect a mechanic workshop there. Mr. Onitiri was on the land until 1976 when the respondent came on the land, destroyed Onitiri ‘s structures thereon and appellant’s fence.

The case of the respondent was that the land belonged originally to the Otemniya family and was sold to the respondent by the family in 1976. As trial Judge found that the appellant did not prove due execution of the Deed of Conveyance from Alayo Asalu family to Ojetola Ajao, the appellant’s title to the land in dispute was not established. He appealed unsuccessfully to the Court of Appeal. But on further appeal to this court, he succeeded in part. This court per Belgore, JSC, who delivered the leading judgment, upheld the claim of the appellant that he was in possession of the disputed land at least since 1955.

But in rejecting his claim for declaratory title to the land held at pages 530-531 of his judgment said thus: –

“….. .the plaintiff must first prove his case as to title. However, whenever title is claimed through a grant or inheritance there must be clear traditional history of how the family or community came on the land and this must be done through clear pleadings and evidence in support of genealogy as continuous exclusive possession. Without this stating just simply that a grant is from a family without more may not be enough Alade v. Awo (1975) 4 SC 215; Piaro v. Tenalo and Ors. (1976) 12 SC 21, 41.”

Though learned counsel for the appellants has asked that the above cases are distinguishable from the instant appeal, yet he has not in his brief suggested what factors distinguished them. But what is manifest in the two cases whose facts and the decisions of this court I have reviewed above have in my view a bearing upon the case on appeal. But it is my view that the two cases serve to emphasize that where two parties are contending for a piece of land, the court have the duty to determine the party that has established a better title to the land. From the argument of learned counsel for the respondent, it seems clear that it is conceded that the 1st appellant’s claim for a declaration as the owner of the statutory right of occupancy to the disputed land rests mainly on the documentary exhibits. These are exhibits ‘A’, ‘B’, ‘C’, ‘D’ ‘F’, ‘G’, ‘H’ that were admitted at the trial. Hence the submission that the 1st appellant must go further to prove how the original party who made the grant came to be in possession of the property. Earlier in this judgment, I have made reference to exhibit ‘B’, the deed of conveyance dated 10/3/11 with which the entire land, of which the disputed land forms a part, was conveyed to the testator, late Mr. Frederick Ephraim Williams and father of the 1st appellant. It is also in evidence that a Deed of Assent was made on the 5th day of July, 1977 between the Public Trustee Lagos State as the trustee of the estate of Frederick Ephraim Williams of the one part and Mrs. (hereinafter called “The Trustee”) by which the property in dispute was conveyed to the 1st appellant. This Deed of Assent dated 5th day of July, 1977 pursuant to an order of the High Court dated 29th day of May, 1961 in suit No. M/18/61 where it was ordered that the said property be apportioned amongst the beneficiaries. Thus the 1st appellant was vested as the owner of the disputed property described as plot No. 14 in the estate of the testator at Iju Railway Station, Iju, Ikeja Division in Lagos State.

Now it is settled law that the production of documents of title is one of the five recognised ways by which a plaintiff may prove ownership of land. See Idundun v. Okumagba (1976) 1NMLR 200. Such documents of title must be duly authenticated in the sense that their due execution must be proved, unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents 20 years old or more at the date of contract. As the above statement on the proof of ownership of land is more fully set out in s. 130 (formerly s. 129), Cap. 90, Laws of Nigeria Evidence Act, the provisions of said section will be set out hereunder: –

“Recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments, Acts of the National Assembly, or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descriptions.”

The applicability of the above provisions appeared unsettled until the case of John Kobina SeysJohnson & Ors. v. Irene Ayinke Lawanson & Anor (1971) 1 All NLR 56, Coker, JSC delivering the judgment of this court held at page 67, thus:-

“We hold therefore that a deed to be competent for the presumption contemplated by section 129 of the Evidence Act must be 20 years old “at the date of the contract” and not 20 years old at the date of the proceedings at which such a deed is being offered in evidence.”

Turning to the case in hand, it is manifest that exhibit B was executed on the 10th day of March, 1913. It is also clear that the property in dispute was apportioned to the 1st appellant by the Order of court dated 29th day of May, 1961 and the Deed of Assent, exhibit was executed on the 5th day of July, 1977. It is evident that either of the two dates referred to above could be the dates of the contract which vested the 1st appellant with the ownership of the disputed land. This is because, on the 29th of May, 1961, the Order of court for partitioning the property of the testator was made. The Deed of Assent made on 5th July, 1977 between the Lagos State Public Trustee and the 1st appellant being the contract, which vested the 1st appellant with the disputed property. Now, exhibit B, the Deed of conveyance which was executed in 1913 is certainly more than 20 years old at the date of the contract. It follows that the presumption contemplated by section 130 (formerly s.129) of the Evidence Act is applicable to exhibit B. And as the respondent did not in any way challenge in rebuttal of the recitals in exhibit B, I must hold that the 1st appellant proved that her father, Mr. Frederick Ephraim Williams was the owner in fee simple free from encumbrances of the total land he bought from his vendors. I also hold that the 1st appellant is also the owner in fee simple free from encumbrances of that portion of it that was apportioned to the 1st appellant.

With regard to the question about whether exhibit ‘B’ was duly authenticated, the answer to that lies in s.123 of the Evidence Act which reads:

“Where any document, purporting or proved to be twenty years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.”

See Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) 1 at page 20.

Earlier in this judgment reference was made to the sale of the disputed land by the 1st appellant to the 2nd appellant. The Purchase Receipt Agreement, exhibit E made on the 22nd day of January, 1978 was executed between the two parties. With that agreement, the 2nd appellant entered into possession on the disputed land. In exercising his right of possession, the 4th P.W., the Managing Director of the 2nd appellant commissioned the Surveyor, P.W.2 to survey the land. Having regard of the sale to the 2nd appellant and the consequent possession of the disputed land as being clearly made out in the printed record, the 2nd appellant therefore acquired an equitable interest in the property capable of being converted to a legal state by specific performance. See Ogubambi v. Abowaba (1951) 13 WACA 222 at 224; Owoshe v. Idowu (1959) SCNLR 529; Fakoya v.St. Paul’s Church, Sagamu (1966) 1 All NLR 74; Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) 1; Tewogbade v. Obadina (1994) 4 NWLR (Pt. 338) 326 at 356.

The next question that must be considered is whether it was established that the appellants had exclusive possession of the disputed land. In the course of his judgment, the learned trial Judge reviewed the evidence as it affected the appellants thus: –

“In the plaintiffs case Frederick Williams died in 1918 appointing 2 executors and trustees of his last will and testament. The 2 trustees did not agree between themselves and after a protracted litigation in suit No. P21/1918 the court made an order on the 11.3.47 to transfer this estate to the Public Trustees a period of almost 29 years. In 1961 the Public Trustees by an Order of court in suit No. M/18/61 was made to partition the estate among the beneficiaries. See Order of 29.5.61. This is another period of 14 years of which no evidence as to possession and use. The plaintiff only visit (sic) the land in dispute only once or twice in 1933 and he had recognised the present (sic) of a village on the land when she first visited this land although under re-examined (sic) she called the people she found there as caretaker and found hurts (sic) built on the land and she said nothing more. Can this be called exclusive possession.”

But in the review of the evidence above, the learned trial Judge failed to include the evidence of the 2nd PW., the licensed surveyor who deposed thus:-

“I know the 2nd plaintiff in this case. Sometimes in 1981 the Managing Director 2nd plaintiff gave me an instruction to re-establish some beacons of parcel of land which he gave an existing survey plan attached to a Deed of conveyance. The Managing Director also instructed me to prepare the survey plan of the parcel land which has been re-established in the name of the 2nd plaintiff’s co. I carried out his instruction. I produced a survey plan to that effect. This is the survey plan I prepared on the instruction of the Managing Director of the 2nd plaintiff’s co in the 2nd plaintiff’s co name survey plan identified I AM exhibit “F” Mr. Ajibola no objection. In 1982, I was also instructed by the Managing Director of the 2nd plaintiff to divide the parcel of land into building plots which I carried out and prepared survey plan. This is the plan I put up in accordance with the instructions of the Managing Director of the 2nd plaintiff in 1982, tendered, admitted and marked exhibit ‘G’, Mr. Ajibola no objection. Sometime in 1984 the Managing Director of the 2nd plaintiff also informed me of the dispute arising over the parcel of land which I surveyed for the plaintiff and instructed to prepare a composite plan of the land in dispute having given me some Deeds of …….

And under cross-examination at page 51 he said:

“On the 1st occasion in 1981, I saw no one on the land. I did not see anything on the parcel of land now in dispute. There was a road motorable near the site but not very motorable. I do not know who made the road. There are some scattered crops, palmtrees not really nucle (sic). No building on the land in 1981.”

As a claim of trespass to land is rooted in exclusive possession, all a plaintiff need to prove is that he has exclusive possession. See Amakor v. Obiefuna (supra). The question that must now be considered is what could amount to exclusive possession to enable a plaintiff claim in trespass to land against a defendant. This is best illustrated by reference to some decided cases. In Murana Ajadi v. Madam Dorcas Olanrewaju (1969) All NLR 374 at 381, this court per Fatayi Williams, JSC (as he then was) quoted with approval the dictum of Lord Guest in Wuta-Ofei v. Mavel Danquah (1961) WLR 1238 (PC at p. 1243) which reads: –

“Their Lordships do not consider that in order to establish possession it is necessary for a claimant to take some active step 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 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 would be sufficient.”

And then went on to give reasons for holding that the plaintiff/respondent in Murana v. Madam Dorcas (supra) was in possession of the disputed land thus: –

“In the instant case, quite apart from the question of whether Lajide (2nd d/w) was the plaintiff/respondent’s caretaker or not, there is the evidence as to the location of the disputed land and the testimony of the plaintiff/respondent that she was not disturbed on the land until 1962 when she herself discovered the three survey pillars inside it. The totality of these pieces of evidence, to our mind, is indicative of possession of the disputed land by the plaintiff/respondent at the material time. Since the defendant/appellant who had no title to it had himself admitted being on the land with a surveyor, apparently without the authority of the plaintiff/respondent, the learned Acting Chief Justice was in order in finding him liable in trespass and also in making the order of injunction.”

Flowing from the authoritative pronouncements of this court referred to above, it is not in doubt that in order to found exclusive possession of land in favour of a plaintiff, this court is not bound by any particular mode of exercising the right to be in possession or to show that a plaintiff had been in exclusive possession of the disputed land. This is because each case must be considered upon its own facts. In the instant case, there is evidence that the 1st appellant went on the land as soon as plot 14 was apportioned to her. As part of her exercise by her to the possession of the land, she directed her nephew, the 3rd P.W. to source for a buyer for the land. The unchallenged evidence of this witness was that there was no one on the land when he went on the land on behalf of the 1st appellant. The 3rd P.W. also took the 4th P.W. to the land and that witness went on the land and satisfied himself that the land was vacant. Following his investigation, he duly purchased the land from the 1st appellant for the 2nd appellant. After the land was purchased by the 4th appellant, he as was given in evidence, which remained unchallenged, instructed the 2nd P.W., the licensed surveyor to survey the land. Here again his evidence was that he went on the land from as far back as 1981 and found no one on the disputed land. The survey plan of the disputed land, which was admitted as exhibit ‘F’ also remained as the unchallenged evidence of the identity of the land, claimed by the appellants. In response to all the pieces of evidence led on behalf of the appellants, the totality of evidence given by the respondent and which have been reviewed already, is that he became the inheritor of a vast area of land, the extent of which he did not know. And he did not assist his case by giving a coherent description of where this vast area of land is situate and lying. Moreover, he did not tender a survey plan for which he was granted adjournments by the trial court.

In the instant appeal as I have said earlier, the claim of the 1st appellant as pleaded in paragraph 14(a) of the statement of claim is for a declaration that she is the owner of a statutory right of occupancy to that piece or parcel of land lying and situate at Iju Railway Station, Iju “known and referred to as plot No. 14 in the estate of Fredrick Ephraim Williams.” In order to prove this claim, she pleaded the Deed of Conveyance, exhibit ‘B’, with which the entire land including her own plot 14 was conveyed to her late father and testator, Fredrick Ephraim Williams by the following people, Dada Agunwa, woodcarver, Ige Egun Oniye, farmer and Osiyomi Balogun, farmer.

In my humble view, the argument of the learned counsel for the respondent is misconceived that the 1st appellant could not be entitled to a declaration of title. This is because as argued above, the 1st appellant had only sold an equitable interest in the property to the 2nd appellant. The 1st appellant is still the owner of the legal estate in the property. Having regard to what I have said above, I am of the clear view that issue 3 must be resolved in favour of the appellants to the extent that they have succeeded in establishing exclusive possession to the disputed land. In the result, this appeal succeeds in its entirety and it is allowed accordingly.

The 1st appellant is granted the relief sought in paragraph 14(a) of the statement of claim. The 2nd appellant having succeeded with regard to the claim in paragraph 14(b) of the statement of claim is hereby awarded damages in the sum of N25,000.00. With regard to 14(c) of the statement of claim, an order of perpetual injunction is hereby made against the respondent, his agents and privies from entering into the disputed land, that is plot No. 14 lying and situate at Iju Railway Station in the Ikeja Division, Lagos State.

The judgment and orders of the court below are hereby set aside including the order that the case be remitted to the High Court of Lagos for retrial. The appeal having succeeded, they are entitled to their costs which I hereby fix as follows: N1,000.00 costs of the trial in the High Court and N10,000.00 costs of this appeal. The order made by the Court of Appeal for N1,500.00 as costs is also affirmed.

SC.135/1998