Mogaji Lasisi Atanda & Ors V Salami Ajani & Ors (SC 197/1987)[1989] NGSC 45 (21 July 1989)

In The Supreme Court of Nigeria

On Friday, the 21st day of July 1989

SC 197/1987

Between

Mogaji Lasisi Atanda ....... Applicants

Alhaja Sifawu Ateju

Yesau Akanji

Jimoh Adisa

(For themselves and Adenko Aje Ojoku Family)

And

Salami Ajani ....... Respondents

Tijani Akarimu Iyanda

Alimi Adio

Oseni Taiwo

Judgement of the Court

Delivered by

Craig. J.S.C.

The plaintiffs claims in the High Court of Oyo State, holden at Ibadan were for:

1. Declaration of title according to Native Law and Custom to a piece or parcel of land situate at Isale Oje, Ibadan in Oyo State of Nigeria the boundaries of which shall be clearly shown in a survey plan to be filed in the action.

2. N 250.00 being general damages for trespass committed by the defendants, their servants or/and agents on the said land on or about July, 1972.

3. Injunction to restrain the defendants, their servant or/and agents from entering or committing further trespass on the said land.

Pleadings were filed and exchanged, and at the end of that exercise, the matter proceeded to trial before Ayorinde, J. After hearing evidence, the learned Judge held that both parties had a "semblance of title" to the land surrounding the land in dispute, but he dismissed the plaintiffs' claims because

they have not adduced convincing evidence of ownership to the whole area of land in dispute to the exclusion of others..

The trial Judge also held that the plaintiffs had failed to prove the identity of the land in dispute with certainty

The plaintiffs were dissatisfied with that judgment and appealed to the Court of Appeal, Ibadan.

That court, after hearing arguments dismissed the appeal and affirmed the judgment of the trial court. This is a further appeal against the decision of the lower court.

In this Court, the plaintiffs/appellants have lodged five original grounds of appeal, which I find to be extremely prolix, and I do not intend to reproduce them. However, these grounds appear to have been admirably incorporated in the five additional grounds of appeal which were filed and argued with the leave of this Honourable court. Those grounds are much more succinct and are as follows:

(1) The learned Justice of Appeal who delivered the lead judgment concurred in by the other Justices of the Court of Appeal, erred in law by holding at page 149 lines 3 to 6 of the Record that "the respondents joined issue with the appellants on the question of possession vide evidence of 1st D.W. and D.W.3," and thus came to a wrong decision in the case.

Particulars of Error:

(a) It is the principle of the rules of practice and procedure that issues are joined on the pleadings and not on the evidence adduced on behalf of the Defendants. The formulation of issues by a trial court, not based on the pleadings filed by the parties in a case may invalidate the judgment as laid down in the case of Veronica Graham & Ors. p. Lawrence Esumai & Ors. (1984)11 S.C. 123.

(b) The Appellants having established that their title originated from a rightful owner, namely, Balogun Oderinlo, the question of possession ceases to be a relevant issue in the case and it is a relevant issue only where the evidence of ownership is inconclusive as laid down in the case of Mumuni Abdulai v. Ramotu Manue (1944) 10 WACA 172.

2. The said learned Justices of Appeal erred in law when, without or any due consideration, they upheld the learned trial Judge's dismissal of the Plaintiffs' claims after the learned trial Judge had found, as admitted by the Defendants' witnesses that the original owner of the land in dispute was Balogun Oderinlo from whom they, the Appellants, claimed to have derived their title to the land as opposed to Delesolu from whom the Respondents claimed to have derived their own title.

Particulars of Error:

(a) The learned Justices of Appeal merely recited the arguments of the Appellants at Pages 146 to 148 of the Record and summarily dismissed them without due consideration.

3. The learned Justices of Appeal erred in law in holding at Page 148 line 30 to 34 of the Record thus:-

having failed to prove title by grant to the particular land in dispute, their other evidence being inconclusive and lacking, the law throws upon them the burden of proving acts of ownership.

whereas in a case of this nature in which the Appellants established their Succession to the land through an admitted lawful set-tier-owner of the land. The onus lay on the Respondents to dislodge that ownership by cogent evidence as laid down in Ricketts v. Shote (1960) L.L.R. 201 and Mahinmi v. Ladejobi (1960) L.L.R.233.

4. The learned Justices of Appeal erred in law when they held at Page 151 lines 6 to 12 of the Record that the Appellants failed to discharge the onus of proof on them by reference to the case of Kodilinye v. Odu 2 W.A.C.A. 336 when in law the principle enunciated in that case is not of relevance in this case.

Particulars of Error:

At Page 146 line 22 to Page 148 line 28 of the Record, the learned Justice set down the arguments of the Appellants as follows:-

The respondents in paragraph 5 of their statement of defence averred that the land in dispute forms part of the land granted by Delesolu to Bilekanle, the ancestor of the respondents but 1st D.W. (i.e. 2nd respondent) under cross-examination admitted that Oderinlo granted land including land in dispute to Delesolu originally. That being so, 1st respondent has failed to trace his radical title to Delesolu. In other words, the respondents by their tacit admission that Balogun Oderinlo was the radical owner of the land in dispute from whom they obtained their grant.

The learned Justices of Appeal erroneously dismissed these and other arguments on the ground of the Plaintiffs' "failure to adduce convincing evidence of exclusive possession of the land in dispute" contrary to the decisions in Mumuni Abdulai v. Ramotu Manue (1944)10 W.A.C.A. 172 and Ricketts v. Shote (1960) L.L.R. 201.

5. The learned Justices of Appeal erred in dismissing the appeal on the ground that "there was none to choose between the Appellants' as well as the Respondents' case" as per Page 151 lines 11 to 12 of the Record, and the learned trial Judge having found that the original settler-owner of the land including the land in dispute was Balogun Oderinlo from whom the Appellants derived their title, there was no room for holding that there was none to choose between the Appellants' case and the Respondents' case.

In his brief of arguments, Mr. Kehinde Sofola. S.A.N., has set out the following issues for determination:

(1) Whether the appellants are not entitled to succeed in their claim for declaration of title to the piece of land in dispute and to the other reliefs claimed, the learned trial Judge having found that the appellants proved their radical root of title in Balogun Oderinlo admittedly the first settler on the land, whilst the defendants failed to establish their root of title.

(2) Whether the learned trial Judge and the Court of Appeal were right to have permitted the respondents to found their claim to title to the piece of land On a grant from Balogun Oderinlo whereas in their pleadings they had alleged that they derived their title from Delesolu, and denied that the said Balogun Oderinlo was the settler on the land.

(3) Whether having found that the appellants derived their title from Balogun Oderinlo, it was nevertheless necessary for the appellants to establish evidence of recent user by them.

(4) The appellants having established that their title to the piece of land originated from the first settler and the rightful owner, Balogun Oderinlo, whether the respondents discharged the onus of proof laid upon them by law to dislodge the plaintiffs' claim.

(5) Whether the Court of Appeal was right to have held that the respondents join issues with the appellants on the question of possession and whether that question nevertheless remains material having regard to the evidence of D.W.1 and D.W.3, the respondents having admitted that the person from whom the appellants derived their title to the piece of land, namely, Balogun Oderinlo, was the first settler on the land contrary to the respondents' pleading.

In his own brief, Mr Aiyedun for the respondents has put the issues differently. In his view, the real issues are:-

(i) Whether the Court of Appeal was wrong in affirming the decision of the learned trial Judge upon a calm review and meticulous evaluation of the evidence before the court.

(ii) Whether such findings 6f fact can be lightly set aside by the sup- E reme Court more so as there have been such concurrent findings by the two lower courts.

(iii) Whether the appellants are entitled to succeed in their claim for declaration of title when their case supported that of the respondents as per the admission of the appellants' key witness, Salami Oyegoke Qderinlo (P.W.6).

(iv) Whether in law the appellants ought to have succeeded not on the strength of their own case but on the weakness of the respondents' case (if the case of the respondents was weak).

Although the issues formulated by both parties are differently worded, it is quite clear that the appeal herein turns on the facts and the evaluation of these facts. It is not surprising therefore that the respondents' counsel was (i quick to point out this fact and in his oral arguments, he emphasised the point that there has been a concurrent finding of facts by the two lower courts; counsel therefore urged this court not to disturb those findings.

The Supreme Court has in a number of cases laid down the principles governing a review of the facts by an appellate court. Broadly speaking it is the primary function of a trial court, which saw and heard the witnesses to assess the credibility of those witnesses and to believe or disbelieve any of them. See Chinwedu v. Mbamali (1980) 3-4 S.C. 31 at page 75 per Obaseki, J.S.C.; Enang v. Adu (1981)11-12 S.C. 25 at 38 per Nnamani, J.S.C.

In this respect, an appellate court is only left with a duty to see:

(a) Whether there was evidence to support the findings and/or the decision of the trial court.

(b) Whether the trial court has made a correct assessment of the evidence before it.

(c) Whether the trial court has wrongly accepted or rejected any evidence tendered at the trial.

(d) Whether there has been an erroneous appraisal of facts leading to erroneous conclusions in the case.

See A. Anyaoke v. Dr. F. Adi (1986) 3 N.W.L.R. 731 at 742 Mogaji & Ors. v. Odofin & Ors. (1978)4 S.C. 91

All that this means is that an appellate court will not interfere with the findings of a trial court unless it is obvious that that court has not made good use of the unique advantage which it has of seeing and hearing the witnesses before it.

See Fashanu v. Adekoya (1974)1 All N.L.R. 35; Woluchem v. S. Gumi (1981) 5 S.C. 319

The main question in this appeal will be to ascertain whether there has been a violation of any of the principles stated above.

The appellants' counsel has attacked the findings of fact made by the trial Judge. First, it was submitted that the findings made were contrary to the trend of accepted evidence, and secondly that tile trial Judge made no findings at all on the principal issue in the case, i.e. the issue as to which party had established title to the land in dispute.

I shall now consider the relevant evidence in the case so as to find out whether there is any substance in the appellants' complaint.

In their statement of claim, the plaintiffs based their claim to the land on a grant by Balogun Oderinlo. The relevant paragraphs of the pleadings are as follows:-

6. The land in dispute owned by the plaintiffs is situate at Adenko Compound, Isale Oje, Ibadan and is the area verged green in survey plan No. AD 96(73 drawn by Licensed Surveyor, M.A. Adeoti, Esq., on 23/5(73 and duly countersigned by the Surveyor General on 6/8/73 and is attached to this statement of claim.

7. During the reign of Bashorun Oluyole, Balogun Oderinlo granted absolutely to Adenko Aje Ojoku a large portion of land at Isale Oje, Ibadan embracing (1) the area verged yellow (2) the area verged blue and (3) the area verged red including the land in dispute verged green in survey plan AD 96/73.

8. The said Adenko Aje Ojoku, plaintiff's ancestor, was a warrior under Balogun Oderinlo and lived with Balogun Qderinlo at Mapo, Ibadan fill the time he was granted the said parcel of land at Isale Oje.

9. The said Adenko Aje Ojoku was also Elegun Sonponna to Balogun Oderinlo and as worshippers of Orisa Shonponna, buried those who died of smallpox and confiscated their properties.

10. The land given to Adenko by Oderinlo was a portion of a large parcel of land originally settled on by Oderinlo and the land given to Adenko stretches to Ajedi Stream because the bank of the stream was used to bury those who died of smallpox.

11. Adenko upon taking possession of the land granted by him exercised several and numerous acts of ownership during his lifetime.

12. Adenko was granted his portion of land including the land in dispute by Balogun Oderinlo long before Delesolu was sent by Oderinlo to go and live at Oje, granting him Delesolu (i) the remaining land (left after the grant to Adenko and used by Oderinlo for farming) and also (2) a house of 70 rooms (which Oderinlo built for the purpose of living in it himself, but was prevented by Bashorun Oluyole from moving into it).

13. Adenko granted a portion of land given him by Oderinlo to (1) Ojo Ofoke and (2) Pabiekun who were also warriors under Balogun Oderinlo and the said portions are clearly marked out in Survey Plan AD96!73 verged blue and yellow respectively.

14. The plaintiffs family have been in undisputed and unchallenged ownership and possession of their land for over one hundred years.

16. Beginning from our ancestor Adenko, successive heads and members of our family planted and reaped cocoa, palm trees, sugar cane, vegetables and other economic crops on the portion of the land granted Adenko.

In other parts of the statement of claim, the plaintiffs stated that the defendants owned the land adjacent to theirs and in particular they pleaded that:-

25. It was Delesolu who granted Bilekanle Ayondioro, the ancestor of the defendants, out of the land granted him by Balogun Oderinlo, the portion of land forming boundary with the land granted to Adenko and shown in the Survey plan as Ayondioro family land.

26. Delesolu also granted out of the land granted him by Balogun F)' Oderinlo portion of the land to Akingbeju family forming boundary with the land granted to Adenko.

27. About July 1972, the defendant trespassed into the land in dispute and started to uproot stone foundation of a building being put up by Raji and his brothers to whom our family had given permission to build the house on our family land.

28. We warned them to stop forthwith their trespass but as they continued to commit trespass on more and more of our family land we sued them to court in CV/97/72 at the Ibadan City Grade A No.1 Customary Court, Mapo Ibadan for declaration of title, damages for trespass and injunction.

29. In the said Suit CV/97/72 the plaintiffs and witnesses gave evidence and in particular the present head Balogun Oderinlo gave evidence for the plaintiff confirming the grant to Adenko our ancestor of the said parcel of land including the land in dispute before the grant by Balogun Oderinlo of the remaining land and house at Oje to Delesolu.

30. The defendant called two witness including a member of Delesolu family who admitted Balogun Oderinlo as the radical owner and root of title to the land in dispute.

In their statement of defence, the defendants denied all these averments and put the plaintiffs to the strict proof of them. In particular, they denied that Balogun Oderinlo was the original owner of the land in dispute, and averred that:

4. The defendants aver in respect of paragraph 6 of the statement of claim that the land in dispute is situate at Ayondioro's Cornpound Isale-Oje, Ibadan.

5. The defendants aver that the land in dispute forms part of the land granted by Delesolu to Bilekanle the ancestor of the defendants.

6. The area of land granted to the defendants' ancestor stretches from the Alafara-Oje Road, to the Ajedi Stream.

7. The defendants deny paragraph 7 of the Statements of Claim and aver that the plaintiff is a member of Ojo-Ofoke Family and that one Akingbeju brougbt Ofoke (his stranger) to Bilekanle to ask for land to build living House on.

8. The equivalent of 4 plots were granted to the said Ofoke for the purpose of building a House.

9. Ofoke later brought Adenko the ancestor of the plaintiffs to Bilekanle also to ask for a small portion of land to build a House on and was granted an area not more than 100'. by 100'.

10. The plaintiffs' family has since begun to enlarge on their holding without the consent of their grantors the defendants.

15. Adenko had only 2 plots of land about '100 by 100' within Ofoke Compound and it was only over this portion that he was allowed to exercise a right of ownership, while the defendants have always exercised exclusive right of the ownership over the land in dispute.

16. Ofoke is the head of the plaintiffs family Adenko being his junior brother.

17. In 1961 when the plaintiffs family attempted to extend their holding by trespassing onto the land in dispute the defendants' family instituted action in Suit No.3/61 at the Ibadan, No.3 Grade 'B' Customary Court against Kofoworola Amole, head of the Ofoke (plaintiff's) family.

26. Bilekanle was the original grantee of Delesolu and the 1st HEAD of the Ayondioro family.

28. Although the defendants family compound was originally called Belekanle's compound, it became known as Ayondioro's compounds as a result of the popularity in Ibadan at the time, Ayondioro (Alias Elegen Sango) an ancestor of the defendants.

In regard to the suit pleaded in paragraph 28 of the Statement of Claim, the defendants' reaction was that:

29. Following the judgment of the Supreme Court which gave ownership of the land in dispute to the defendant and in the exercise of their legal rights over the land in dispute, the defendants sold a number of plots including the foundations of Muritala Akangbe (son of Ojo-foke) to divers persons without any interference from anyone.

30. The defendants did not trespass. but were exercising their legitimate right over the land in dispute when the suit No. CV/97/72 was instituted.

31. The defendants shall rely at the trial of this case on all documents relating to the earlier cases over the land in dispute.

It will be seen that at the close of the pleadings, the main issues which the trial court had to decide were:

1. Who was the radical owner of the disputed land, - was it Balogun Oderinlo as alleged by the plaintiffs or Delesolu as pleaded by the defendant?

2. To whom was the land in dispute granted and by whom?

3. Is it true that the Supreme Court had declared the defendants to be the owners of the land in dispute? - The answer to this last question is that no such judgment was produced or tendered before the trial court.

In regard to the 1st and 2nd issues, the plaintiffs gave evidence of their root of title through the 5th and 6th P.W.s The 5th witness Busari Oderinlo, was a descendant of Balogun Oderinlo, and he testified as follows:

I know the land in dispute. The land belongs to Adenko Aje Ojoku Family. Oderinlo granted Adenko the land in dispute during the time of Oba Oluyole, Bashorun of Ibadan. The bound- aries of the land granted by Oderinlo was

When he was cross-examined, he said:

The piece of land which Oderinlo gave to Adenko is fairly large. The length or breadth of the land is not up to a mile.

In his own evidence, the 6th witness, Salami Oderinlo, who was said to be the Mogaji of Oderinlo family stated as follows:

I know the land in dispute. The land belongs to Adenko who was granted the land by Oderinlo my great grand father. Oluyole was the Bashorun of Ibadan when Oderinlo granted the land to Adenko. The boundary men of Adenko were Ayondioro, Tafa Alakia . Oderinlo was a soldier Delesolu was a soldier in the army of Oderinlo when there was a quarrel between Oluyole and Oderinlo, Oderinlo built a seventy room house at Oje . He (Oderinlo) therefore sent Delesolu to go and live in the house . Oderinlo had earlier granted all the land near the seventy room house to Delesolu in addition; this was how Delesolu could grant lands to Ayondioro and Gbeju.

When cross-examined he denied that he had said in an earlier suit CV/97/72, before the Grade 'A' Customary Court, Ibadan - see page 4 of Exhibit 'B' in these proceedings - that the land which Oderinlo gave to Delesolu extended from Oje to Alafara Stream, or that it was Delesolu who granted the land in dispute to the plaintiffs. In addition to this, the 3rd and 4th P.Ws also gave evidence confirming the grant to Adenko by Oderinlo.

In proof of their own root of title, the defence called two witnesses. The 1st D.W. was in fact the second defendant, Tijani Akangbe, in the case. This is what he said:

I know the land in dispute. The land in dispute belongs to Bilekanle, Ayondioro family . The defendants' ancestor Bilekanle Ayondioro was granted the land in dispute originally by one Delesolu. The original land granted by Delesolu to Ayondioro by Alafara Oje Street would be about 1½ to 2 kilometres long.

Under cross-examination, the witness said:

I know the history of the land in dispute. Oderinlo granted land including the land in dispute to Delesolu originally. The boundaries of the original grant by Oderinlo to Delesolu are .. Bilekanle did not grant land to Adenko or to Pabiekun but to Ojofoke. (Italics mine)

The witness was not re-examined on the above evidence.

The Defence however called a member of the Delesolu Family to testify. He was the 2nd D.W. and he stated as follows:

I do not know the plaintiffs. I know the land in dispute. The land in dispute is situate between Alafara and Oje in Oje area. The land in dispute was granted by Delesolu to Ayondioro Family. I know the boundaries of the land in dispute.

Later on, in his evidence in chief, he stated:

Balogun Oderinlo granted the whole area originally to Delesolu. He also gave his first daughter to Delesolu as wife.

When the plaintiffs' Counsel cross-examined the witness, he said:

Delesolu granted land to Ayondioro. My father told me this history. My father Mustafa Ajadi, is now dead. My father told me that all the parcels of land within the land in dispute were granted to Ayondioro. The land in dispute was not granted to Ogunwale. It was not granted to Bilekanle. (Italics mine)

At the close of evidence, both parties addressed the court and in the considered judgment which was later handed down, the trial Judge carried out an assessment of the evidence of the witnesses for both parties.

In his view, the 4th P.W. did not appear to know the land in dispute and the 5th P.W. did not impress him as a witness of truth because his evidence contradicted that of the 3rd P.W. The learned Judge also held that the evidence of the 6th P.W. contradicted that of the 5th witness in regard to the extent of the land granted to the defendants by Delesolu.

In regard to the case for the Defence, the learned Judge reviewed the testimony of the 1st D.W., and held that:

the evidence of this witness is not helpful as to the traditional history of his family land.

When he came to assess the evidence of 2nd D.W., who had claimed to he a descendant of Delesolu, the Judge held that his evidence contradicted that of the 1st D.W. and was also in conflict with the Statement of Defence. Me then concluded the evaluation of the evidence of these two witnesses as follows:-

In view of what I have said in respect of the evidence of the 1st and 2nd defendants' witnesses, it cannot be said that there was satisfactory evidence from the defendants as to their traditional title.

On the totality of the evidence, the learned Judge made the following findings:

In this case there is no doubt that there is conflicting traditional evidence as both the 3rd plaintiffs' witness and the 1st defendants' witness trace their radical title to Balogun Oderinlo and to Delesolu respectively. Delesolu was said to have been granted his land (from which he later carved out to others respectively) by the same Balogun Oderinlo. I believe the 3rd plaintiffs' and 1st defendants' witnesses that the respective families they belong to have family lands near the land in dispute. I find as a fact and I am satisfied that both parties have semblances of titles to lands in the area of the said lands in dispute, but there cannot be judgment for the plaintiffs as they have not adduced convincing evidence of ownership to the whole area of the land in dispute to the exclusion of others as in view of the evidence of the defendants' grantees of parcels of land within the land in dispute.

Furthermore on the evidence before me there is no certainty as to the extent of the land in dispute in view of the conflicting evidence adduced for the plaintiffs in this case. There is no doubt in the circumstance that there is a semblance of grant to either party but both the competing traditional evidence and recent facts do not satisfy me that the plaintiffs have exclusive use of the land in dispute. The plaintiffs' claim before me for declaration of F title in this case has to be dismissed: See Ekpo v. Ita ante.

I pause here for a moment to say that those findings do not accord with the evidence given in the case. In my view, the learned Judge has failed to make any finding on the principal issue in the case. That issue, as stated on the pleadings, was whose traditional history of the land in dispute is more probable.

In the statement of claim, the plaintiffs pleaded that they got a grant of the land in dispute from Baloguri Oderinlo and called the present Head of Oderinlo to confirm the grant. The defendants on the other hand. averred that they derived title to the land from one Delesolu, but gave evidence which traced their title back to Balogun Odetinlo..In those circumstances, the Judge ought to have stated whose evidence he preferred. In regard to the defendants' story of the grant, I bear in mind that although evidence was given tracing their grant to Oderinlo contrary to the pleadings, no attempt was made by the defendants to amend their pleading so that it might fall in line with the evidence given.

This is very significant because, the evidence of grant given by the defendant confirmed paragraphs 12 and 25 of the statement of claim, that it was Balogun Oderinlo who granted a portion of land (adjacent to the plaintiffs' land) to Delesolu who in turn granted part of that land to Bilekanle, the defendants' ancestors. The defendants denied these two paragraphs in paragraph 2 of their statement of defence, but still went on to give evidence which confirmed the plaintiffs' version of the grant.

It is settled law that in civil cases issues are settled on the pleadings - see Idahosa v. Oronsaye (1959) 4 F.S.C. 166; [1959] SCNLR 409 and the court should not allow evidence to be given in respect of facts not pleaded. If however such evidence is inadvertently received, it is the duty of the trial Judge to discountenance it because it goes to no issue.

See National Investment Properties Co. Ltd. v. Thompson Organisation (1969) N.M.L.R. 99 at 104. Ferdinand George v. U.B.A. Ltd. (1972) 8-9 S.C. 264 at 275

In the instant case, the learned trial Judge did not discountenance the inadmissible evidence of the defendant. Rather, he acted upon it and came to the conclusion that it was Balogun Oderinlo who granted land to both parties. In my view, it would seem that the trial Judge had allowed the defendants to set up a case different from that which they had made out on their pleadings and the authorities are agreed that the defendants could not do this: they are bound by their pleadings. See Aderemi v. Adedire (1966) N.M.L.R. 398.

As stated above, the defendants did not apply to amend their pleadings and in my view, it was wrong of the trial court to have allowed them to take advantage of the evidence that Oderinlo was the radical owner of the land in dispute.

But whether the pleadings were amended or not, it was still the duty of the court to make a positive finding as to which of the two parties, on the evidence, had a better title to the disputed land.

Unfortunately, the learned trial Judge failed to make this important finding, rather he found that 'both parties have semblances of titles to lands in the area of the said land in dispute."

In my view, title to other land in the area of the land in dispute was not a live issue between the parties. This is so because there was evidence for both parties that the land granted to each party included the land in dispute. Also it was given in evidence that the land granted to the defendants was adjacent to that granted to the plaintiffs. Now this seems to suggest that the disputed land falls somewhere in between the plaintiffs' land and that of the defendants.

In my view, therefore, the real issue between the parties was whether the land in dispute was part of the land granted to the plaintiffs by Oderinlo, or a portion of that granted to the defendants by Delesolu. That is the crucial issue hetween the parties, and it was on that issue that the trial Judge was expected to make a finding.

By several decided authorities, it has been held that a trial court has to make a finding on the evidence before it.

See Okumobi v. Ishola (1973) 3 S.C. 43.

Anukanti v. Ekwonyeaso (1978)1 S.C. 37

Okonojua v. The State (1981)6-7 S.C.1 per Bello, J.S.C. at p. 16.

Mogaji v. Odofin (1978) 4 S.C. 91

It seems to me from all I have said that the learned trial Judge has failed to make a vital decision on the conflicting evidence before him, and to that extent, he has failed to take full advantage of having seen and heard the witnesses. In that event, it would appear that this is one of those infrequent occasions when an appellate court should interfere with the findings of a trial court.

As previously stated, the plaintiffs were dissatisfied with that judgment and appealed to the lower court. In that court, two principal issues were canvassed.

First, that the plaintiffs had proved their title to the land in dispute, and it was therefore wrong for the trial court to have dismissed their claims.

Secondly, it was urged on the lower court that the trial court misdirected itself in holding that the identity of the land in dispute was uncertain.

In regard to the first point, the lower court, after reviewing the submissions of both counsel, came to the conclusion that the plaintiffs' claims were rightly dismissed. Onu, J.C.A., who read the lead judgment (OmololuThomas and Sulu Gambari, JJ.C.A., concurring) held as follows:

The complaint therefore is that having accepted the traditional D evidence of the appellants as to the radical ownership of the land in dispute and the grant from the said Balogun Oderinlo to the appellants' ancestor, the learned trial Judge refused to enter judgment for the appellants for failure to adduce convincing evidence of exclusive ownership. He cited in support of this contention the cases of Mumuni Abdulai v. Ramoiu Manue 10 E W.A.C.A. 172 and R.M. Alade v. Lawrence Awo (1975)4 S.C. 215 at 225-6.

It was finally submitted that since the appellants traced their root of title to Balogun Oderinlo but the respondents did the same but failed to prove any root of title in Delesolu, then the appellants have succeeded in proving that they have the better title and the legal right to possession of the land in dispute.

The learned counsel for respondents' short answer to the above argument was that the appellants, having failed to prove title by grant to the particular land in dispute, their other evidence being inconclusive and lacking, the law throws upon them the burden of proving acts of ownership. He also cited in support of this contention the same case of Abdulai v. Manue (supra) at p.174.

"I agree with learned counsel for respondents that the respondents joined issue with the appellants on the question of possession vide evidence of 1st D.W. and D.W.3. The appellants' case was properly dismissed for failure by them to adduce convincing evidence of exclusive possession of the land in dispute by H them. The trial court's decision, in my view, is unimpeachable. This ground of appeal fails."

and in the concluding paragraph of his judgment, the learned Justice held:

I agree with the respondents that as the appellants failed to satisfy the court by their evidence in proving their case; they cannot rely on the weakness of the respondents' case. See Kodilinye v. Odu 2 W.A.C.A. 337 at 338.

I also agree with the learned trial Judge that as there was none to choose between the appellants' as well as the respondents' case, he rightly dismissed it.

In the result, this appeal fails and is accordingly dismissed.

Before us, it was submitted that the lower court had "completely misunderstood" the arguments tendered before it.

It seems to me that one basic fact that must be accepted is that both parties claimed title to the land by grant and, the only issue before the trial court was to decide who of the two parties had proved his title. It is now settled law that a party may prove title to a piece of land in any of the following five ways:

(a) By traditional evidence.

(b) By documents of title

(c) By various acts of ownership, numerous and positive; and extending over a length of time as to warrant the inference of ownership.

(d) By acts of long enjoyment and possession of the land.

(e) By proof of possession of adjacent land in circumstances which render it probable that the owner of such adjacent land would, in addition be the owner of the disputed land.

See Idundun v. Okumagba (1976) 9-10 S.C. 227 Okafor v. Idigo (1984)1 S.C.N.L.R. 481.

It has also been held that when a party relies on a grant and proves that grant by traditional evidence, he need not go further and prove possession or acts of ownership or any of the other four ways stated above.

See M. Abdulai v. R. Manue 10 W.A.C.A. 72

Karimu v. Fajube (1968) N.M.L.R. 151.

In the case of F.M. Alade v. Laivrence Awo (1975)4 S.C. 215 at page 225 this court held:

In other words, Webber, J. quite rightly thought, and we agree with him, that, where the other evidence of title i.e. tradition is inconclusive or entirely lacking if we may say so, then, and it is only then, that the onus of proving the facts constituting acts of ownership is thrown upon the plaintiff. That being the case, we think that the correct view of the law is that the plaintiff in a claim for declaration of title could succeed solely on the basis of traditional evidence. Moreover it seems to us that the rule in Ita's case does not apply where the plaintiff relies upon and proves title by grant.

That pronouncement represents the state of the law and it seems to me that if the trial Judge had applied the principles stated therein to the facts of this case, he would have made a definite finding on the issue of traditional history.

I am satisfied that a consideration of the issues of possession does not arise until the question of traditional history has been determined. The trial court failed to settle this vital issue and I am of the view that the lower court misdirected itself in confirming the errors of the trial court.

At this stage, it is, necessary to say a few words about the identity of the land in dispute. In his judgment, the trial Judge held that the identity of the land was uncertain only because there was conflicting evidence about the structures on the land. According to the learned Judge, 3 P.W. said there were four houses on the land whilst 4 P.W. said there were eleven houses. The learned Judge also observed that although 4 P.W. said that there was no road by the land in dispute, the Plan of the land in dispute, Exhibit 'A', shows an access road to the land. For those reasons, the Judge concluded:

On the evidence before me there is no certainty as to the extent of the land in dispute in view of the conflicting evidence adduced for the plaintiffs in this case.

In his consideration of this point, Onu, J.C.A., seemed to me to have adopted a correct approach to the issue when he held:

. where contradictions only manifest themselves as to the clarity of structures and locations on the land and not as to the precise boundaries, identity and certainty of it, it would be erroneous to hold strictly that the boundaries are not well defined Chief 0. Are V. ChiefA. Obaloro (1968) N.M.L.R. 238 at 239. ..

Exhibit 'A' clearly depicts an "access" not a 'motor road", and so the contention that there is no motor road on Exhibit 'A' is at best a non-issue.

Further on in the judgment, the learned Justice said:

In the appeal herein, Exhibit A, while not held to be inaccurate does correctly give the boundaries, the identity and extent of the whole land granted to the appellants' ancestor by Balogun Oderinlo

Moreover, the evidence of 3rd and 4th appellants witnesses (I shall come to this shortly), irreconcilable though it is with Exhibit 'A', does not, in my view, derogate from or affect the identity, extent and boundaries of the land in dispute

It was therefore wrong of the trial court to have held otherwise.

At the concluding portion of the judgment, when the learned Justice came to consider the issue of whether or not the plaintiffs were in possession of the disputed land, he observed that the trial Judge had found as a fact that there was "no satisfactory evidence that the appellants were in exclusive ~ G session of any certain area of land within the land in dispute", and that both parties have "semblance of title" to land in the area of the land in dispute. Onu, J.C.A., held that those findings of fact could not be lightly disturbed; he then went on to say that:

..while Exhibit 'A' was accurately drawn, the variance between the evidence proferred by the appellants and their witnesses and the plan destroys the value of the plan and leaves uncertain the area of land in respect of which the claim was made. See Akubueze v. Nwakuche (1959) 4 F.S.C. 262; [1959] SCNLR 616 Alade v. Dina supra. This was the penultimate conclusion of the trial court with which I entirely agree. See Frempong II v. Brempong II 14 W.A.C.A. 13 at 14.

With great respect, 1 find it difficult to follow the reasoning of the learned Justice, especially after he had earlier held that no matter how irreconcilable the evidence of the plaintiffs' witnesses might be, it would "not derogate from or affect the identity, extent and boundaries of the land in dispute."

I think it should be clearly understood that the identity of a piece of land is one thing, whilst the structures on the land are a totally different matter. A plaintiff may give unsatisfactory evidence about the structures on his land or about the acts of ownership performed on the land. But such evidence need not necessarily affect the physical identity of the land especially where, as in the instant case, a survey plan was admitted in evidence (without objection) and the land in dispute was clearly demarcated. Apart from this, it seems to me that the disputed land was known to both parties. Witnesses for the parties gave evidence about the number of houses on the land, - some said there were four, whilst others said there were eleven. Even if the trial Judge rejects the evidence of any of these witnesses on this point, this, in my view, would not affect the identity of the disputed land which had been clearly demarcated on a Survey Plan Exhibit 'A' and which was tendered by a Licenced Surveyor.

I think the lower court got into this mix-up only because it felt that the plaintiff, in addition to proving title by traditional evidence, should also prove exclusive possession and acts of ownership. I have already stated that the Law does not impose that additional burden on a party. In the instant case, although evidence of traditional history relating to the land in dispute was tendered before the trial court, that court has failed to make a finding on that issue. To this extent, there seems to be a lacuna in the judgment of the trial court, and the lower court was in error to have confirmed such an unsatisfactory judgment.

I have therefore come to the conclusion that both judgments should be set aside and I do so order.

I have given anxious consideration to the consequential orders that should be made on this appeal. In their Notice of Appeal, the appellants have asked this court to:

(a) Set aside the judgment and orders of the High Court and of the Court of Appeal.

(b) Allow the appellants' claims for declaration of title to a statutory right of occupancy.

(c) Award such damages as this Honourable Court may deem fit.

(d) Grant an injunction against the respondents, their servants and agents.

(e) Grant any other general reliefs as this court may deem fit.

In other parts of this judgment, I have pointed out that the trial court had failed to make a finding on the vital issue in the case. The duty to do so is the function of the trial court who saw and heard the witnesses and observed their demeanour. By failing to carry out his primary duty, the trial Judge has created a Lacuna in his judgment, and in my view, such lapse can only be put right by a trial court.

In the case of Solomon v. Mogaji (1982)11 S.C.1 at 24, this court, per A Bello, J.S.C. (as he then was) held that when no finding of fact is made on conflicting evidence adduced by both parties on an issue, the resolution of which is essential to the just determination of the case, the proper course is to order a retrial unless the circumstances of the case do not warrant such an order. See also Mogaji v. Odofin. 4 S.C. 91.

After a most anxious consideration of the facts in this case, I am of the view that the interests of justice dictate that there should be a retrial of the case and I so order. I am not unmindful of the fact that the suit has been in court for a fairly long time, and in this respect, I hope that the Honourable Chief Judge of Oyo State, would give necessary directives that the case be given accelerated hearing.

In the final result, this appeal succeeds and it is allowed. It is ordered.

1. That the judgment of the Ibadan High Court dismissing the plaintiffs' claims together with the judgment of the Court of Appeal confirming the dismissal, shall both be set aside.

2. That this case shall be sent back to the High Court, Ibadan for rehearing; such re-trial shall be before another Judge.

3. That the re-hearing shall be given accelerated attention.

The plaintiffs are entitled to costs which are fixed at N300.00 in the lower court, and N500.00 in this court. The costs in the High Court shall abide the re-hearing.

Judgment delivered by

Obaseki, J.S.C.:

I have had the advantage of a preview of the judgment just delivered by my learned brother, Craig, J.S.C., and I find that his opinions on all the issues raised in this appeal accord with mine. I accordingly adopt them as my own.

The appellants in the High Court claimed

(1) a declaration of title to a piece or parcel of land situate at Isale Oje in Ibadan;

(2) N250.00 as general damages for trespass; and

(3) Injunction

The facts have been set out in detail by my learned brother, Craig, J.S.C., and I need not repeat them here.

At the conclusion of the hearing of evidence and addresses of counsel, the learned trial Judge, Ayorinde, J., dismissed the claim in a considered judgment. In the course of the judgment, the learned trial Judge said:

In this case, there is no doubt that there is conflicting traditional evidence as both the 3rd plaintiffs' and the is: defendants' witnesses trace their radical title to Balogun Oderinlo and to Delesolu respectively. Delesolu was said to have been granted his land (from which he later carved Out to others respectively) by the same Balogun Oderinlo. I believe the 3rd plaintiffs' (witness) and the 1st defendants' witnesses that the respective families they belong to have land near the land in dispute. I find as a fact and I am satisfied that both parties have semblances of titles to lands m the area of the said lands in dispute, but there cannot be judgment for the plaintiffs as they have not adduced convincing evidence of ownership to the whole area of the land in dispute to the exclusion of others in view of the evidence of the defendants' grantees of parcels of land within the land in dispute. Furthermore, on the evidence before me, there is no certainty as to the extent of the land in dispute in view of the conflicting evidence adduced by the plaintiffs in this case. There is no doubt in the circumstance there is a semblance of grant to either party, but both the competing traditional evidence and recent facts do not satisfy me that the plaintiffs have exclusive use of the land in dispute.

The plaintiffs were not satisfied with this decision and they appealed to the Court of Appeal against it. They were equally unsuccessful in that court. Onu, J.C.A., in his lead judgment gave the short reasons for the dismissal of the appeal in the penultimate paragraph as follows:

I agree with the respondents that as the appellants failed to satisfy the court by their evidence in proving their case, they cannot rely on the weakness of the respondents' case - see Kodilinye v. Odu 2 W.A.C.A. 337 at 338.1 also agree with the learned trial Judge that as there was none to choose between the appellants' as well as the respondents' case, he rightly dismissed it.

The plaintiffs were still not satisfied with the dismissal of their claim and hence they have appealed to this court on several grounds.

The issues for determination in the appeal distilled from the grounds of appeal as set out by the appellants are as follows:

( 1) Whether the appellants are not entitled to succeed in their claim for declaration of title to the piece of land in dispute and to the other reliefs claimed, the learned trial Judge having found that the appellants proved their radical root of title in Balogun Oderinlo admittedly the first settler on the land, whilst the defendants failed to establish their root of title.

(2) Whether the learned trial Judge and the Court of Appeal were right to have permitted the respondents to found their claim to title to the piece of land on a grant from Balogun Oderinlo whereas in their pleadings they had alleged that they derived their title from Delesolu and denied that the said Balogun Oderinlo was the settler on the land.

(3) Whether having found that the appellants derived their title from Balogun Oderinlo, it was nevertheless necessary for the appellants to establish evidence of recent user by them;

(4) the appellants having established that their title to the piece of land originated from the first settler and the rightful owner, Balogun Oderinlo, whether the respondents discharged the onus of proof laid upon them by law to dislodge the plaintiffs' claim;

(5) Whether the Court of Appeal was right to have held that the respondents joined issues with the appellants on the question of possession and whether the question nevertheless remains material having regard to the evidence of d.w.1 and d.w.3 the respondents having admitted that the person from whom the appellants derived their title to the piece of land namely, Balogun Oderinlo, was the first settler on the land contrary to the respondents' pleadings."

The five issues can properly form sub-issues of one main issue namely:

Whether the appellants discharged the onus of proof to entitle them to:

(a) the declaration of entitlement to a statutory right of occupancy in respect of the piece of land in dispute;

(b) award of general damages for trespass;

(c) grant of injunction against the respondents, their servants, and or

(d) any other order as to this court may deem proper in the circumstances

The respondents formulated 4 issues as issues for determination in this appeal. They are as follows:

(i) whether the Court of Appeal was wrong in affirming the decision of the learned trial Judge upon a calm review and meticulous evaluation of the evidence before that court;

(ii) whether such findings of fact can be lightly set aside by the Supreme Court more so as there have been such concurrent findings by the two lower courts;

(iii) whether the appellants are entitled to succeed in their claim for declaration of title when their case supported that of the respondents as per the admission of the appellant's key witness, Salami Oyegoke Oderinlo (P.W.6)

(iv) whether in law the appellants ought to have succeeded not on the strength of their own case but on the weakness of the respondents' case (if the case of the respondents was weak).

Similarly, there can be no doubt that the above four issues flow as sub-issues from the main issue formulated by me above.

In a claim for a declaration of title, the duties of the trial Judge is mainly to ascertain whether the plaintiff (claimant has discharged the onus or burden of proof on him which will entitle him to the declaration - Kodilinye v. Mbanefo Odu (1936)2 W.A.C.A. 337. This burden is only discharged when credible evidence of the highest probative value is adduced by the plaintiff through witnesses in strength sufficient to outweigh other evidence and establish satisfactorily and unequivocally the title of the plaintiff/claimant to the piece or parcel of land Mogaji v. Odofin (1978) 4 S.C. 91. Thus, the plaintiffs must rely on the strength of their own case and not on the weakness of the defendants' case - Kodilinye v. Mbanefo Odu (1936)2 W.A.C.A. 337.

Where as in the instant appeal, the root of title rests in a known grantor credible evidence of the grant must be given. Thomas v. Holder (1948) WA C. A .78. The parties to this appeal pleaded their root of title and from the pleadings they appeared to be different. But the evidence traced their root to the same source - Balogun Oderinlo. Where, as in this case, the two competing titles originate from a common grantor, the first in time takes priority and the trial Judge must, in addition to finding as a fact that both parties derive title originally from a common grantor, proceed to ascertain where there is a credible evidence; the priority of the competing titles. It is true that the failure of the respondents in their pleadings to trace their root of title to Balogun Oderinlo submerged the issue of priority, but the failure of the learned trial Judge to address himself to this issue when he accepted the evidence of 1st defendant's witness left the issue unresolved particularly as the appellants pleaded that Delesolu had a grant from Balogun Oderinlo.' Until he has done this, he has not fully discharged his duties of adjudication.

A court must give full and dispassionate consideration to all issues Polycarp Ojobue & Anor. v. Aje Nnubia and Anor. (1972) 6 S.C. 27; Oyediran & Family v. Anise & Ors. (1970)1 All N.L.R. 313 at 317).

One of the five ways of proving title to land is by grant, Idundun v. Okumagba (1976) 9 & 10 S.C. 227 at 246-250 and I am at a loss why the respondents failed to plead that Delesolu who made the grant to them obtained the title from Balogun Oderinlo. The trial Judge must take full advantage of the opportunity of seeing and hearing witnesses testify by giving proper assessment and evaluation to the evidence of witnesses. Chief Frank Ebba v. Chief Ogodo (1984)1 S.C.N.L.R. 372, 379, 388.

A Judge who believes the evidence of two witnesses that are in sharp conflict has not shown that he has made good use of the advantage of seeing and he and hearing the witnesses testify from the witness box. In the instant appeal, evidence of the 3rd plaintiffs witness and the 1st defendant's witness are in conflict with each other in material particulars. Yet, the learned trial Judge believed and accepted the evidence of both of them. The 3rd plaintiffs' witness's testimony in chief in part reads:

The land in dispute belongs to the family of the plaintiffs. Balogun Oderinlo of Mapo Ibadan granted the land in dispute to our ancestor Adenko Aje Ojohun, during the reign of Bashorun Oluyole of Ibadan . After the grant by Balogun, Oderinlo Adenko built houses on the land granted to him Delesolu was originally granted land by Balogun Oderinlo. Oderinlo granted land to Adenko before he granted land to Delesolu.

The 1st defendants' witness's testimony in chief in part reads:

The land in dispute belongs to Bile kanle Ayondioro family. The plaintiffs live in Ojo Ofoko's compound. The defendants' ancestor Bilekanle Ayondioro was granted the land in dispute originally by one Delesolu.

Under cross-examination, the 1st defendants witnesses testimony in part reads:

I know the history of the land in dispute. Oderinlo granted land including the land in dispute to Delesolu originally Bilekanle did not grant land to Adenko or Pabiekun but to Ojofoko. The grant of the various portion of land by my family to the respective grantees to build in were absolute grants.

As mentioned earlier in this judgment, the learned trial Judge placed much premium and heavy reliance on the evidence of these two witnesses. 'The two witnesses, in my view, cannot both be giving credible evidence of probative value which can help the court in ascertaining" the party who has a better title. The Judge has therefore failed to exercise his adjudicative power to choose which of the two witnesses to believe. The Court of Appeal has also failed to discharge its duty, as an appellate court, to properly scrutinise the judgment and detect the error of believing two hostile witnesses whose evidence are in sharp conflict on the issue of title.

This Court has not seen and heard the witnesses and is therefore unable to assess the credibility of the witnesses. Although the facts are now at large, this Court, as indeed any appeal court in such circumstances, is unable to act on the evidence on record. It would be otherwise if credibility had not been involved.

George Okafor & 3 Ors v. Eze E. Idigo II & 5 Ors. (1984)1 S.C.N.L.R. 481 at 499-513.

Fashanu v. Adekoya (1976) 6 S.C. 83, 91

The proper Order to make will be one of trial de novo

Mogaji v. Odofin (1978) 4 S.C. 91

Ajayi v. Fisher 1 F.S.C. 90

Chief I. Igbodim & 2 Ors. v. Chiefv. Obianke & Anor. (1976)9 & 10 S.C. 179, 193

I will therefore, for the above reasons and the reasons given by my learned brother, Craig, J.S.C., allow the appeal; and 1 hereby allow the appeal. The decisions of the Court of Appeal and the High Court together with the order as to costs are hereby set aside and the case is remitted to the High Court, Ibadan for trial de novo before another Judge.

The appellants are entitled to costs assessed at N500.00 in this court and N300.00 in the Court of Appeal, but costs in the High Court to await trial de novo.

Judgment delivered by

Uwais, J.S.C.:

I have read in advance the judgment read by my learned brother. Craig, J.S.C. For the reasons given and the conclusion reached by him, I entirely agree that the appeal succeeds and that it should be allowed. I accordingly allow the appeal and endorse the order contained in the said judgment.

Judgment delivered by

Belgore, J.S.C.:

I agree with the lead judgment by my learned brother,. Craig, J.S.C. The trial Judge certainly left so much essential facts in evidence inadverted to. This has created a problem which unfortunately the Court of Appeal never resolved. The interest of justice demands appraisal of all essential facts pleaded and in evidence and the only court that could do so is the court of trial. I agree that only a retrial will settle all the issues.

I also therefore allow this appeal and order a retrial before the High Court of Oyo State, Ibadan Judicial Division before another Judge. I make the same consequential order as to costs as made in the lead judgment.

Judgment delivered by

Nnaemeka-Agu, J.S.C.:

This is a further appeal by the plaintiff against the judgment of the Court of Appeal, Ibadan Division. In the High Court, the plaintiffs had brought an action, for themselves and on behalf of Adenko Aje Ojoku Family, against the defendants, claiming a declaration of title to a piece of land verged green in their plan, Exh. A, N250.00 damages for trespass, and perpetual injunction. The action was dismissed and the Court of Appeal also dismissed their appeal against the decision: hence this further appeal. The plaintiffs (hereinafter called the appellants) had due leave to appeal on grounds of fact and mixed law and fact.

It is noteworthy that in the High Court the appellants pleaded that they derived their title from Adenko Aje Ojoku who in turn was granted the land by Balogun Oderinlo, the original owner. The defendants (hereinafter called the respondents) denied that Balogun Oderinlo was the original owner and grantor of the land. Rather, according to them, Delesolu granted the land in dispute to Bilekanle who was their predecessor in title.

After hearing, the learned trial Judge, Ayorinde, J., dismissed the appellants' case in its entirety. However, before he did so, he had made a number of important findings of fact, many of which are relevant to the issues that arise for determination in this appeal.

(i) On the question of who first granted the land in dispute to the predecessor-in-title of the appellants or the respondents he said:

On the totality of the evidence in this case there is no doubt semblance of evidence from both parties that one Balogun Oderinlo granted portions of land to one Delesolu, defendants' grantor in the area of the land in dispute and also to an ancestral relation of the 1st plaintiffs' witnesses.

I must pause here to observe that the learned Judge by the al)ove finding held that both plaintiffs and defendants have proved some sort of title. Portions of land which he did not find were either the same or included the land in dispute were granted by Balogun Oderinlo to Delesolu, defendants' predecessor-in-title and a portion to an ancestral relation of the plaintiffs. The land was "in the area of the land in dispute" which I understand to mean that the land granted to Delesolu and to an ancestral relation of the plaintiffs was each situated in, or lies within the land in dispute. The plaintiffs' case on their pleading was that what was granted to them by Adenko Aje Ojoku was the whole land in dispute. But the above finding stops short of saying that it was the whole, or any identifiable portion, of the land in dispute that was granted to the plaintiffs predecessor-in-title. On the other hand the defendants in their pleading never stated that any land was granted by Balogun Oderinlo to Delesolu. In short, by holding that Oderinlo made a grant to Delesolu he made for the defendants a case they never made for themselves. I shall come back to this later.

(ii) On the conflicting evidence of tradition tendered by both sides, the learned trial Judge held:

In view of what I have said in respect of the evidence of the 1st and 2nd defendants' witnesses, it cannot he said that

there was satisfactory evidence of the defendants as to their traditional title. The two witnesses contradict each other as to whom the original grant of Ayondioro was made.

..................................................

The name of the original grantee being an important issue in this case it is necessary to have uncontradictory and reconcilable evidence from the defendants' witnesses.

Thus he found that the respondents' evidence of tradition was unsatisfactory.

(iii) On evidence of user, he believed the evidence of the 3rd, 4th and 5th appellants' witnesses, grantees of the appellants, that they B built houses on the land in dispute twelve, fifteen, twenty and twenty two years before the trial. He however held that these could not raise any defences of laches and acquiescence in favour of the appellants, as there had been protracted litigations over the land in dispute.

(iv) He found that the appellants have not adduced conclusive evidence of exclusive ownership to the whole area of the land in dispute.

(v) In particular, he found that there is no certainty as to the extent of the land in dispute.

On the last two findings in particular, as it does appear, he dismissed the appellant's case.

On appeal to the Court of Appeal, Ihadan Division, their appeal was dismissed. In the lead judgment Onu, J.C.A., to which Omololu-Thomas and Sulu-Gambari, JJ.C.A., concurred:

(i) he held that on the face of the pleading and evidence and, in particular the appellants' plan, Exh. A, the learned Judge was wrong to have held that the area in dispute was uncertain. The boundaries were well-defined and the certainty and identity of the land in dispute not in doubt. Where contradictions manifest them-selves is in the structures on the land in dispute and their locations. These cannot warrant the conclusion that the identity or boundaries of the land in dispute were uncertain. I may add that the respondents never filed any plan. He cited the case of Chief Omole Are p Chief Adeoye Oba-loro (1968) N.M.L.R. 238, at p.239. But, he concluded, the variance between the evidence proferred by the appellants and their witnesses and the plan, Exh. A, destroys the value of the plan and leaves uncertain the area of the land claimed. Akubueze v. Nwakuche (1959)4 F.S.C. 262; Alade v. Dina 17 N.L.R. 32.

I must pause here to observe that the instant case is distinguishable from both Akubueze's Case (supra) and Atade's Case' (supra) on the facts. In each of these cases there was dispute on the pleadings as to the boundaries. In each, the defendants had to file their own plans which showed different boundaries and features of the land in dispute.

In Alade's Case, even plaintiffs evidence as to the size did not agree with that of the original plan and so he had to file another plan. Also in Akubueze's Case, a similar situation necessitated the plaintiffs (as well as the defendants) filing each another plan. In the instant case, the situation was different. The appellants, as plaintiffs, filed and relied on only one plan, Exh. A and as far as the boundaries and identity of the land in dispute go, they were consistent. The respondents filed no plan as they were expected to do if they were really disputing the identity or boundaries of the land in dispute. As for the differences in the names and claims to ownership, that is only to be expected in every land dispute, otherwise there cannot really be a contest. I am rather of the clear view that it is the law that when in a land case the boundaries and identity of the land are not in dispute but the features therein and their location or claims as to ownership of them are different it would be wrong to dismiss the plaintiffs' claim on the ground that the identity or boundaries of the land in dispute have not been established. See -Titus Sogunle & Ors. v. Amasa Akerele & Ors. (l967) N.M.L.R. 58, at p.60. The learned Justice of the Court of Appeal, who cited this case eventually went back to hold that:

. while Exhibit A was accurately drawn, the variance between the evidence proffered by the appellants and their witnesses and the plan destroys the value of the plan and leaves uncertain the land in respect of which the claim was made........

The differences he adverted to in his judgment were that 3 P.W. stated that there were four houses on the land while 4 P.W. stated that there were about eleven; that one witness said there was no motor road on the land in dispute but the other that there was. The other was the contradiction between 6 P.W. and 5 P.W. as to the distance between the land in dispute and Alafara Ojo Street. I am of the view that none of these so-called contradictions went to the issue of boundaries or identity of the land in dispute. The learned Justices of Appeal were in error to have used this as one of the main grounds for dismissing the appellant's appeal.

(ii) He held that the respondents by their tacit admission that Balogun Oderinlo was the radical owner impliedly failed to prove their pleaded case that Delesolu was the radical owner.

(iii) He finally held that the respondents joined issues with the appellants on the question of possession.

So he held that the learned trial Judge was right to have dismissed the case F because of the appellants' failure to prove exclusive possession.

On further appeal to this court each party set out what they called the issues for determination in the appeal. Upon a close scrutiny of their briefs, it appears to me that whereas those set out by the appellants relate to the issues raised in the grounds of appeal, those raised by the respondents cannot properly be said to have arisen from any grounds of appeal before the court There is, for an example, no cross-appeal or any grounds questioning the appellants' appealing at all when there have been concurrent findings of fact by the two courts below. Besides, the appellants had sought and obtained leave to appeal on grounds of fact and mixed law and fact. Nor is there any issue as to whether or not respondents' case was supported by the appellants. Indeed pone of the four issues for determination as formulated by the respondents has any relevance to the grounds of appeal before the court. This court has stated a number of times that a respondent's primary duty is to support the judgment appealed against by showing that the contentions of the appellant as to the grounds of error are without merit. Also, as they have not cross-appealed, they cannot formulate issues as it were, in nubibus - hanging in the skies. They can only either adopt the issue as formulated by the appellants based on the grounds of appeal before the court or, at best, recast them by giving them a slant favourable to the respondents' point of view, but without departing from the complaints raised by the grounds of appeal.

So the proper issues for determination are as formulated by the appellants, thus:

(2) Whether the learned trial Judge and the Court of Appeal were right to have permitted the respondents to found their claim to title to the piece of land on a grant from Batogun Oderinlo whereas in their pleadings they had alleged that they derived their title from Delesolu and denied that the said Balogun Oderinlo was the settler on the land.

(3) Whether having found that the appellants derived their title from Balogun Oderinlo, it was nevertheless necessary for the appellants to establish evidence of recent user by them.

(5) Whether the Court of Appeal was right to have held that the respondents joined issues with the appellants on the question of possession and whether that question nevertheless remains material having regard to the evidence of D.W.1 and D.W.3, the respondents having admitted that the person from whom the appellants derived their title to the piece of land, namely, Balogun Oderinlo, was the first settler on the land contrary to the respondents' pleading.

These issues formed the basis of the submissions by the learned counsel for the appellants, Mr. Kayode Sofola, who also adopted his brief. As the main thrusts of the arguments have been high-lighted in the lead judgment, I do not need to set them out again. Mr. Aiyedun, for the respondents, also adopted his clients' brief of argument. He replied to the points raised by Mr. Sofola and tried to show that the learned trial Judge was right in his conclusions and ultimate judgment. Both counsel cited several cases in support of their various submissions. I shall refer to those of them I consider useful for the points with which I wish to deal in the course of this judgment.

Before I consider the main issues raised in this appeal, I deem it necessary to deal first with one point raised by the learned counsel for the respondents in his submission. While not disputing the evidence of D.W.1 that:

Oderinlo granted land including the land in dispute to Delesolu originally

- a point the courts below used to base their finding of concurrent title of both sides to the land in dispute - was not pleaded, he submitted that the question of pleading or not is a mere technicality. He submitted, therefore, that as the appellants did not object to the admission of the evidence and it had been acted upon all through, they cannot now raise it and rely upon it. For, it is an irregularity which has been waived.

Now, by a long line of decided cases this court, as well as the Court of Appeal, had reiterated the fact that, pursuant to the principle that it will always lean in favour of doing substantial justice in a case rather than hanging on technicality, it will not reopen a procedural irregularity that has been waived at the instance of a party who could have raised the point timeously. This principle was recently re-affirmed by this court in the case of Nneji & Ors. v. Chukwu & Ors. (1988) 6 S.C.N.J. 132, at pages 139-140, per Wali, J.S.C. So, if the point raised about the respondents' pleading in this case were mere technicality, and so an irregularity, I would have agreed with the respondents' counsel.

The question, therefore, is this: is failure to plead an important fact upon which evidence is eventually given a mere technicality, and so an irregularity? According to Black's Law Dictionary (5th Edn.) p.1310 the word "technical" means "immaterial not affecting substantial rights, without substance." I believe it is in this sense that the word "technicality" is used in connection with our rules of practice and procedure. It was in this sense that Martin, B., used the word in Chesterfield v. Midland Silkstone Colliery Co., Lid. v. Hawkins (1865) 3 H & C. 677 when he stated at p.691:

A technical rule is one which is established by authority and precedent, which does not depend upon reasoning and argument, but is a fixed established rule to be acted upon and only to be discussed as regards its application

Looked upon from this point of view, it appears to me that all our rules of procedure can be classified into two. Some are purely technical in that they prescribe certain procedural steps to be taken, mainly for the convenience of the parties in litigation and the court. But others go to ensure that justice is done to the parties. If a rule prescribes that a defendant shall file his statement of defence within, say, fourteen days of service of the statement of claim, that rule as to time is for the convenience of the parties. The time fixed can be extended on application or waived by the other party. Failure to file a pleading on time is an irregularity: See Dike Nwora V. U. B.A. Ltd. (1978) 2 L.R.N. 149. The rule is purely technical and belongs to the first category. It can be waived. But a rule which states that the defendant shall be served with a writ or other process is more than a mere technicality. It is a matter of substance and cannot be waived. If it is breached, the proceedings are a complete nullity. For, although the provisions of Supreme Court Practice, 1982, Order 2 rule 1, were designed to reverse the decision in Re Pritchard (1963) Ch. 502 decided on the pre - 1964 Rules of the Supreme Court and to abolish the distinction between nullity and irregularity, yet even the learned authors of that book had to admit that:

it may still be that there are other failures or improprieties so serious as to be contrary to natural justice and to render the proceedings in which they occur, and any order made therein, a nullity.

The development of our own law has been towards recognizing that where a breach of a provision of a rule of court amounts to a denial of the rules of natural justice, then it is not a mere irregularity, which could be waived. In Maron Obimonure v. Olumoola Erinosho & Anor. (1966) All N.L.R. 250, this court adopted the principle in Craig v. Kanssen (1943) K.B. 256 and held that a proceeding based on a process which should have been served, but not served, is a nullity. In Lawrence Scot-Emuakpor v. J.L Ukavbe (1975)12 S.C. 41, this court per Bello, J.S.C., (as he then was) held that where a notice of any proceedings is required, failure to notify any party thereto is a fundamental vice and a condition precedent to an exercise of jurisdiction by the court. See also Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 S.C. 1, per Nnamani, J.S.C. These cases go beyond the bounds of mere technicality, mere irregularity. It would be against the principle of audi alteram partem to say that the appellant could have waived a want of service of a plocess of which he had no notice. He could not be said to have had any opportunity of putting across his own case. In R. Anon & Anor. v. Muraino B.O. Elemo (1983)1 S.C.N.L.R. 1, at p.19, Eso, J.S.C., in his lead judgment to which the other eminent Justices concurred, held that those fundamental rights which are either for the benefit of the litigant and the public or in the sole control of the state cannot be waived by any of the parties.

It is from the background of the above decisions that I have to consider the contention of the learned counsel for the respondents that failure to plead the alleged grant by Balogun Oderinlo to Delesolu had been waived and cannot now be raised and relied upon. It appears to me that the rule which required every fact upon which a party intends to rely at the hearing to be pleaded goes to the fundamentals of justice. For no one can defend the unknown. If one has to defend or counter a fact made by his adversary, the one must have had due notice of that fact to enable him prepare for his defence. That is of the very essence of pleading. As it goes to the very root of the rule of audi alteram partem -one of the twin pillars of justice - it would be d misconception to describe it as a mere technicality or an irregularity. It is a matter of substance and cannot, therefore, be waived. Indeed by a long line of decided cases, it has long been settled that any evidence on a fact that ought to have been pleaded, but is not, goes to no issue at all at the trial and ought to be disregarded.

See on this:

George & Ors. v. Dominion Flour Mills Ltd. (1963)1 All N.L.R. 71

Aniemeka Emegokwue v. James Okadigbo (1973) 3 E.C.S.L.R. (Pt.1) 267;

Ogbodo v. Adelugba (1971)1 All N.L.R. 68;

N. I. P. C. v. Thompson Organisation & Ors. (1969)N.M.L.R.

Kaho v Kaho (1975) 2 S.C. 15;

Woluchem & Ors. v. Gudi & Ors. (1981) 5 S.C. 219;

Shaibu v. Bakare (1984)12 S.C. 187-

and so many other cases. The lower courts should, therefore, have completely disregarded that evidence in coming to their conclusions in this case.

If the court below had approached the evidence on record with this point in mind, it would have found from the evidence on record and the conclusion of the learned trial Judge that whereas the appellants traced title to land in the area of the land in dispute to Balogun Oderinlo, the admitted original owner, the respondents failed to do so for the simple reason that it was never their case on their pleading. It was also expressly found by the learned trial Judge that the respondents failed to prove their pleaded origin B of their title by grant in th~t they could not prove that Delesolu on whose title they rely was the original owner and grantor of the land in dispute or that, by any admissible evidence, he had the land granted to him. They can-not plead a grant by Delesolu and be perniitted to rely upon a grant by Balogun Oderinlo. In fairness to the learned trial Judge he found that the respondents' evidence of tradition was unsatisfactory. He did not so find with respect to the appellants'.

The court below held that the appellants were not entitled to a declaration of title because the respondents had also proved that they were in possession of portions of the land in dispute. Said Onu, J.C.A., at page 149:

I agree with learned counsel for the respondents that respondents joined issues with the appellants on the question of possession, vide evidence of 1st D.W. and D.W.3. The appellants' case was properly dismissed for failure by them to adduce convincing evidence of exclusive possession of the land in dispute by them. The trial court' decision, in my view, is unimpeachable.

This brings me to the first real problem in this case. The court below and the court of trial failed to appreciate that, as both parties based their root of title upon customary grant, the first duty of either court was to find first whether the appellants succeeded in tracing their title to Balogun Oderinlo, the admitted original owner. If they did, their possession of any part of the land would be unavailing to the respondents, save, perhaps, by way of an equitable defence. The onus would have been on them to show that their possession was such as to oust the ownership by the appellants through Oderinlo, their predecessor-in-title. The position was in my respectful opinion, rightly put in the case of Mosalewa Thomas v. Preston Holder (1946) 12 W.A.C.A. 78, at page 80 where the West African Court of Appeal stated as follows"

In holding, moreover, that in such a case as this it was incumbent upon the appellant to prove acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that they were the exclusive owners the learned Judge erred. Where the plaintiff is claiming a declaration of ownership based upon long possession then it is incumbent upon him to prove the nature of that possession in such a manner that the inference that he is the exclusive owner may be drawn, but where, as in the present case, the plaintiff traces his tide directly to one whose tide to ownership has been established, it is not necessary that he should prove such acts of ownership. If tide has been so established, then the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner and in such a case the court by applying the A rules of equity rather than those of strict native law and custom will decline to disturb his possession and will refuse a declaration of tide in favour of the original owner. (Italics mine)

Applying the above principles to the instant case,

(i) It appears to me that in view of the opening sentence of the extract set out above, the learned trial Judge and the learned Jusfices of the Court of Appeal were in error to have proceeded to inquire whether the appellants called sufficient evidence to satisfy the pronouncement in Ekpo v. Ita 11 N.L.R. 68 at page 69. For the avoidance of doubt the question of conflicting claims for title will fall to be decided on possession only if the evidence of title by grant were unproven or inconclusive. No such definite pronouncement was made on appellants' claim of title by grant;

(ii) It also appears that the courts below were in error to have proceeded to dismiss the appellants' case on the ground that they did not prove exclusive possession, for the same reason;

The learned Judge, it must be noted, rejected the defence of laches and acquiescence, rightly in my view, on the ground of the protracted litigation between the parties.

Indeed this court has in a number of recent decisions reaffirmed one or the other of the above principles of Thomas V. Holder decision. Reference may be made to the case of O.K.O. Mogaji & Ors. v. Cadbury Nigeria Ltd. & Ors. (1985) 7 S.C. 59, at page 159, Obaseki, J.S.C., said:

Long possession is more a weapon of defence on equitable grounds to defeat claims for declaration of title and trespass than of offence to establish a claim for declaration of title and damages for trespass against the true owner. A claim for declaration of title is not founded on ownership by prescription under native law and custom. It should not be forgotten that the appellants F claim a declaration of title based on a grant under Yoruba native law and custom. Unless the origin of title is valid, the length of possession does not ripen invalid title of a trespasser to a valid ownership title.

See also Jegede & Ors. v. Gbajumo & Ors. (1974)10 S.C. 183, at p.187. See also my decision in SC. 22711985; Ernest Nzekwu & Ors. v. Madam Christiana Nzekwu & Ors. of the l0th day of March, 1989 (Unreported).

Indeed the above extract from the judgment of the court below and the intensity with which the learned counsel for the respondents sought to support the manner the two lower courts used acts of possession to resolve the issue of ownership call for further comments and examination of the true nature of possession in conflicting claims to title to land. In my respectful opinion, they appear to have missed the main point, id est, that possession only ~ raises a presumption of ownership, a rebuttable one at that and cannot, except on pleaded and proven equitable defences, defeat the title of the true owner. Section 145 of the Evidence Act so provides. Ml the decided cases so held. In Lawrence Gregorio Do Costa v Stella Omowale Ikomi (1968) All N.L.R. 394 at p.399 this court, per Lewis, J.S.C., held that:

Possession may under section 145 of the Evidence Act give a presumption of ownership, but it does not do more and cannot stand when another proves a good title.

Their Lordships also emphasized that long possession and acquiescence are really weapons of defence, rather than of offence. As to the position and effect of defendant's possession once the plaintiff proves a good title, they held that it was only that of a trespasser or squatter and would not enable him succeed against the true owner. Even in the often much misunderstood case of D.O. Idundun & Ors. v. Daniel Okumagba & Ors. (1976)9 & 10 S.C. 227 where Fatayi Williams, J.S.C. (as he then was) was simply enumerating the various possible ways of proving title, at pages 24&250, the eminent learned Judge was careful to state that:

acts of long possession and enjoymeut of the land may also be prima facie evidence of ownership

under section 45 of the Evidence act and a presumption of ownership under section 145. As has happened much too often, the court below committed the common error, referable to the way that decision has been misunderstood, of thinking that in all circumstances once a defendant proves to be in occupation of parts of the land in dispute he has defeated the plaintiffs' tide. This is not so. Prima facie evidence is different from, and in fact the opposite of, conclusive evidence (Archibong v. ita 14 W.A.C.A.520); and presumptive evidence is rebuttable. None of them can defeat the title of a true owner except on proven equitable grounds.

As for the principle in Ekpo v. Ita (supra) it is, as I have said only when the evidence of grant is unproven or evidence of tradition inconclusive that it for consideration. I shall advert further to the manner that case was introduced and used in this case. The court below found, contrary to the views trial Judge, that the boundaries and identity of the land in dispute were certain but that only the names and location (whether in the appellants' or respondents' compound) were in dispute. But, based on what looks like a concurrent possession, the court dismissed the appellants' case on ground that the appellants did not prove exclusive possession spreading length of time and numerous and positive enough to war-that the appellants were exclusive owners. I can, perhaps than repeat what the Federal Supreme Court said in Okechukwu & Ors. v. Okafor & Ors. (1961) 1 All N.L.R. 685 at p.691, Taylor, F.J., said:

It is essential to bear in mind when reading or relying upon this decision i.e. Ekpo v. Ita (supra) also to bear in mind the decision ~ this zourt in the case Abudulai v. Ramom Manue 10 W.A.C.A. 172 at 174 where Brook, 3., said that:

In this connection we think it necessary to point out that that case seems to have been misunderstood (that is the case of Ekpo v. Ita) as going further than it infact does, owing possibly W the too general terms of the wording of the judgment. It is clear that the dictum does not apply where, as in this case, the plaintiff relies upon and proves title by grant; the onus as to acts of ownership is only thrown upon the plaintiff where the other evidence of title is inc6nclusive or entirely lacking.

I adopt this as a correct statement of the law and as relevant in this case.

This brings me to the second, and obviously decisive, problem in this case. As I observed above, the learned trial Judge found that the appellants proved that Balogun Oderinlo granted to their predecessor-in-title a portion B of land in the area of the land in dispute. This is different from saying that what was granted to them was land coterminous with the land in dispute, or an identifiable part thereof. It cannot, therefore, be said that what the learned Judge accepted was the case of the appellants that what was granted to them was the land in dispute. The question is, therefore, whether this court can now make the finding from printed record. It very much depends upon the nature of the evidence.

Now the law is that the duty of appraising and evaluating evidence given at the trial is pre-minently within the province of the court of trial which has the singular advantage of seeing and hearing the witnesses testify, although an appellate court may disturb the judgment of the court of trial in strictly limited cases such as when it is satisfied that the decision on the facts is wrong or perverse, or not a result of improper use of judicial discretion or that the trial court failed to evaluate the evidence, or generally to take proper advantage of its having seen and heard the witnesses testify. See on these:

Aruna Kudoro v. Alaka (1956) 1 F.S.C. 82

Asani Balogun & Ors. v. Alimi Agboola (1974)1 All N.L.R. (Pt.2)66,p.73.

In this case, the learned trial Judge has, with respects, made prevaricatory findings. He suggested that both parties have concurrently a semblance of title to the land in dispute. He also found that the grant to the appellants was, quite contrary to any evidence before him, in the area of the land in dispute not the land in dispute or any identifiable part of it. It is a fundamental principle of our land law that the quanta of rights and interests in land are carved out on a plane of time. As it is so, it seems inconceivable tome that two conflicting claimants to the same quantum of right over land, in this case, customary title, can be adjudged to have concurrent tide. It appears tome, also with respects, that the learned Judge did not take proper advantage of his having listened to the testimonies of witnesses and watched them testify. The Court of Appeal was wrong to have glossed over them. I am satisfied that I should intervene and set aside the wrong finding on the issue.

The next question, that is whether I can go ahead and make a finding on the point also rests on settled principles. Clearly it is, in this case, a question that can only be resolved by accrediting some appellants' witnesses and discrediting some of the respondents. Such an issue which rests squarely upon credibility of witnesses cannot, and ought not, to be resolved from printed evidence.

See Lawal Buraimoh Fatoyinbo & Ors. v. Seliatu Abike Williams (1956) 1 K.S.C. 87. Watt or Thomas v. Thomas (1947) A.C. 484, at p.487-8. In the circumstances, I have no alternative but to allow the appeal but remit the case to the High Court for a trial de novo before another Judge.

The appeal therefore succeeds and is allowed for the above reasons and the fuller reasons contained in the judgment of my learned brother, Craig, J.S.C. I set aside the judgment of the lower courts and remit the case to the High Court for trial de novo before another Judge.

I set aside the costs awarded in the lower courts and award costs to the appellants against the respondents as assessed in the lead judgment.

Counsel

Kayode Sofola Esq.	.......	For the Appellants
Akin Aiyedun, Esq.	.......	For the Respondents

Nigeria LII

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