In The Supreme Court of Nigeria

On Friday, the 20th day of July 1990

SC 203/1987

Between

Mrs. Bisi Olaloye                    .......                      Applicant

And

Madam Saratu Akinpelu Balogun           .......            Respondent

Judgement of the Court

Delivered by

Agbaje. J.S.C. 

The plaintiff, Mrs. Bisi Olaloye, sued the defendant, Madam Saratu Akinpelu Balogun, in a Lagos High Court, Ikeja Division, claiming the following reliefs:-

(1)    Declaration of title to Certificate of occupancy in respect of a piece or parcel of land measuring 50' X 100" situate being and lying at Oshipitan Street, Bariga, Lagos State.

(2)    N 100 damages for trespass committed on the said piece of Land by the defendant and her agents.

(3)     Perpetual injunction restraining the defendant and her agents from committing further acts of trespass on the said piece of land.

Pleadings were ordered, filed and delivered. The defendant set up a counter claim in her statement of defence. It is not necessary to say what the counter-claim was about since nothing turns on it in this appeal.

The case proceeded to trial before Oshodi, J., who having heard the parties and their witnesses, gave his judgment in the case on 6th July, 1984 whereby he dismissed the whole of the plaintiff's claims and the defendant's counter claim.

In coming to the above conclusions the learned trial Judge held as follows:-

"It is common ground that the land in dispute belonged originally to the Oloto Chieftaincy Family. The plaintiff alleged that the Oloto Chieftaincy family granted a large piece of land to one Kofo Gbangbade of which the land in dispute forms a portion in 1923. The plaintiff in support of her claim relies on Exhibits 'A' and 'D' to 'D3'………….Having said so much, let me now consider the claim of the plaintiff tracing her root from the Oloto Chieftaincy. It is . . . my view that Kofo Gbangbade had nothing from Oloto Chieftaincy Family for no evidence was let to confirm his interest.

The plaintiff tried to trace her title to the Oloto Chieftaincy family through Kofo Gbangbade. The learned trial Judge. having held that Kofo Obangbade got no land from Oloto Chieftaincy family. inevitably came to the conclusion that the plaintiff has not established her claim to title to the land in dispute. As regards the defendant's claim to the land in dispute, the learned trial Judge held thus:-

Let me now consider the claim of the defendant. The defendant is relying on both Exhibits ‘C' and ‘E'. The legal interest in respect of this land as I have stated above rests in the Oloto Chieftaincy Family. Exhibit 'C' is the deed of conveyance by which the Oloto Chieftaincy family vested legal interest in respect of the land in the plan attached to it to Rufai Akinhanmi the predecessor in title of the defendant. The plan attached to Exhibit 'C' is the same as the area verged green in Exhibits 'F' and ‘L'. The land in dispute which is the area verged yellow in Exhibits 'F’ and 'L' does not fall within the area verged red in the plan attached to Exhibit 'C'. The plaintiff now claim that the land in dispute is outside the land sold to Rufai Akinhanmi. The defendant explained that the plan attached to Exhibit 'C' does not show the whole area of the land purchased by Rufai Akinhanmi, for the land purchased extend to the area verged red in Exhibits 'F' and 'L'. In support of this claim the defence said that both areas are adjacent and there is sufficient evidence from the defendant, the 2nd D.W. and the 3rd D.W. as well as the 2nd P.W.'s pieces of evidence that the children of the defendant's predecessor in title have been dealing with the land comprised in area verged red in Exhibits 'F' and 'L' unmolested. They have sold portions of this and the sales are confirmed by Exhibits 'K' to 'K3' which are the conveyance they executed in respect of the land. These plots are fully developed ……… Rufai Akinhanmi Olaleye obviously had ownership of the land verged green and red in Exhibits 'F' and 'L' and the land in dispute falls within it. At the death of Olaleye his children after obtaining Letters of Administration, Exhibit 'M', in respect of their father's estate sold the land in dispute to the defendant as evidenced by Exhibit 'J'. Exhibit 'J' vests a legal title on the defendant. (Italics mine)

Having held that the defendant has a better title to the land in dispute the learned trial Judge proceeded thus:-

On trespass it was held in Okorie and Others v. Udom and Others (1960) 5 F.S.C. 162; [1960] SCNLR 326 that where there is a claim for trespass coupled with injunction it is incumbent on the Judge to consider the question of title to the land or the exclusive possession of it. I have in this case dealt exhaustively on title and I have held that the defendant has a better title and the law ascribes possession to her. A person cannot trespass on his own property, the claim for damages for trespass therefore fails.

The claim for perpetual injunction also fails since there is no trespass.

The plaintiff appealed against the decision of the trial court to the Court of Appeal, Lagos Division, where again she lost. The defendant did not appeal against the order of the trial court dismissing her counter-claim.

Kolawole, J.C.A., in his lead judgment in which Nnaemeka-Agu, J.C.A., as he then was, and Kutigi, J.C.A., concurred, upheld the finding of the learned trial Judge that the plaintiff has not established her title to the land in dispute. With particular reference to the finding of the learned trial Judge as to title in the land in dispute being in the defendant, the learned Justice of the Court of Appeal said in his lead judgment:-

The learned counsel for the plaintiff further contended in the reply brief that the defendant's title in exhibit J is void in law as the land purported to have been conveyed to her in exhibit J is outside the plan attached to exhibit C her vendor's deed of conveyance. Counsel further submitted that exhibits K to K3 are also void on the same ground. The important point to remember here is that the defendant did not counter-claim for a declaration and the effect of the judgment of the dismissal of the plaintiff's claim is not a (sic) declare that the defendant is the owner of the land. The plaintiff failed because of the weakness of her own case. There is also no claim by the plaintiff to declare any deed of conveyance void for any reason. [See the observation of Brett, J.S.C., in Bello Adedibu Mogaji v. Olofa (1968) N.M.L.R. 462 at 465).

This is a further appeal by the plaintiff against the judgment of the trial court dismissing her claims which judgment was affirmed by the Court of D Appeal.

In this court briefs of arguments were filed on both sides. The plaintiff/appellant has identified six issues as arising for determination in this appeal. For my part, I am satisfied that the following four issues said by the plaintiff to arise for determination in this appeal have taken cognisance of all the issues properly arising in the plaintiff's grounds of appeal. These four issuesare:-

1.     Whether the Court of Appeal ought to have entered judgment for the plaintiff/appellant on her claims for damages for trespass and injunction on the evidence on record.

2.      Can the defendant/respondent lay any valid claim to the land in dispute when on the unchallenged evidence and the finding of the learned trial Judge that the land in dispute which is the area verged yellow in Exhibits "F" and "L" does not fall within the area verged red in the plan attached to Exhibit C (the defendant's root of title)?

3.     Whether the Court of Appeal was not under a duty in law to pronounce on the validity or otherwise of documents tendered by parties in arriving at the conclusion as to who has a better right or title to the land?

4.      If so, was the Court of Appeal not under a duty in law to have declared Exhibit J (defendant's deed of conveyance) and Exhibits K to K3 void in law on the principle of nemo dat quod non habet and/or for the purposes of determining the relative strengths of the titles canvassed by the parties.

The argument of counsel for the plaintiff both in the plaintiff's brief of argument and in oral submissions in court ran thus:-

5.4     It is respectfully submitted that trespass to land in law constitutes the slightest disturbance to the possession of land by a person who cannot show a better title or right to possession. Amakor v. Obiejuna (1974) S.C.67 at 75.

5.6     The learned trial Judge found at (p 180 lines 22) that "The plan attached to Exhibit C is the same as the area verged green in Exhibits "F" and "L." The land in dispute which is the area verged yellow in plan attached to Exhibits "F" and "L" does not fall within the area verged red in plan attached to Exhibit "C."

5.7     Exhibit C is the conveyance of the defendant's Vendors. Exhibit J is the defendant's deed of conveyance (pp.193 - 198).

5.8     The recital of Exhibit J provides:

2.       By a conveyance dated 4th day of March, 1959 and registered as No.23 at page 23 in Volume 293 of the lands Registry in the office at Ibadan now at Lagos the "Oloto Land" became vested absolutely in Rufai Akinhanmi Olaleye (deceased).

5.9     It is respectfully submitted that the effect of the above finding is that the land purported to have been sold to the defendant by her Vendors is outside the land vested by them by virtue of Exhibit C and that the defendant's vendor are bound by the recital.

5.10     The appellant humbly submits that ………………………….. the defendant/ respondent cannot possibly claim the land in dispute as her property since the land purportedly purchased by her by virtue of Exhibit J falls inside that of the plaintiffs Vendor as confirmed by the defendant's surveyor 2nd D.W. in Exhibit L (my own italics)

5.11    It is respectfully submitted that the defendant having conceded that the land purported to have been purchased by her by virtue of Exhibit J is outside the land vested in her vendors by virtue of Exhibit C non-proof by the plaintiff of her derivative title from Oloto Chieftaincy becomes irrelevant and argument of such was non-sequitur. The appellant relies on the decision of this Honourable court in a sister case where facts are similar namely the case of Alhaji Isiaka Dosunmu v. Beatrice Adesomo Joto (1987)4 N.W.L.R. (Pt.65) 297 at 308 to support our contention in this regard.

5.12    In the premises of the finding of the learned trial Judge supported by the two surveyors called by the parties, the defendant/respondent who is shown to have no interest in the land in dispute is not entitled to question the right of the plaintiff'appellant who was in prior exclusive possession of the said land to continue to enjoy same. See Dosunmu v. Joto (1987) 4 N.W.L.R. (Pt.65) 297 at 308.

5.13   The plaintiff/appellant having established that the defendant/respondent had no interest in the land in dispute she is entitled to succeed on her claims for damages for trespass and injunction as the slightest evidence of possession is enough to oust a trespasser.

6.1     The Court of Appeal at (p.293) refused to declare that Exhibit J (defendant's conveyance) and Exhibits K to K3 are void in law on the ground that there was no claim to declare any deed of conveyance void for any reason when it was clear that Exhibits J, K to K3 fall outside the land purported to have been vested in the defendant's vendors by virtue of Exhibit C.

6.2     It is respectfully submitted that a court of law is under a duty to pronounce on the validity or otherwise of documents of title tendered in evidence by the parties in arriving at a decision.

The arguments of counsel for the defendant in reply to the above ran thus both in the respondent's brief of arguments and in counsel's oral submissions in court:-

5.2     Both the trial court and the Court of Appeal have rightly and correctly approached the issue from the standpoint of the pleadings and the evidence adduced which shows that the matter is a legal battle between Moses Adewale Family and Rufai Akinhanmi Family.

5.3     From the pleadings and the evidence adduced, the crucial question on which issues were joined was whether the area marked Red in Exhibits "F" and "L" belong to Moses Adewale Family, the predecessors-in4itle of the plaintiff; or to Rufal Akinhanmi Olaleye Family, the predecessors-in-title of the defendant. (See Paragraphs 4 to 7 of the Amended Statement of Claim at Pages 43/44 of the Records) and also (Paragraphs 4,5, 8, 19,20,21,22,23, 24 and 25 of the Amended Staternent of Defence at Pages 132-138 of the Records.)

5.5     The learned Justices of the Court of Appeal in their Judgment at Pages 287 to 295 made concurrent findings and agreed with the conclusion reached by the learned trial Judge at Page 181 lines 22 to 25 of the Records that Rufai Akinhanmi Olaleye obviously had ownership of the land verged Green and Red in Exhibits "F,' and "L" and that the land in dispute fall within it. A case of 'nemo dat quod non habet' does not therefore arise and Exhibit J is not void.

5.9     Furthermore, it is submitted that in the instant case, the learned trial court Judge and the Court of Appeal Justices have made concurrent findings that the predecessors-in-title of the appellant have failed to prove that the area marked Red on which falls Exhibits A and J, K to K3 was purchased by them.

8.       The arguments of the appellant with regards to Issues 5 and 6 (3 and 4 above) seem to overlook the following salient points in the whole exercise:-

(a)     Exhibits J, K to K3 fall within the area marked Red which the defendant's predecessors-in-title pleaded at Paragraph 24 in the Amended Statement of Defence at Page 138 of the Records to form portion of the land sold to them by Oloto Chieftaincy Family and over which they have been exercising numerous acts of ownership and possession.

9.1     Since the trial court had found that Exhibits J, K to K3 fall within the area coloured Red which the defendant's predecessors-in-title, Rufai Akinhanmi Olaleye pleaded and testified on oath to form portion of the unsurveyed land bought from Oloto Chieftaincy Family over which they have sold several plots to people who have built on them, it is unnecessary for the Court of Appeal, which did not disturb the lower court's finding to make any declaration in respect of the Exhibit J since the defendant never claimed for Declaration of Title.

8.3     It is humbly submitted that in the instant case, the maxim 'nemo dat quod non habet' does not apply to Exhibits J, K to K3 because they were documents relating to portions of land found to belong to Rufai Akinhanmi Family and not land proved to belong to Moses Enimo Adewale by the trial court and the Court of Appeal.

8.4     Besides Exhibits K to K3, it should be noted that even the Surveyor, Mr. M. A. Kukoyi admitted unhesitatingly that the plots of land given to him by Moses Adewale Family had been developed by someone who bought from Rufai Akinhanmi Olaleye Farnily.

I will consider all the four issues I have indicated in this judgment together. I have no doubt in my mind that counsel for the appellant is right in his submission to us that in the instant case the Court of Appeal was under a duty to pronounce on the validity of the various documents of title tendered in this case including Exhibits J, L, K1 - K3 tendered by the defendant. I do not see how it can be otherwise when one of the main issues in the case is as between the plaintiff and the defendant who has proved better title to the land in dispute. Resolution of this issue must necessarily involve consideration of the validity of the competing documents of title. In such a situation the fact that there is no claim by the defendant for title to the land in question or one by the plaintiff for any deed of title to be declared void or set aside will not prevent the court seised of this case in which the various deeds of conveyances were tendered from pronouncing on the validity of each of the instruments of title relied upon with its attendant consequences.

The following passages in the judgment of the old West African Court of Appeal in Adeshoye v. Shiwoniku 14 W.A.C.A.86 and 87 show that what I have just said is the correct approach in such a situation:-

The plaintiff/respondent claimed damages for trespass which he alleged had been committed by the defendant/appellant to land situate at Kayaoja Village, Lagos, belonging to the respondent.

The appellant admitted entering upon the land in question, but claimed to have done so as of right, being the purchaser in fee simple, as evidenced by a Deed of Conveyance dated 14th G January, 1950. ... The appellant sought to defeat the respondent's claim by setting up the Conveyance dated 14th January, 1950, under which he claimed to be the owner in fee simple of the land in dispute. The validity of that conveyance was put in issue by the respondent, and, in my opinion, the learned trial Judge was bound to determine the issue so raised. Once it became clear that H the grantors had purported, as they did, to convey a title which they did not possess, the respondent being in possession of the land could successfully maintain an action for trespass against the appellant. (Italics mine)

So, Jam satisfied Kolawole, J.C.A., was in error when in the lead judgment he refused to consider the arguments of counsel for the appellant in that court on the validity of Exhibits J, K, K1 - K3, the documents of title upon which the defendant/respondent relied to defeat the plaintiff's claim because, according to Kolawole, J.C.A. (1) there was no claim by the plaintiff to declare any deed of conveyance void for any reason and (2) the defendant did not counter-claim for title to the land in dispute. Neither reason can, in my judgment, be a valid ground for the failure of the learned Justice of Appeal to consider the arguments in question in the instant case. The decision in Bello Adedidu v. Olofa (supra) upon which he relied does not at all sup-port such a course. The only passage in Adedidu v. Olofa (supra) which can possibly have any relevance to the reason (2) given by the learned Justice of Appeal is as follows as 465 of the report:-

To sum up, on the Judge's own view of the facts we do not consider that he ought to have granted a declaration, since the plaintiff had not satisfied him of the truth of his claim as pleaded. We are not prepared to make a more favourable finding than he did, and the consequence is, as has often been held in cases of this kind, that, the claim ought to have been dismissed altogether. The defendant did not counter-claim for a declaration, and the effect of this judgment is not to declare that they are the owners of the land. The plaintiff fails because of the weakness of his own case, and we need not deal with the criticisms which have been made of the case put forward by the defendants except to say that they do not strengthen the plaintiffs' case.

Evidently this is not an authority for saying that the validity of the defendant's documents of title cannot be examined in a case of this nature in the absence of a claim by the plaintiff to declare them void or set them aside and in the absence too of a counter-claim for title to the land by the defendant.

Counsel for the defendant has not altogether argued that the view of the Court of Appeal has concluded the matter against the plaintiff. He has argued that having regard to the evidence in this case, Exhibit C taken along with Exhibits K - KJ K3 has established the title of the defendant to the land in dispute, which title the defendant has traced to Oloto Chieftaincy family.

Counsel drew our attention to paragraphs 19 and 20 of the Amended Statement of defence which say:-

19.    The defendant avers that by virtue of a Deed of Conveyance dated the 4th day of March, 1959 and registered as No.23 at Page 23 in Volume 293 of the Lands Registry at Ibadan (now in Lagos) Portion of the said land which belonged to Oloto Family and known as Oloto Land became vested in Rufai Akinhanmi Olaloye in fee simple absolute in possession.

20.   The defendant avers that the land conveyed to Rufai Akinhanmi Olaloye as per the Deed of Conveyance mentioned in paragraph 19 of this Amended Statement of Defence is only a Portionof the entire land sold to the said Rufal Akinhanmi Olaloye by the said Oloto Family.

Counsel also drew our attention to the printed evidence in support of these averments in the amended statement of defence and the evidence surrounding Exhibits K, Ki - K3. The clear implication of this argument is that the lands to which the deeds of conveyance Exhibits K, K1 - K3 relate are outside the land conveyed by Exhibit C but within the rest of Oloto Chieftaincy family land which Oloto family sold to the defendant's predecessor-in-title but not included in the land to which Exhibit C relates.

It is conceded I must mention again that the land to which Exhibit C relates does not include the land in dispute in this case. So evidently Exhibit C cannot give the defendant any title to the land in dispute. It equally follows that any document which has Exhibit C as its root of title cannot give the defendant any title to the land in dispute. This takes me to the consideration of Exhibits K, K1 - K3 in the light of what I have just said.

The recital in K states, inter alia, as follows:-

Under and by virtue of a Deed of Conveyance dated the 4th day of March, 1959 and registered as No.23 at pa ge 23 in volume 293 at tl'.e Lands Registry, Ibadan, now in Lagos, the late Rufai Olaleye Akinhanmi became seised of or otherwise well and sufficiently entitled to certain lands and hereditaments a portion which is hereinafter described and expressed to be hereby granted and conveyed for an estate of inheritance in fee simple absolute in possession free from all incumbrances." (Italics mine) The recital in K1 states inter alia as follows:-

All that piece or parcel of land situate, lying and being at Ogunbekun Street, Mafowoku, Bariga, Lagos State, which in

tended to be hereby conveyed to the purchasers forms a portion of a larger area of land at Mafowoku, Bariga, Lagos State which belonged to and was vested in Oloto Chieftaincy Family and hereinafter called "the Oloto Land."

By conveyance dated 4th day of March, 1959 and registered as No.23 at page 23 in Volume 293 of the Lands Registry in the office at Ibadan now at Lagos "the Oloto Land" became vested absolutely in Rufai Akinhanmi Olaleye (Deceased)." (Italics mine)

The recitaL in Exhibit K2 states inter alia:-

All that piece or parcel of land situate, lying and being at Ebun-Olorun Street, Mafowoku, Bariga, Lagos State which is intended to be hereby conveyed to the Purchasers forms a portion of a larger area of land at Mafowoku Bariga, Lagos State which belonged to and was vested in Oloto Chieftaincy Family and hereinafter called "the Oloto Land."

By conveyance 4ated 4th day of March, 1959 and registered H as No.23 at page 23 in Volume 293 ofthe Lands Registry in the office at Ibadan now at Lagos "the Oloto Land" became vested absolutely in Rufai Akinhanmi Olaleye (Deceased). (Italics mine)

The recital to Exhibit K3 states inter alia as follows:-

Whereas under and by virtue of a Deed of Conveyance dated the 4^th of March 1959 registered as No. 23 at page 23 in Volume 293 at the lands Registry Ibadan now in Lagos, the late Rufai Olaleye Akinhanmi became seised of or otherwise well and sufficiently entitled to certain Lands and hereditaments a portion of which is hereinafter described and expressed to be hereby granted and conveyed for an estate of inheritance in fee simple in possession and for ever free from all incumbrances….. (Italics mine)

The deed of conveyance referred to in each of Exhibits K, K~ -K3 as the root of title of the vendor therein is the deed of conveyance dated 413159 registered as No.23 at page 23 in volume 293 at the lands Registry Ibadan now in Lagos which is the very document pleaded in paragraph 19 of the Amended Statement of defence which again is Exhibit C in these proceedings.

As regards the relationship of the land conveyed by the deed of conveyance Exhibit C with the land in this case the learned trial Judge found, and this was not challenged in the lower court or now before us:-

Exhibit 'C' is the deed of conveyance by which the Oloto Chieftaincy family vested legal interest in respect of the land in the plan attached to it to Rufai Akinhanmi the predecessor in title of the defendant. The plan attached to Exhibit 'C' is the same as the area verged green in Exhibits F' and 'L'. The land in dispute which is the area verged yellow in Exhibits F' and 'L does not fall within the area verged red in the plan attached to Exhibit ‘C’.

It follows from this finding that anyone basing his title to the land in dispute on Exhibit C cannot have any title at all to the latter for the obvious reason that Exhibit "C" has nothing to do with it.

Having made the above finding as to the relationship between Exhibit C and the land in dispute, the learned trial Judge then went on to accept the evidence for the defendant that the Exhibit C relates to only a portion of the whole or entire land sold by Oloto Chieftaincy family to Rufai Akinhanmi Olaleye deceased, the predecessor in title of the defendant, which land includes the land in dispute, the sale being under native law and custom as pleaded in paragraph 20 of the defendant's amended statement of defence read along with paragraph 4 thereof.

The learned trial Judge then went on to hold that the predecessors in title of the defendant have exercised acts of ownership on the area of land in question not covered by Exhibit C, as evidenced by the deeds of conveyance Exhibits K, K1 - K3. And so relying on Idundun v. Okumagba (1976) N.M.L.R. 200 at 210 - 211, the learned trial Judge held that the title of the predecessors-in-title of the defendant to the land in dispute has been established.

Having regard to what I have said earlier on in this judgment, the recitals in Exhibits K, Ki - K3 not only belie the finding of the trial Judge that they, each of them, relate to the land in dispute but also establish it that each of them has Exhibit "C" as the root of title of the vendor therein and nothing else. It will be recalled that each of Exhibits K, K1-K3 came into existence before the present action was instituted.

In the case in hand, we are faced with the concurrent findings of fact of A the two courts below on the issue of title of the defendant to the land in dispute. And in this regard I will refer to the following passage in the opinion of the Privy Council in The Stool of Abinabina v. Enyimadu 12 W.A.C.A.171 at 173:-

The respondents submitted that they were entitled to judgment since there were concurrent findings of fact in the West African Courts which, applying the principles laid down in Srimati Babhabati Devi v. Kumar Ramendra Narnyan Roy ought not to be disturbed. But the rule as to concurrent findings is subject to certain exceptions one of which is clearly stated by Lord Thankerton at page 259 of the case cited as follows:-

In order to obviate the practice there must be some miscarriage of justice or violation of some principle of law or procedure.

After defining miscarriage of justice, Lord Thankerton continues:- 

The violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure whose application will have the same effect.

I will also like to be guided by the following passage in the judgment of this court in Fashanu v. Adekoya (1974)1 All N.L.R. (Part 1)35 at 41 - 42:-

The parties gave evidence and called witnesses and indeed there was on each side a great deal of hard swearing. Undoubtedly, the duty of the court in ascertaining the truth in those circumstances is all but easy and the test of logic may be as availing to one of the parties as it is to the other. But there was produced by both parties a large body of documentary evidence containing a number of letters and other documents and, as argued by learned counsel for the plaintiff, it is the duty of the learned trial Judge in a case like the present to test die probability of the case of either of the parties by reference to relevant documents which represent evidence of some more or less permanent or perhaps unassailable character. (Italics mine)

I have said earlier on in this judgment that the recitals in each of ExhIbit3 K, Ki - K3 belie the suggestion that any of them have any connection with the land in dispute. So, I have no doubt that the concurrent findings of fact at issue were based on a mistaken view that each of exhibits K, KI -K3 relates to land not covered by the conveyance Exhibit C. Both the trial court and the Court of Appeal fell into this error because of their failure to make full use of each of Exhibits K, Ki - K3 written evidence of a permanent and unassailable character, as a yardstick for testing the veracity of the oral evidence in this case.

If the test had been applied, as I have done in this judgment, it would have been apparent to the trial court, and if not, to the Court of Appeal, that each of Exhibits K, Ki - K3 was an offshoot of Exhibit C which is not related to the land in dispute. It would also have been apparent to the trial court or to the Court of Appeal, that in the absence of Exhibits K, Ki - K3 there was no evidence to support the claim of the defendant's title to the land in dispute. In fact, as I have said, hoth the trial court and the Court of Appeal based their decisions on the issue of title in favour of the defendant solely on Exhibits K, Ki –K3.

Another way of looking at the point I am considering and with the same result as I have just reached is this. This court in Abiodun & Ors. v. Adehin (1962) 1 All N.L.R. 550 at 555 relying on Section 131(1) of the Evidence Act has said that once there is a document evidencing sale of land, oral evidence of the sale would be excluded and the question as to what land was sold has to be settled by reference to the document. So in the instant case oral evidence as to the land sold by each of Exhibits K, Ki - K3 is inadmissible. The points as to the land sold by Exhibits K, Ki - K3, ought to have been decided by reference to these documents, as I have done, and not by reference to the oral evidence in this regard as the trial court and the Court of Appeal had erroneously done. The result would then be that Exhibits K, Ki K3 are related not to the land in dispute which is not covered by Exhibit C the root of title of the vendor in these deeds of conveyances.

So, I am satisfied that in the instant case there was neglect of some principle of law or procedure by the two courts below in the course of arriving at their decisions on the issue of fact at issue, whose application would have shown, as I have hitherto demonstrated, that their finding that the defendant has title to the land in dispute cannot stand.

On the authorities I am therefore satisfied that the concurrent findings of fact of the two courts below that the defendant has legal title or for that matter any title to the land in dispute must be and is hereby set aside.

The upshot of all I have hitherto said is that, in my judgment, on a proper evaluation of the printed evidence the correct conclusion is that the parties to this case, that is, the plaintiff and the defendant, neither of them, have proved any title to the land in dispute.

The plaintiff's claims are for:-

(1)     Declaration of title to a certificate of occupancy in respect of the land in dispute;

(2)     damages for trespass to the land and;

(3)     for an injunction against further trespass to the land.

Because of the failure of the plaintiff to prove her title to the land in dispute, her claim for a declaration of title must fail. It does not however necessarily follow from this that her claims for damages for trespass to the same land and for an injunction against further trespass must fail too. This has been pointed out in several decisions of this court.

For instance in Oluwi v. Eniota (1976) N.M.L.R. 339 at 340, this court 8a1d as per Lewis, J.S.C. :-

The learned trial Judge after dealing at some length with the claim for a declaration of tide turned towards the end of his judgment to the issue of trespass and said:-

With regard to the claim for damages for trespass, I must say that there is no clear proof of possession on the plain-tiff's part. There must be sufficient possession to maintain trespass. As Best, C.J., stated in Revett v. Brown must be clear and exclusive possession.

In our judgment the learned trial Judge rightly appreciated that the claim for trespass here was independent of the claim for a declaration of title and rightly appreciated that the success of the claim must first turn on whether the plaintiff had proved his possession of the land in issue and the learned trial Judge found he had not.(Italics mine)

Trespass to land is an interference with possession of land. For the plaintiff to suc~ed in her claim for damages for trespass to the land in dispute it will be sufficient if she proves that prior to the trespass complained of, she was in actual and exclusive possession of the land. Her possession of the land will be good enough to maintain an action for trespass against the defendant who as I have said has no title to the land in dispute. See Delany v. Smith (1946)2 Ml E.R. 23 and Shell B. P. Petroleum D.C. of Nigeria v. Saiab Abidi (1974)1 S.C. 23.

The plaintiff pleaded and gave evidence of her possession of the land in dispute. The evidence was denied by the defendant who in turn gave evidence as to her being in possession of the land at all times material to this case. The learned trial Judge made no findings on the conflicting evidence as to whether the plaintiff was in possession of the land in dispute prior to the trespass she complained of.

It will be recalled that the learned trial Judge ascribed possession of the land in dispute to the defendant having wrongly, as it has now turned out in this judgment, found that she has proved legal title to it as against no title and rightly too in my judgment - in it by the plaintiff.

A finding of fact on the issue of possession in the circumstances of this case depends on the credibility of the witnesses who testified in this regard. This is the province of the trial court and an appellate court cannot in the circumstances make a finding of fact on the point. See Akinola v. Oluwo (1962) 1 All N.L.R. 224.

The conclusion I reach is that this court cannot properly enter judgment for either side on the issue of trespass to land and an injunction against I further trespass.

In the result the appellant's appeal is allowed in part. The order of the trial court and of the Court of Appeal dismissing the plaintiff's claim for declaration of title to certificate of occupancy is affirmed. The order of the trial court and of the Court of Appeal dismissing the appellant's claims for damages for trespass to the land and for an injunction against further trespass is hereby set aside. The claims for damages for trespass and for an injunction are remitted to another Judge of the Lagos High Court for a retrial with the directions that neither the plaintiff nor the defendant has title to the land in dispute. The plaintiff/appellant is entitled to her costs against the defendant/respondent in this court which I assess at N500.00 and in the Court of Appeal which I assess at N300.00. The costs of the abortive trial in the High Court shall abide the result of the retrial.

Judgment delivered by

Uwais, J.S.C.

I have had the advantage of reading in draft the judgment read by my learned brother, Agbaje, J.S.C. I entirely agree with the reasons and conclusion therein. Accordingly, I too will allow the appeal and I adopt the orders contained in the judgment.

Judgment delivered by

Karibi-Whyte, J.S.C.

I have had the privilege of reading the judgment of my learned brother, A.G.O. Agbaje, J.S.C., in this appeal. I agree that this appeal be allowed.

I have nothing to add to the reasons given in the judgment of my learned brother.

I adopt the order made and costs awarded in this appeal.

Judgment delivered by

Kawu, J.S.C.

I have had the privilege of reading in draft, the lead judgment of my learned brother, Aghaje, J.S.C., which has just been delivered. I agree entirely with his reasoning and conclusion. For the reasons stated in the said judgment, I too will allow the appellant's appeal in part. Accordingly, I will affirm the order of the trial court and that of the Court of Appeal dismissing the plaintiff’s claim for declaration of title to a certificate of occupancy to the land in dispute, and will set aside both courts' order dismissing the appellant's claim for damages for trespass to the land in dispute and for an injunction. I abide by the consequential orders made in the lead judgment, including the orders as to costs.

Judgment delivered by

Wali, J.S.C.

I have had the advantage of reading in draft the lead judgment of my learned brother, Agbaje, J.S.C. I entirely agree with his reasoning and conclusions arrived thereat.

Having nothing more useful to add as the issues raised in the appeal have been very adequately and exhaustively considered by my learned brother, Agbaje, J.S.C., I shall therefore, for the same reasons allow the appeal in part and abide by the consequential orders contained in the lead judgment, including that of costs.

Counsel