Ramonu Atolagbe V. Korede Olayemi Shorun (1985)

LawGlobal-Hub Lead Judgment Report

O.COKER

On the 2nd April, 1981, the Court of Appeal, Lagos Division, set aside the judgment of Oshodi J., of the Lagos State High Court, delivered on the 11th November, 1977, the relevant portion of which reads:-

“Having regard to the evidence before me, I am satisfied that while it is true that the plaintiff and the defendant are tenants of Ojora Chieftaincy family their respective interests relate to separate and distinct plots of land. They do not relate to the same plot of land. The defendant is the family’s tenant in respect of the plot of land at No. 104, Ezeagwu Street, Ajegunle measuring 50′ x 100′ on which he is now erecting a building. On the other hand the plaintiff is also the family’s tenant in respect of another piece of land at 118, Ezeagwu Street Ajegunle measuring 50′ x 80′.

I accept and believe the evidence of the Defendant’s first witness ALHAJI RASAQ OJORA the Supervisor of Ojora Family in the area where the two plots are situated. I find his evidence to be more impressive than that of the two witnesses of the family who gave evidence for the plaintiff.

I do not place any reliance on the two plans produced by the parties, Exhibit “A”, the survey plan produced by the Plaintiff is a copy of the original plan. It was said to have been prepared in 1965 but it was not countersigned by the Surveyor-General in accordance with the law at the material time. On the other hand, Exhibit “F”, the plan produced by the defendant was not pleaded and I have therefore decided to ignore it even though it was admitted in evidence without any objection.

The receipts produced by the parties themselves show that the Plaintiff’s plot is different from that of the Defendant.

I am satisfied that the Defendant did not go on the Plaintiff’s land. Rather, he is building on the plot of land which he got from the Ojora family.

In the result, I hold that the plaintiff has failed to establish his claims and the action is dismissed.”

The Court of Appeal, in allowing the appeal of the Plaintiff in a unanimous judgment delivered by Kutugi, J.C.A., stated after carefully considering the issue posed by the pleadings, and I quote:

“From the above, it is quite clear that the learned trial judge was in error in admitting the evidence of other plots of land not being the land in dispute or claimed. And having admitted the evidence erroneously, he should have ignored it in his judgment.”

The Court of Appeal then went on to find that:-

“The learned trial judge failed to evaluate all these evidence because of the view he erroneously took that the appellant was claiming a different land from that of the respondent. But in such circumstances, this Court is entitled to evaluate that evidence which I have done.

(See Omoregbe v: Edo (1971) 1 All N.L.R. 282)

I am therefore satisfied that in the light of the evidence adduced in the court below by the parties, the appellant had proved his claim to warrant judgment being entered in his favour for damages for trespass and an injunction. I am equally of the view that the learned trial judge was in error in dismissing the appellant’s claim as he did. The appeal therefore succeeds and it is allowed. The judgment of the learned trial judge (ashodi J.) including order to costs is accordingly set aside, and in its place I order as follows:

(1) “Five hundred Naira (N500.00) as general damages for trespass committed by the respondent on the appellants land at Ezeagwu Street, Ojo Road, Ajegunle, Apapa.

(2) Injunction restraining the respondent, his servants, agents and privies from further acts of trespass on the appellant’s land at Ezeagwu Street, Ojo Road, Ajegunle Apapa.

The appellant is awarded costs assessed at N150.00 in the court below and N250.00 in this Court.”

This appeal is against the decision and the main point (or decision before this Court is whether on the pleadings the identity of the land in dispute granted to the Plaintiff by the Ojora Chieftaincy Family in 1963, was the issue in the case.

It is perhaps pertinent at this stage to bear in mind the duty of a Court of Appeal in the circumstance of the case. The principles on which it ought to act are as stated in Alhaji Akibu v. Opaleye & Anor. (1974) 1 All N.L.R. 344 at p. 356, when this Court said:-

“Although this Court rehears a case on appeal it does this only on the records and, where it is quite clear that evidence has been led in the lower Court which establishes a fact, it will make the necessary finding which the lower court failed to make: Thomas v. Thomas (1947) A.C. 484, at pp.487-488 also Faloyinbo v. Williams (1956) 1 F.S.C. 87. It is open to this Court to decide such issue.”

Another relevant point in this appeal is a customary tenant’s right to continue possession during the subsistence of the tenancy. In Lasisi & Anor. v. Tubi & Anor. (1974) 1 All N.L.R. 438 at p. 44] this Court stated:-

“We wish to begin by emphasizing the fact that, under our law, the customary tenant enjoys a most enviable position. Once in possession, he is always in possession: for time does not run against him.

It is settled law that the possessory right of a customary tenant goes on and on, in perpetuity, unless and until the tenancy is forfeited.”

It is therefore obvious that, neither the overlord, nor his successors-in-title, could dispossess a customary tenant, except it be by means of an action for forfeiture. It is, of course, always open to the customary tenant to abandon his tenancy if he so desires, but that is another matter. “The customary tenant pays tribute and enjoys perpetuity of tenure subject to good behaviour, which means in practice that he may forfeit his holding only as a result of an order of court for forfeiture at the instance of the customary landlords.

It therefore follows that, whoever deludes himself into purchasing the overlord’s radical title will soon discover that he has to take the land as he finds it. Such purchaser might have acquired title, but never in the least, possession which, at all times, is reposed in the customary tenant until forfeited.” See also Ojomu v. Ajao (1983) 2 Sc. N.L.R. 156 p. 166.

The primary function of pleadings is to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them. It is designed to bring the parties to an issue on which alone the Court adjudicates between them. The law reports are replete with decisions dating very many years back, that a party is bound by his pleadings and cannot go outside it to lead evidence or rely on facts which are extraneous to those pleaded. See Alhaji Karimu Lemomu & Ors. v. Hadji Noah Alli-Balogun & Ors. (1975) 1 All N.L.R. 30 at p. 40, for other decision cited in the judgment; and particularly, where it stated:- “We have pointed out on a number of times that the evidence in respect of matters, not pleaded really goes to no issue at the trial and the Court should not have allowed such evidence to be given.”

I shall now proceed to examine the pleadings in order to discover whether the identity of the plot of land at Ezeagwu Street, Ajegunle, Apapa which the plaintiff claimed was granted to him in 1963 was the issue in controversy.

The Plaintiff’s case was predicated on the averments in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 17 of the Statement of Claim which read:-

“3. The land in dispute – hereinafter referred to as “the said land” forms a portion of a large tract of land which belongs to OJORA CHIEFTAINCY FAMILY from time immemorial under the Customary Law and edged “RED” in the Survey Plan dated the 28th day of September, 1965exhibited herewith.

4. The Plaintiff avers that sometime in the year 1963the said land was let to the Plaintiff by OJORA CHIEFTAINCY FAMILY at an annual rent of ‘1pounds now N2.00.
5. The Plaintiff paid the first annual rent of (1pounds) N2.00 on the 3rd day of January, 1963 and a receipt was issued to him by the OJORA CHIEFTAINCY FAMILY. Thereafter the Plaintiff continued to pay the rents.
6. Immediately after the payment of rent referred to in paragraph 5. supra he was let into possession of the said land – erected a fence round the land.
7. The Plaintiff avers that he had been in peaceful possession, continuous and physical possession of the said land fully exercising all overt acts of possession in and over the land.
8. The Plaintiff caused the land to be surveyed in the year 1965 by a Licensed Surveyor – MR. M. A. SEWEJE who produced the Survey Plan exhibited herewith-prepared a Building Plan and deposited cement Blocks on the land.
9. The Plaintiff did commence the building up to lintel () stage.
10. The Plaintiff avers that in the year 1965 two trespassers went on the land – and in Suit No.AJCCB/237/65 – KOREDE SORUN VERSUS /SSA & TAOFIK judgment was entered against the said trespasser for damages and injunction.
11. Sometime in November, 1976 Plaintiff on information received proceeded to the land in dispute with his brother ADEOTI SHORUN where they saw the Defendant with his workmen’ damaging the fence and cement blocks on the said land.
12. The Plaintiff protested and warned off the Defendant and the workmen.
13. Later the Defendant went again on the land with some thugs carrying dangerous weapons. – The thugs warned the Plaintiff and asked him to stay on the said land at his own risk.”

The following paragraphs of the statement of defence are relevant to the issue:-

“2. The Defendant denies paragraphs 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, and 17 of the Statement of claim.

“3. The defendant is not in position to admit or deny paragraphs 3 and 10 but puts the Plaintiff to the strictest proof thereof.

“4. With further reference to paragraph 4 of the Plaintiffs statement of Claim the Defendant avers that if ever, plaintiff was a tenant of the Ojora Chieftaincy Family the alleged relationship of Landlord and Tenant was determined by the said family who in fact evicted the Plaintiff from possession.

“5. With further reference to paragraph 9 of the Statement of Claim the defendant avers that when the Ojora Chieftaincy Family let the land to him on the 18th day of August, 1974 there was no structure whatsoever on the land. It was a vacant land.

“6. The defendant avers that the land in dispute was let to him by the Owners thereof in August, 1974 and will rely and tender at the trial of this Suit rent receipts and other relevant documents relating to the land issued by the Ojora Chieftaincy Family in favour of the Defendant.

“7. The defendant avers that the said Ojora Chieftaincy Family put him in vacant and effective possession of the said land.

“8. The Plaintiff has no right, possessory title or interest in the said plot of land and that he cannot in law maintain an action in trespass against the Defendant.

“9. WHEREUPON THE defendant denies that the plaintiff is entitled to his claim and that the claim be dismissed.” (Italics mine).

The statement of defence did not specifically or by necessary implication say that, the plot of land granted to the Plaintiff in 1963 was different from that granted to him and in dispute in this case. It was therefore not an issue for trial by the trial judge.

See Jacob Ibanga & Ors. v. Chief Edet Usanga (1982) 5 S.C. 103 pp. 124-125 Yakassai v. Incar Motor (Nig). Ltd. (1975) 1 All N.L.R. (p.8.1) 287 is authority for the proposition that it is wrong for the Judge to base his decision on an issue which was never raised in the pleadings. Throughout, the Statement of Defence spoke of the land in dispute referred to in the Statement of Claim. The defence was that the relationship between the plaintiff and the defendant had been determined by the Ojora Chieftaincy and the plaintiff had been lawfully ejected from the said plot previously granted to him in 1963, and that the said landlord had lawfully regained possession before he, the defendant, was put in possession of the said plot at Ezeagwu Street in dispute.

In this connection, I recall the words of Idigbe, J.S.C. in Lewis & Peat (N.I.R.) Ltd. v. Akhinmien (1976) 1 All N.L. R. 460 where he stated the law as follows at p. 465 from line 23:

“In order to raise an issue of fact in these circumstances there must be a proper traverse; and a traverse must be made either by a denial or non-admission either expressly or by necessary implication.

So that if a defendant refuses to admit a particular allegation in the Statement of Claim, he must state so specifically; and if he does not do this satisfactorily by pleading thus: “defendant is not in a position to admit or deny (the particular allegation in the statement of claim) and will at the trial put the plaintiff to proof” As was held in Harris v. Gamble (1878) 7 Ch. D. 877; “defendants puts plaintiff to proof” amounts to insufficient denial; equally a plea that the “defendant does not admit correctness” (of a particular allegation in the Statement of Claim) is also an insufficient denial- see Rutter v. Tregant (1879) 12Ch. 0.758.

We are of course, not unmindful of the first paragraph of the statement of defence. Nowadays almost every statement of defence contains such a general denial (see Warner v. Sampson (1959) 1 Q.B. 287 at 310-311). However, in respect of essential and material allegations such a general denial ought not be adopted: essential allegations should be specifically traversed (see Wallerstein v. Moir (1974) 1 W.L.R. 991 at 1002 per Lord Denning M. R.”

The italics are mine for emphasis. The point in that case was that the Plaintiffs in the Statement of Claim averred in paragraph 1 that they “were a trading Company registered in Nigeria” and in paragraph 3 of the Statement of Defence it was pleaded that “the defendant was not in a position to admit or deny paragraphs 1 and 2…”

The trial judge dismissed the Plaintiffs’ claims on the ground that they failed to prove that the Company was registered because the Certificate of Registration was not produced in evidence at the trial. The trial judge was of the view that the averment in paragraph 3 of the Statement of Defence was an implied denial of the averment in paragraph 2 and therefore raised an issue that must be proved by production of the Certificate of registration. The Supreme Court, reversing the decision of the trial Court, held the view that the averment in the Statement of Defence did not raise the issue that the Plaintiffs were a registered Company.

The Court held that the denial must be specific and clear in order to raise the issue whether the plaintiffs were a registered Company. The rule is that pleadings are not to be considered as a game of skill between the advocates. They ought to be so framed as not only to assist the party in the statement of his case but the Court in its investigation of the truth between the litigants. Bairamian, J.S.C., in George & Ors. v. Dominion Flour Mills Ltd. (1903) 1 All N.L.R. 71 said at p.77:

“The fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard, but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met, which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings, and saves either side from being taken by surprise The Plaintiff will and indeed must confine his evidence to those issues; but the cardinal point is the avoidance of surprise.”

See also T. Lawai Owosho & Ors. v. Michael Adebowale Dada (1984) 7 S.C. 149 at 164 where Aniagolu, J .S.c., said that “the rules of pleadings do not allow a defendant to be hedgy and evasive in his answers to the facts directly – either by admitting or denying them ….. he is taken to have admitted them.”

The statement of defence in this case gave no indication whatsoever of the defence that the plot in dispute was not the same as that granted to the Plaintiff in 1963, or over which he litigated in 1965 or that it was different from that granted to him in 1976. There was even no evidence on which the trial judge could have arrived at that decision. On the contrary, plaintiff pleaded and adduced evidence by himself that the plot in dispute was that granted to him in 1963. Neither 1st D.W. nor the Defendant had any personal knowledge of the particular plot of land at Ezeagwu Street, Ajegunle. 1st D.W., whose evidence the trial judge believed became a supervisor of the family land in the area only in 1973. Before then, he never knew the Plaintiff nor the plot granted to him. He saw him for the first time in Court and although he could identify the signatures on the plaintiffs’ rent receipts (Exhibits CI-C3) as those of the accredited agents of the Family at the material time, the receipts bore no numerical description of the plot nor No. 118 Ezeagwu Street, Ajegunle as the trial judge found. The particular plot was not said to be within a layout scheme to enable anyone to identify it. The Surveyor, Seweje, who surveyed the plot in 1965 testified that the plot he surveyed in 1965 for the plaintiff was the same in the present proceedings. The result is that the basis on which the trial judge dismissed the plaintiff’s claims was not supported by any admissible evidence. The trial judge did not find nor could he have found, as pleaded in paragraph 4 of the Statement of Defence, that the relationship of landlord and tenant between the Ojora Chieftaincy Family and the Plaintiff had been determined or that he had been evicted from his holding. It follows therefore that the defendant was a trespasser and his entry on the land was therefore wrongful. See Goddy Umeobi v. Chief A. E. Otukoya (1978) 4 S.C. 33 p.54 and Amakor v. Obiefune (1974) 1 All N.L.R. 119 at p. 127, Lasisi & Anor. v. Tubi & Anor. 1 All N.L.R. 438 p.441 and O. Solomon & Ors. v. A. R. Mogaji (1982) 11 S.C. 1 p. 37.

The above reason is sufficient to dismiss his appeal. But I shall consider the other a points raised by Chief Alokolaro, even though I have already considered them. I have expressed the view that the Plaintiff and his witness gave positive evidence that the same plot granted to him in 1963 was the subject matter of the dispute in this action- as in the 1965 suit. The defendant adduced no admissible evidence to challenge this fact. The point of contention of learned Counsel for the Appellant in his brief that Respondents 3rd witness Mr. Peter Jackson, testified that the plots relating to Exhibit C-C3 and D and D1 are different plots. This is not correct.

The witness specifically stated that “I know the Plaintiff. One Mr. O. A. Alara took me to the land in dispute at Ezeagwu Street, Ajegunle….. I went to O. A. Alara our collector for Ojora Chieftaincy Family” and added “Exhibits C and C3 were issued by family to the Plaintiff’ and that he does “not know the Defendant.”

The witness admitted that he had no personal knowledge of the tenants and that he only signed receipts and, the family, for the purpose of identifying the land, relied on the Agents – the site men, who were at the material time Alhaji Jimoh Akindele and Mr. O. A. Alara. The trial judge was therefore in error in holding that the plot granted to the Plaintiff was No. 118 Ezeagwu Street, Ajegunle and not 104 Ezeagwu Street, Ajegunle. The identity of the land in dispute was known to the parties and not in dispute, and no plan was therefore necessary. See Chief Y. Abiodun v. Chief D. Fasanya (1974) 1 All N.L.R. at p254 p. 269.

The last point of contention in the brief was that the court below erred in granting the Plaintiff an order of perpetual injunction – a relief which plaintiff did not claim and led no evidence. This contention has no substance. One of the reliefs endorsed on the writ of summons was an order for injunction. In paragraph 18 of the statement of claim, the reliefs sought were by reference to the writ of summons. The plaintiff in his testimony said he was claiming as per the writ of summons. The evidence on record and the whole tenor of the proceedings revealed the intention of the defendant to continue with his acts of trespass.

He commenced the building operations after demolishing the uncompleted structures erected by the Plaintiff; notwithstanding warnings and not until an order of interim injunction was made against him by the trial Court did he suspend the building operations. Immediately after judgment of the trial Court he resumed the building operations with remarkable speed until completion.

He had since put tenants therein even though he was aware that an appeal was pending. The order for injunction was therefore necessary and proper. Chief Alokolaro has further contended that the Justices of the court of Appeal misdirected themselves in reversing the decision of the trial Judge. He referred to exhibit B in the judgment of the Customary Court, which Plaintiff tendered in support of his possession of the plot in dispute. He argued as before, that Exhibit B related to a different plot and that Exhibit A, the plaintiff’s survey plan, was inadmissible, since it was not countersigned by the Surveyor General of Lagos State a, required under s.3(1)(b) of the Survey Law, Cap 132 Vol. 7 of Lagos State.

While I agree that the plan was rightly ignored by the trial judge in his judgment and while it is correct that references were erroneously made in the lead judgment of Kutigi, J.C.A., and the concurring judgment of Nnaemeka-Agu. J. C. A. I cannot see how the error affected the decision of that Court. The trial Court rejected both plans. The basis of the decision was different, and I have held that the identity of the land was not in issue at the trial. The admissibility of the plans as irrelevant. Consequently the error of the court below did not affect the correctness of its decision.

As regards Exhibit B – the proceedings in the Customary court – the Plaintiff himself gave uncontradicted evidence that the plot of land which was the subject matter of the dispute was the same as in this case. His evidence was not challenged under cross-examination. His Surveyor, Seweje, also testified in support. The two agents of the family who knew about the transaction between.the plaintiff and the family also testified to the same effect. But more important, it was not an issue in the proceedings. Exhibit B was pleaded in paragraph 10 of the Statement of Claim as the plot of land granted to Plaintiff in 1963 that was the cause of action in 1965 and also in this Suit. That fact was not denied in the statement of defence, and the evidence of the plaintiff in support throughout remained unchallenged.

For the above reasons, I have come to the decision that the appeal has no merit and should be dismissed and I so order. The decision of the lower Court is hereby affirmed, together with the order for costs. The Respondent is entitled to the costs of this appeal fixed at N300.00

A. O. OBASEKI, J.S.C. (Presiding): I have had the privilege of a preview of the judgment just delivered by my learned brother, Coker, JSC. I agree with him and I adopt his opinion on the issues raised before us in this appeal.

The questions for determination in this appeal are three fold:

(1) was the issue as to the identity of the land in dispute raised on the pleadings filed in Court and exchanged by the parties

(2) was the Court of Appeal justified in disturbing the findings made by the learned trial judge’

(3) was the claim for perpetual injunction available to the respondent on the pleadings and evidence

According to paragraph 3 of the statement of claim

“the land in dispute – hereinafter referred to as “the said land” forms a portion of a large tract of land which belongs to Ojora Chieftaincy family from time immemorial under the customary law and edged “Red” in the survey plan dated the 28th day of September, 1965 exhibited herewith”.

The defendant did not put up a specific traverse of this paragraph as is required by the Rules of Pleading [see Order 16 Rule 9 of the High Court of Lagos Civil Procedure Rules]. Instead, the defendant pleaded in paragraph 3 of the statement of defence that:

“The defendant is not in a position to admit or deny paragraphs 3 and 10 but puts the plaintiff to the strictest proof thereof.”

and in paragraph 6 of the statement of defence, that:

“The defendant avers that the land in dispute was let to him by the owners thereof in August, 1974 and will rely and tender at the trial of this suit, rent receipts and other relevant documents relating to the land issued by the Ojora Chieftaincy family in favour of the defendant.”

The plaintiff had in paragraph 4 of the statement of claim (which was denied by the defendant in paragraph 2 of his statement of defence) pleaded that:

“The plaintiff avers that sometime in the year 1963 the said land was let to the plaintiff at an annual rent of ‘a31.’, now N2.00″

In paragraphs 5 and 6 of the statement of claim, the plaintiff pleaded that:

5.The plaintiff paid the first annual rent of (1 pounds.) N2.00 on the 3rd day of January, 1963 and a receipt was issued to him by the Ojora chieftaincy family thereafter the plaintiff continues to pay the rents.

6. ‘Immediately after the payment of rent referred to in 5 supra, he was let into possession of the said land – erected a fence round the land.”

Instead of challenging the identity of the land by his pleadings, the defendant in paragraph 4 of the statement of defence, pleaded that the plaintiff was evicted from possession. The said paragraph reads:

“with further reference to paragraph 4 of the plaintiffs statement of claim, the defendant avers that if ever plaintiff was a tenant of the Ojora Chieftaincy family, the alleged relationship of landlord and tenant was determined by the said family who in fact evicted the plaintiff from possession.”

The issue before the Court was, as correctly identified by my learned brother, Coker, JSC., not one of identity of the land but one of whether the plaintiff/respondent had in fact been ejected by the Ojora chieftaincy family. An examination of the evidence and judgment of the learned trial judge produces a negative answer to this question and the failure of the defendant to discharge this onus is fatal to the case of the defendant. My learned brother has dealt so exhaustively with this issue that I need say no more except to refer to the authority or case of Lewis & Peat (MRI) Ltd. v. Akhimien (1976) 1 All NLR. 460 at p. 468. Unless a specific allegation of fact is traversed specifically, a pleading that ‘the defendant is not in a position to admit or deny’ is likely to be construed as placing no burden of proof on the plaintiff unless by implication from the other paragraphs of the statement of defence the averment can be taken a having been denied.

The answer to the second question for determination in this appeal is definitely in the affirmative. The failure of the learned trial judge to address himself to the issue raised on the pleadings and the evidence on record was sufficient justification for the intervention of the Court of Appeal and the disturbance of the findings made by the learned trial judge. This question has also been dealt with exhaustively by my learned brother, Coker, JSC.

The principles governing interference by Appeal Court with the findings of fact by trial court are so well settled to need or require elaborate mention. I will only refer to two of our latest decisions on the matter. See Chief Frank Ebba v. Chief Warri Ogodo & Anor. (1984) 4 S.C. 84; Okafor v. Idigo (1984) 1 SCNLR. 481.

The third question will also be answered in the affirmative. A claim for an order of perpetual-injunction was one of the claims endorsed on the writ of summons and incorporated in the statement of claim. Evidence was led and accepted that the plaintiff was in effective physical possession of the land when the trespass was committed. The defendant’s act of trespass including the destruction and removal of the plaintiffs own building cannot give the defendant lawful possession to relieve him of liability to pay damages for trespass and to be restrained by an order of injunction from committing further act of trespass.

For the reasons vividly expressed in the judgment of my learned brother, Coker, JSC., I too would dismiss the appeal and I hereby dismiss the appeal with costs to the respondent fixed at N300.00.

A. N. ANIAGOLU, J.S.C.: The draft of the judgment just read by my learned brother, Coker, J.S.C., was made available to me before now and I agree with his reasoning and conclusion.

I would not ordinarily go beyond the above statement of my general agreement with the judgment, but for the purpose of emphasis it is perhaps worth the while to comment on two issues in this appeal.

FIRSTLY, although the parties were admittedly tenants of the Ojora Chieftaincy Family, yet the issue was, on the pleadings and evidence, which of them was rightly entitled, as a grantee of the said Ojora Chieftaincy Family, to the land in dispute. There was one land in dispute over which the Appellant and the Respondent put forward conflicting and competing claims. The plaintiff/respondent’s claim was dismissed by the High Court; the Court of Appeal set aside the judgment and found for him. The defendant, who is now the appellant, then appealed to this Court.

Contrary to this central point on which issue was joined by the parties, both on the pleadings and the evidence the learned trial judge held in his judgment thus:

“Having regard to the evidence before me I am satisfied that while it is true that the plaintiff and the defendant are tenants of Ojora Chieftaincy Family their respective interest relate to separate and distinct plots of land. They do not relate to the same plot of land.

XXXXXXXXXXXX

I am satisfied that the Defendant did not go on the Plaintiffs land.” (Italics mine.)

If, indeed, there were two separate and distinct plots of land, possessed separately by each of the parties, as found by the trial judge, one would then ask what were the parties disputing about There would then be no dispute since each party would then be in peaceable possession of his own plot of land.

The finding clearly ran counter to the evidence and the pleadings, and was a finding based not on the case formulated by the parties, but on an imaginary case formulated by the trial judge on his own accord. The law does not permit such a deviation from principle (Dr. Nwafor Orizu v. Anyaegbunam (1978) 5 S.C. 1 at 36; Chief Ibongo v. Chief Usanga (1982) 5 S.C. 103 at 124). Each party gave evidence that he built on the land in dispute. The respondent accused the appellant of having demolished his building on the land and then erected his own. This was the basis for the plaintiffs claim in trespass and his demand for an order for injunction. The learned trial judge’s finding above presented a posture which was contrary to the issue between the parties.

The SECOND matter which 1consider deserves to be emphasized and which has a direct link with the FIRST is the question of the plan. As all of us who are familiar with land cases know, it is not always that a plan is necessary in a land case, or that the absence of a plan is fatal to the plaintiff’s case. The Federal Supreme Court in Alhaji Etiko v. Aroyewun (1959) 4 F.S.C. 129 -per Abbott, Ag. C.J.F. -would not allow the use of a plan by the trial judge – even if the use was wrong on the issue of the identity of the land in dispute – to vitiate the plaintiff’s/respondent’s claim “when there was ample other evidence identifying the land claimed with what the respondent bought”. The same view was taken by this Court in Ajide Arabe v. Ogunbiyi Asanlu (1980) 5-7 S.C. 70 in which at page 89, this Court stated that:

“….it may be pointed out that, although a licensed surveyor’s plan is the best, if available, yet the absence of it need not be fatal to the claim if proper description of the land is available in the record.”

The contention of the appellant was that the plan of the plaintiff/respondent, Exhibit A, was inadmissible; that the learned trial judge was right in holding it inadmisible by reason of Section 3(1)(b)(ii) of the Survey Law of Lagos State Cap.132 which forbids the admission of a plan in evidence unless, inter alia, it

“has been examined by the Survey Department and bears the countersignature of the Surveyor-General.”

Neither Exhibit A nor the appellant’s plan, Exhibit was, ex facie, counter-signed by the Surveyor-General. Respondent’s Counsel in reply to appellant’s Counsel’s contention pointed to the evidence of the plaintiff’s surveyor, one MERCELIN ANYUOTUE SEWEJE (P.W. 1), who testified at page 30 line 35 that

“Exhibit “A” was counter singed in January, 1966″.

I have seen Exhibit A. There is no countersignature of the Surveyor-General on it. But section 3(1) (b) (ii) aforementioned requires that the plan of the land as a pre-condition to its being admitted in evidence,

“bears the countersignature of the Surveyor-General”

The plan to be admitted in evidence is that one which bears that signature. It is not enough for a Surveyor to produce an uncountersigned plan and testify that a copy of that plan (not available) had been countersigned. Exhibits A and F were clearly inadmissible by reason of the said section 3(1)(b)(ii) of the Survey Law.

But the matter does not end there. Respondent’s Counsel also argued and correctly, in my view, that the land in dispute was never in doubt even before the trial judge who in the course of the proceedings made an order for interlocutory injunction in respect of the land, and that the parties were ad idem in their pleadings on the particular land in dispute. At no time, he said, was the identity of the land in dispute in issue before the trial court and before the Court of Appeal. I agree.

As I said before,I am in complete agreement that this appeal should be dismissed. I also hereby dismiss the appeal with costs to the Respondent assessed at N300.00

S. KAWU, J.S.C.: I have had the privilege of reading, in draft, the judgment of my learned brother, Coker, JSC which has just been delivered. I agree with him the appeal is devoid of merits and I hereby dismiss it and affirm the decision of the lower court. The respondent is entitled to costs which are assessed at N300.00

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SC.14/1984