ALHAJI ISIAKA DOSUMU (APPELLANT)

v.

BEATRICE ADESOMO JOTO (RESPONDENT)

(1987) All N.L.R. 497

Division: Supreme Court of Nigeria

Date of Judgment: 16th October, 1987

Case Number: (SC.34/1985)

Before: Eso, Aniagolu, Nnamani, Uwais, Oputa JJ.S.C.

The plaintiff/respondent brought an action against the defendant/appellant for a declaration of title, injunction and damages for trespass in respect of a property known as and called Plot 26 in Adewale Family Layout, Bariga Village.

The case of the respondent was that the land in dispute was conveyed to her by a deed of conveyance dated 16th February, 1970 and that she was put into possession immediately. She also claimed that she enjoyed and exercised continuous and undisturbed possession and undisturbed possession until 1977 when the appellant entered the land and commenced building.

The defendant/appellant controverted these claims and averred that the land in dispute was part of a larger tract of land originally belonging to the Oloto Chieftaincy family which was sold him and registered at the Lands Registry.

At the hearing of the case the respondent called her surveyor who made a composite plan of the two plans in the deed of conveyance of the parties and discovered that the land in the conveyance of the appellant did not fall within the land in dispute.

The appellant did not rebut the evidence tendered by the respondents surveyor.

The trial court therefore awarded judgment to the respondent.

Dissatisfied, the appellant appealed to the Court of Appeal but his appeal was dismissed.

Notwithstanding this, the appellant appealed to the Supreme Court on the ground that it was the duty of the respondent to prove her case and not rely on the weakness of the case of the appellant.

HELD:

1.      The respondent having shown that the land sold to the appellant was outside the land in dispute and the appellant having conceded that his land was outside the land in dispute, the non-proof by the respondent of her derivative title from the Oloto Chieftaincy family was non-sequitor. It is therefore idle for the appellant to question the ownership of the respondent or to say that the respondent has not proved her title.

2.      Since the respondent has proved her title to the Oloto Chieftaincy family whose ownership has been established, the onus then is upon the appellant on the authorities of Thomas v. Holder (1946) 12 W.A.C.A. 78 and Sanyaolu v. Coker (1983) 3 S.C. 124, to show that his possession is of such a nature as to oust that of the original owner.

3.      A defendant who has been found to have no title or interest in land is not entitled to object to the form of declaration made-Chief Ayomano & Anor. v. Ginuwa II (1943) 9 W.A.C.A. 85.

Appeal dismissed.

Mr E. O. Sofunde for Appellant.

Mr E. A. Taiwa for Respondent.

Cases referred to:-

1.      Abanabian v. Enyimadu (1953) A.C. 207

2.      Atolagbe v. Shorun (1985) 1 N.W.L.R. (Pt. 2) 360

3.      Ayinla v. Sijuwola (1984) 5 S.C. 44 at 61-65.

4.      Ayomano v. Ginuwa II (1943) 9 W.A.C.A. 85

5.      Coker v. Farhat (1953) 14 W.A.C.A. 216

6.      Johnson v. Lawanson (1971) 1 All N.L.R. 56

7.      Kuma v. Kuma (1956) 5 W.A.C.A. 4

8.      Ocean Estates Ltd. v. Norman Pinder (1969) 2 A.C. 19

9.      Okuoja v. Ishola (1982) 7 S.C. 314 at 351-352

10.    Sanyaola v. Coker (1983) 3 S.C. 124 (1983) 1 S.C.N.L.R. 168

11.    Thomas v. Holder (1946) 12 W.A.C.A. 78

Statutes referred to:-

1.      Evidence Act, Cap. 62.

Aniagolu, J.S.C.-The matter in contest in this appeal is the derivative title of the plaintiff to a plot of land-plot 26 in Adewale Family Approved Layout, Bariga Village, Shomolu, in Ikeja Division of Lagos State, the bone of contention being the quantum of evidence, by the plaintiff, sufficient to justify a declaration of title of ownership to the plot of land, in her favour.

The writ of summons was taken out in the High Court of Lagos by a lady, one Mrs Beatrice Adesomo Joto, a trader residing at 135 Ibadan Street, Ebute-Metta, Lagos, against one Alhaji Isiaka Olatunji Dosunmu, a Businessman and General Contractor, residing at 22 Kusa Street, Pedro, Bariga, Lagos, in the following terms:

"The plaintiff's claim is for:

(i) A declaration of title of a piece or of parcel of land lying, situated and being at or otherwise known as Plot 26 in Adewale Family Approved Layout, Bariga Village, Shomolu, Ikeja Division, Lagos, State of Nigeria as contained in a Deed of Conveyance registered as No. 13 at page 13 in volume 1614 of the Lands Registry in the Office of Lagos.

(ii) Injunction to restrain the defendant his servants and or agents from trespassing, building or constructing a building or otherwise interfering with the rights of the plaintiff.

(iii) N1,500 damages for trespass on the said land."

The case was tried on pleadings. In her statement of claim the plaintiff asserted that she was seized in fee simple absolute in possession of the land in dispute, namely, plot 26 in Adewale Family Approved Layout, which was conveyed to her by that family by a Deed of Conveyance dated 10th February 1970 made between her of the one part and Mrs Patience Adesola Dawodu and Mrs Stella A. Akintoye of the other part. She was put into possession of the land immediately the land was sold to her and she has since been in continuous and undisturbed possession of the land from that date. She cleared the land and hoisted a notice board there exhibiting her name and address as the owner of the land.

Without her permission, she asserted, the defendant in the month of March 1977 entered the land the commencing building operations on the land in spite of her protest. She reported the matter to the Pedro Police Station, Shomolu. The Police sent for the defendant but the defendant failed to turn-up. One Shakiru Olaleye turned up before the Police with a conveyance which he said was the one with which he sold the land to the defendant. She looked for the whereabout of the defendant but could not find him. Plot 26 was, she said part of the Adewale Family Approved Layout made about the 23rd day of June 1967.

The children of Adewale, she said, inherited the land from their father, one Moses Enimo Adewale, who bought the whole land and made out the layout on 21st August 1929 and who was in undisturbed and continuous possession of the layout until his death intestate on 21st August 1941.

By reason of the defendant's acts of trespass on the land, she said, she was unable to erect her own house on the land as planned.

The defendant controverted the claims of the plaintiff in his statement of defence in which he averred that the land in dispute was part of a larger tract of land originally belonging to the Oloto Chieftaincy family which was sold and conveyed to one Rufai Akinhanmi Olaleye and registered as No. 23 at page 23 in volume 293 of the Lands Registry in the Office at Ibadan later transferred to Lagos by virtue of a Deed of Conveyance dated the 4th day of March 1959. The defendant's vendors, namely, Musiliu R.A. Olaleye, Shakiru R.A. Olaleye and Bashiru R.A. Olaleye had informed him, and he verily believed, that the said Rufai Akinhanmi Olaleye was put into possession immediately after the execution of the deed of conveyance dated 4th March 1959 and he remained in possession, exercising all acts and rights of ownership over the land. While he was still in possession, he asserted, the said Rufai Akinhanmi Olaleye died intestate on 16th January 1966 leaving the vendors and other children as beneficiaries of the estate. On 30th May 1974 Letters of Administration were granted to the vendors by the High Court of Lagos State to administer the estate of the said Rufai Akinhanmi Olaleye. By virtue of a deed of conveyance dated 30th day of December 1976 registered as No. 53 at page 53 in volume 1599 of the Lands Registry in the Office of Lagos, he said, the land in dispute was sold and conveyed to him (the defendant) by Musiliu, Shakiru, and Bashiru who were trustees and administrators of the estate and of the said Rufai Akinhanmi Olaleye in fee simple absolute in possession free from all encumbrances and incidents of native tenure.

The defendant asserted that he entered into possession of the plot of land in dispute since December 1976 and had been exercising all acts of ownership and/or possession on the land without let or hindrance. As part of the exercise by him of the acts of ownership, he erected a storey building on the land in dispute and lives in the said storey building with his wife and children and even lets some of the apartments to tenants.

The defendant asserted that, in the premises, the Court should find that he was the owner of the land and dismiss the plaintiff's case as speculative, vexatious and an abuse of the process of the court.

The case came for trial before Oluwa, J. The plaintiff, in addition to her evidence, called four witnesses, namely, her licenced Surveyor, one Michael Adetola Kukoyi whose evidence was crucial in this case; and two members of the family which conveyed the land to her, one Simeon Babatunde Adewale and one Mrs Patience Adesola Dawodu.

The defendant, apart from his own testimony, called one witness-one Musiliu Babatunde Olaleye who was a member of the family which conveyed land to the defendant.

I shall, in due course, discuss the gist of the evidence adduced by these witnesses.

The High Court found for the plaintiff on her claim and declared her to be the owner of the land in dispute; ordered and injunction against the defendant restraining him from trespassing on the land or erecting a building on it, and awarded N1,500.00 damages against him in favour of the plaintiff.

The defendant, being dissatisfied with the judgment, appealed to the Court of Appeal which, in a unanimous judgment, upheld the judgment of the High Court and dismissed the appeal with costs.

With these concurrent judgments against him, the defendant has now appealed to this Court on three grounds of appeal which read as follows:

"1.     The learned Justices of the Court of Appeal erred in law when they held as follows:

'Now to the consideration of the submission of learned Counsel, it is correct the respondent pleaded that she bought the land from the Adewale family and made no mention of the Oloto Chieftaincy family in the pleadings but it would be stretching matters to absurdity not to take into account the evidence revealed by the production of Ex. D. to substantiate Paragraphs 2 and 9 of the Amended Statement of Claim. Ex. D. not only showed who her immediate vendors were but goes on to tell the history of how her vendors became owner of the land in the recitals of the deed.

The facts in the recitals in Ex. D. are relevant to the facts in issue raised in Paragraphs 2 and 9 of the Statement of Claim; See Section 7, 10 and 12 (b) Evidence Act, Akingbade v. Elemosho (1964) 1 All N.L.R. p. 154 p. 157.

I am of the view that the learned Judge did not use inadmissible evidence to come to the conclusion that the origin of respondent's title was in the Oloto Chieftaincy family. The findings was eminently based on evidence adduced posited by parts of respondent's pleadings.'

PARTICULARS OF ERROR

(a)     Exhibit D could only be relevant and admissible in so far as it goes to prove the averments contained in paragraphs 2 and 9 of the Statement of Claim. Any other fact contained in Exhibit 'D' must be irrelevant and inadmissible.

(b)     That the root of title of the plaintiff is in the Oloto family is a material fact which ought to have been pleaded, and any evidence tending to establish this fact went to no issue as same was not pleaded.

(c)     In any event the recitals contained in Exhibit 'D' are irrelevant and inadmissible as hearsay evidence in so far as persons who had personal knowledge of the facts stated herein did not testify nor were such persons shown to be the makers of Exhibit D, thereby not coming under the exceptions for their admission under sections 90 and 129 of the Evidence Act.

(d)     Further, the recitals in Exhibit D could not in any event have been admissible under section 90 of the Evidence Act, as Ex. D is a certified true copy and not the original.

2.      Having held that the Adewale family did not produce a conveyance from the Oloto family or from Kafo Bamgbade, and that there was no evidence from the caretaker of the Adewale family the extent of the land sold to the Adewale family the extent of which was shown to the surveyor whilst making Exhibit 'A' the Learned Justices of the Court of Appeal erred in law in holding that the finding of the learned trial Judge that the defendant's vendor's land falls outside the land in dispute as shown in Ex. C the composite plan was fatal to the defendant's case.

PARTICULARS OF ERROR

(a)     In a claim for a declaration of title, the plaintiff succeeds on the strength of his claim and not on the weakness of the defendant's case.

(b)     Having regard to the fact that the plaintiff failed to establish the identity of the land sold to the Adewale family who in turn sold to the plaintiff, the plaintiff's claim for a declaration of title ought to have failed.

3.      The Learned Justices of the Court of Appeal erred in law in deciding the issue of possession having been in finding at all on the issue of possession, but based his Judgment on the issue of title, and there was no cross-appeal against the Learned Trial Judge's failure to make a finding on possession."

Parties have filed their briefs of arguments and have relied on these briefs in addition to the oral argument before this Court which was advanced by Counsel for defendant/appellant only, Counsel for the plaintiff/respondent not having been called upon to reply.

In the course of his argument, Mr Sofunde, of Counsel made two vital concessions:

(i) that he was not quarrelling with the finding of the trial Judge against his client that the conveyance on which his client based his claim of ownership did not relate to the land in dispute; and

(ii) that the defendant was unable to substantiate his claim that he was the owner of the land in dispute.

With these two vital concessions made one would have thought that the defendant would have thrown in the towel and submitted to judgment. That was not to be. Mr Sofunde, in his laudable characteristic tenacity, argued that in spite of his concessions, this Court should find for him and allow his appeal by reason of the fact that the onus of proof lay upon the plaintiff who does not rely on the weakness of the defendant's case to sustain her case but upon the strength of the plaintiff's case. He argued that the plaintiff had not established her case on the strength of the evidence adduced. He further submitted that his client was in possession of the land in dispute but that the learned trial Judge made no findings whatever on the possession-a non-direction which should result in this Court setting aside the judgments of the Courts below.

In his brief which he adopted, Mr Sofunde framed three questions for determination as follows:

"The appellant intends to argue three grounds of appeal contained at pages 131 to 133 of the record, and the issues arising therefrom for determination are namely:

(1)     Whether the recitals contained in Exhibit 'D' are relevant and admissible;

(2)     Whether because a person's conveyance falls outside the land to which he lays claim entitles another person claiming declaration of title, damages for trespass and injunction against him to succeed on the strength of his root of title when that other person fails to establish the identity of the land sold to his vendor; and

(3)     Whether the Court of Appeal was right in making a finding in favour of the respondent on the issue of possession, when there was conflicting evidence led by both sides, and the court of trial made no finding thereon, and there was no complaint from either side."

In the said brief he argued that Exhibit D-the Conveyance dated the 10th day of February 1970 on which the plaintiff based her title-contained the recitals which traced the original ownership of the land in dispute to the Oloto Chieftaincy family of Bariga Village, Shomolu, in Ikeja Division, but she failed to plead in her statement of claim her root of title to be in the Oloto family. He argued that the recitals in Exhibit D were hearsay in so far as the said Exhibit D was not shown to be made by persons who had personal knowledge of the facts therein and also in so far as the makers of Exhibit D were not called. The recitals therefore ought to be held inadmissible unless saved by the Evidence Act having regard to the decision in Coker v. Farhat (1953) 14 W.A.C.A. 216. Neither section 90 of the Evidence Act nor section 129 of the same Act could save the recitals since the original was not produced; the makers of the statement did not have personal knowledge of the facts stated therein; and Exhibit D was not 20 years old as from the date of the contract. He referred to Johnson v. Lawanson (1971) 1 All N.L.R. 56 and Ayinla v. Sijuwola (1984) 5 S.C. 44 at 61-65. He therefore argued that since the root of title of the respondent was in the Oloto Chieftaincy family and that was not pleaded, any evidence of that went to no issue and was inadmissible.

After dealing with conflict of evidence on the issue of possession, Mr Sofunde argued that in spite of the fact that the appellant failed to connect his conveyance Exhibit F with the land in dispute, the appeal ought still to succeed because the respondent herself failed to establish any nexus between the land conveyed to her by the Adewale family and the land purchased by the late Adewale from Kofo Gbamgbade. He relied on Okuoja v. Ishola (1982) 7 S.C. 314 at 351-352. Mr Sofunde finally complained that the learned trial Judge made no finding on the issue of possession and merely decided the case on the footing of the documents of title.

In determining this appeal one must first determine the identity of the land in dispute and it is in this light that the evidence of the Licensed Surveyor, Michael Adetola Kukoyi, becomes all important. He made plans of the plaintiff's land and that of the defendant. Plaintiff's land is Exhibit A and defendant's land as contained in the plan on the conveyance executed in favour of the defendant, is Exhibit B. With the two plans, Exhibits A and B, he made a composite plan showing the relative lands of the contending parties. For its importance I would crave the indulgence of your Lordships to set out, in full, the evidence of the Licensed Surveyor.

"I live at 3, Harvey Road, Yaba. I am a Licensed Surveyor. I know the plaintiff. I know Adewale family. I know the land in dispute.

I called out a surveyor of the land of the Adewale family. I made a layout design of the Adewale family land.

Here is a plan of the layout by me. Tendered and admitted without objection as Exhibit 'A'.

I know the plaintiff. On her instruction I made out a plan for a plot of land inside Exhibit 'A'. The plan is No. 26 in Exhibit 'A'.

I do not know Rufai Akinhanmi Olaleye; I know the family of Olaleye lay claim to all the land in Exhibit 'A'.

I called for the conveyance of the Olaleye family and compared it with that of the Adewale family. I applied for the certified true copy of Olaleye Conveyance carrying the plan of their land. This is the certified true copy of Olaleye family land. Tendered and admitted as Exhibit 'B'.

I then prepared a composite plan showing the relationship between the lands in Olaleye's plan and that of Exhibit 'A'. Composite plan tendered and admitted as Exhibit 'C'.

On Exhibit 'C' Rufai Akinhanmi Olaleye's land is green and Adewale family land is red. And area in dispute is yellow this falls wholly within the Adewale family land.

There is no overlapping between the lands in Exhibit 'A' and Exhibit 'B'.

The Caretaker of Adewale family showed me round the boundary shown in Exhibit 'B'. We pillared the property and we showed the existing buildings."

Having shown that the land sold to the defendant was outside the land in dispute there was no meeting place between the claim of the defendant and that of the plaintiff. Mr Sofunde having conceded that his client's land was outside the land in dispute, his arguments in his brief as to the non-proof by the plaintiff of her derivative title from the Oloto Chieftaincy family were non-sequitur.

Again, having conceded that his client, the defendant, had not substantiated his claim that he was the owner of the land, it was idle for him to question the ownership of the plaintiff had not proved her title in the light of the conveyance to the plaintiff in Exhibit D. Both parties have agreed that the original ownership of the land in dispute was vested in the Oloto Chieftaincy family. There was no dispute on this. How then could the appellant be heard to complain that the plaintiff had not proved his title to be vested in the Oloto Chieftaincy family?

In those circumstances his argument as to the admissibility of Exhibit D and the recitals become entirely academic.

One thing that is clear in his appeal is that there is no dispute between the Oloto Chieftaincy family, the radical owners, and the plaintiff. The plaintiff had tendered the Deed of Conveyance, Exhibit D, reciting the Oloto Chieftaincy family as the Radical Owners. The land which the defendant got from the same Oloto Chieftaincy family in respect of which there is also no dispute, is verged green in the composite plan, Exhibit C, while that of the Adewale family is verged red. Both lands do not overlap although they are shown to have a common boundary marked with survey pillars or beacons numbered as 788 to 795. The portion of the land trespassed with by the defendant which is the plaintiff's land lying within the Adewale family land verged red is a small plot of land, said to be plot 26, and is verged yellow.

Therefore, since the plaintiff's land verged yellow is within the Adewale family land verged red, which land has common boundary with the defendant's land verged green, and which does not overlap with it, and since there is no dispute that the Adewale family got the redverged land from Oloto Chieftaincy family, the plaintiff has traced her root title to one whose title to ownership has been established and the onus would then be upon the defendant, on the authorities of Thomas v. Holder (1946) 12 W.A.C.A. 78 and Sanyaolu v. Coker (1983) 3 S.C. 124; (1983) 1 S.C.N.L.R. 168 to show that his own possession is of such a nature as to oust that of the original owner, namely, the Adewale family in relation to the plaintiff or the Oloto Chieftaincy family in relation to the Adewale family.

The defendant whose land is shown, from the composite plan, Exhibit C, to be outside the plaintiff's land but only reaching it at a common boundary is in neither position to discharge the onus nor to call into question the right of the plaintiff over the plot of land verged yellow which is within the larger area verged red. Mr Sofunde's argument can be likened to the one advanced by the respondent's in the Bahamas Island case of Ocean Estates Ltd. v. Norman Pinder (1969) 2 A.C. 19. But their Lordships of the Privy Council threw out the argument saying at page 25 that:

"In the present case, where the defendant made no attempt to prove any documentary title in himself or in any third party by whose authority he was in occupation of the land it would have been sufficient for the plaintiffs to rely upon the conveyance of the land to themselves of March 30, 1950; for where a person has dealt in land by conveying an interest in it to another person there is a presumption, until the contrary is proved, that he was entitled to the estate in the land which he purported to convey. In fact, however, the plaintiffs went further than was strictly necessary. They proved a devolution of title going back through a series of intervening conveyances to the conveyance of the fee simple in the land by Mrs Key to the Chipper Orange Co. Ltd. of May 3, 1937."

Continuing at the same page and dealing with the issue of possession, their Lordships said:

"Put at its highest against the plaintiffs it is clear law that the slightest acts by the person having title to the land or by his predecessors in title, indicating his intention to take possession, are sufficient to enable him to bring an action for trespass against a defendant entering upon the land without any title unless there can be shown a subsequent intention on the part of the person having the title to abandon the constructive possession so acquired."

See also Abanabina v. Enyimadu (1953) A.C. 207; Kuma v. Kuma (1956) 5 W.A.C.A. 4. Finally, the situation presented by the defendant/appellant is that of an unsuccessful party, found to have no interest in the land in dispute, but is complaining about the verdict granted to the successful plaintiff. The defendant through the mouth of his counsel is saying, in effect, as it were:

"I know I cannot prove, and indeed I have failed to prove, that I am the owner of the land in dispute; I know that I cannot quarrel with the finding that my conveyance does not relate to the land in dispute, yet I must continue to question the declaration of title granted to the plaintiff because he has not successfully traced the root of his title to the Oloto Chieftaincy family."

The question that readily comes to mind is: "what is your business in the show?" It was much the same sort of situation that arose in Chief Ayomano and Another v. Ginuwa II (1943) 9 W.A.C.A. 85 in which Petrides, C.J. stated that:

"The defendants, who had been found to have no title or interest in the land, were not entitled to object to the form of the declaration."

In the instant appeal, the defendant has been found to have no interest in the land in dispute and, indeed, that his land is completely outside the land in dispute. What business is there for him to question the plaintiff's derivative title when neither the Adewale family nor the Oloto Chieftaincy family is complaining about the plaintiff's ownership or possession of the land in dispute?

It must be pointed out, as disclosed in the record of proceedings (see page 65), that the defendant asked for leave, and was granted, for him to prepare and produce his own composite plan. Much time was granted him but in the end he was unable to produce one. One must take it that having carefully scrutinized the composite plan of the plaintiff (Exhibit C) the defendant was unable to find fault with it, hence the concession by his Counsel that the defendant's conveyance did not relate to the land in dispute.

As I have said, Mr Sofunde's charisma, put tenaciously into his argument in this appeal, is to be commended generally, in the interest of bold advocacy, but the dictates of justice command that the verdict in this appeal must be pronounced in favour of the plaintiff/respondent.

Accordingly, this appeal must be dismissed, and it is hereby dismissed, with N300.00 costs to the respondent.

Eso, J.S.C.-I had the privilege of a preview of the judgment which has just been delivered by my learned brother Aniagolu, J.S.C. in draft. I agree completely with his reasoning and conclusion.

My learned brother has stated in detail the facts of the case and traced the journey of the litigation from the High Court of Justice, Lagos State coram Oluwa, J., through the Court of Appeal, which dismissed the appeal which the defendant lodged against the decision of the High Court. The Court had earlier granted the declaration and injunction sought by the plaintiff, and awarded him damages assessed at N1,500.00. There are therefore concurrent findings of fact by two courts against the defendant and it is against these concurrent findings that the defendant has appealed to this Court. He relied on three grounds of appeal, which were well adumbrated in the lead judgment delivered by my learned brother Aniagolu, J.S.C.

Notwithstanding the ingenious arguments put up by Mr E. O. Sofunde, of learned Counsel, even after conceding two important points, to wit: that the land of the appellant was outside the land in dispute and that the appellant had not led sufficient evidence which might have awarded the land to him had he been the plaintiff. Mr Sofunde argued strenuously that the plaintiff could not have succeeded on the evidence produced in support of his pleadings, it would appear to me that the case itself has resolved itself to one point of law as to whether or not the onus has not shifted from the plaintiff to the defendant who would be required to prove that his possession consisted the claim to ownership put up by the plaintiff/possession see Thomas v. Holder (1946) 12 W.A.C.A. 78.

The points in contest in this case seem very clear. The plaintiff asserted title to the land in dispute. He traced his title to the Oloto family, the radical owners. There is no dispute about this title. The defendant went to the plaintiff's land and commenced building. The defendant's own land has been shown to us on the composite plan to be distinct from the land of the plaintiff. Indeed, there is no overlap. Yet the defendant, and most curiously too, complains about the title to land in respect of which he has, on his own admission, no interest. I think the only thing that has sustained the case thus far was the ingenuity of learned Counsel. It is true, a good advocate could make a bad case look good. That is what Mr Sofunde has commendably done. Indeed, to have got leave to appeal at all was a matter of ingenuity. But the search for justice transcends the veil that good advocacy might produce. When a case is thoroughly bad, no good advocacy, not even Mr Sofunde's, could change its true essence. I did agree it was not necessary to call upon the respondent in the case. The appeal is dismissed and I do abide by all the orders made in the lead judgment of my learned brother Aniagolu, J.S.C. in this his last judgment to be given from the Supreme Court Bench.

Nnamani, J.S.C.-I had before now had a preview of the judgment just delivered by my learned brother, Aniagolu, J.S.C. and I am in entire agreement with his reasoning and conclusions.

The appellant was from the beginning of this appeal facing an uphill task as he had to persuade this Court to upset the concurring judgments of the High Court and the Court of Appeal. That task seemed to me to be made more impossible by the concessions of learned Counsel to the appellant; first, that the land in respect of which his client obtained a conveyance was outside the land in dispute, second, that his client did not substantiate his claim to ownership of the land and third, that his client not being the owner of the land could be a trespasser. It was difficult to see what else remained to be canvassed in this appeal.

Mr Sofunde nevertheless doggedly contended that the respondent did not discharge the onus which undoubtedly lay on her to establish her title in a case of declaration of title. His main grouse was that the respondent who relied on a conveyance Exhibit D did not prove the recitals therein which traced title to the Oloto Chieftaincy family of Lagos. My learned brother, Aniagolu, J.S.C. has completely dealt with these complaints and his conclusions cannot bear repetition. I am unable too to see the relevance of the recitals in Exhibit D. The respondent, in proof of her claim in the High Court tendered Exhibit D, a conveyance executed in her favour by the Adewale family. That family had on 21st August, 1929 made their land into a layout, Plot 26 of which is the land in dispute. She also called as her witnesses two members of the Adewale family-Simeon Babatunde Adewale and Mrs Patience Adesola. But perhaps the most crucial aspect of the case she put up was the testimony other Surveyor, Michael Adetola Kukoyi. He obtained a certified copy of the appellant's conveyance which was tendered as Exhibit B. He then used this and the layout Plan Exhibit A to ascertain the position of the appellant's land. In the composite plan which was tendered as Exhibit C, the appellant's land was shown to fall outside the land in dispute. This evidence was not controverted in any sense by the appellant. In the face of all this, I can hardly see anything which ought to disturb the declaration of title granted to the respondent.

For these reasons, and the detailed reasons so lucidly set down in the lead judgment; I too dismiss this appeal. I abide by all the orders in the judgment of my learned brother Aniagolu, J.S.C. earlier referred to.

Uwais, J.S.C.-I have had the opportunity of reading in draft the judgment read by my learned brother Aniagolu, J.S.C. I entirely agree with the judgment. I do not wish to add anything.

Accordingly, the appeal is hereby dismissed with N300.00 costs to the respondent.

Oputa, J.S.C.-I have had the privilege of a preview in draft of the lead judgment just delivered by my noble and learned brother Aniagolu, J.S.C. and I am in complete agreement with his reasoning and conclusion.

The plaintiff/respondent's claim before the trial Court was for:

(i) A declaration of title to all that property known as and called Plot 26 in Adewale Family Approved Layout, Bariga Village, Shomolu, Ikeja Division.

(ii) N1,500.00 damages for trespass.

The plaintiff/respondent pleaded as her root of title a sale from the Adewale family which sale was covered by a Deed of Conveyance registered as No. 13/13/1614 dated 11/12/1970. The trespass complained of was pleaded in paragraph 3 of the Statement of Claim as "erecting a dwelling house on the said Plot 26." The defendant/appellant also pleaded as his root of title, a sale and a Deed of Conveyance dated 30th day of December, 1976 and registered as No. 53 at page 53 in Volume 1599 of the Lands Registry, Lagos.

It is interesting to find out the relationship between the land the plaintiff/respondent claimed to be hers by virtue of her own Conveyance and the land sold to the defendant/appellant which was registered as No. 53/53/1599. I say this because the expression land in dispute must inevitably mean a piece of land claimed by a plaintiff as his/her own which same piece of land is also claimed by a defendant as his/her own. It takes two to have a quarrel and it takes two parties claiming the same piece of land to have a land in dispute between them. It is here that the evidence of Michael Adetola Kukoyi, Licenced Surveyor called a P.W.1 becomes relevant. He prepared a plan of the Adewale Family Layout tendered as Ex. A. The plaintiff/respondent's plot of land is clearly marked No. 26 in Ex. A. Mr Kukoyi tendered as Ex. D a certified copy of the Olaleye family land from which the land sold to the defendant/appellant was carved out. He (Kukoyi) also prepared a composite plan showing the relationship between the land in the Olaleye plan Ex. B and the land of the Adewale Family Layout, Ex. A. The composite plan was tendered as Ex. C. From Ex. C it is apparent that the "purported" land in dispute verged yellow falls wholly within the Adewale Family Layout. Mr Kukoyi concluded that "there is no overlapping between the Adewale family land, Ex. A and the Olaleye family land Ex. B." After the evidence of P.W.1, Mr Kukoyi, it was apparent that the plaintiff's land in Adewale Family Layout numbered No. 26 is different and distinct from the land the defendant/appellant bought from the Olaleye family. Where then was the land in dispute in this case? If there was no land in dispute between the parties it was futile to have further continued with the hearing of this suit. The trial Court would have, quite legitimately and at that stage, awarded title to the plaintiff/appellant's Conveyance. Those two Conveyances were like two parallel straight lines which will never meet to form "the land in dispute."

Also because the plots of land bought by the parties were separate and distinct the defendant/appellant would have no legal justification to start a building on the plaintiff/respondent's land. Her case for trespass was also, from the pleadings and the evidence of P.W.1, Mr Kukoyi, established. This case bears a striking resemblance, but in the reverse, with the case of Ramonu Atolagbe v. Korede Olayemi Shorun (1985) 1 N.W.L.R. (Part2) 360 where the parties bought the same piece of land from the Ojora Chieftaincy family. But that notwithstanding the learned trial Judge curiously found that "their respective interest relate to separate and distinct plots." In that case at p. 376, I made the following relevant observations:

"How could the learned trial Judge... arrive at the conclusion that 'their respective interests relate to separate and distinct plots?' Over what were they fighting? It does not make sense that two persons holding separate and distinct plots of land, where none trespassed upon the plot of the other should be involved in law suit."

In this case now on appeal Mr Sofunde, learned Counsel for the defendant/appellant conceded that "not having established our title we are trespassers. But the plaintiff/respondent did not establish her title either."

This leads to a consideration of the second Question for Determination in this appeal which is:

"2.     Whether because a person's conveyance falls outside the land to which he lays claim entitles another person claiming declaration of title, damages for trespass and injunction against him to succeed on the strength of his root of title when that other person fails to establish the identity of the land sold to his vendors."

A judgment for a declaration of title to land is a judgment in personam (between and binding the parties thereto) and not a judgment contra mundum. No one sues for a declaration of title in vacuo or for the fun of it. There must be some denial of the plaintiff's title, some interference with that title by a defendant before there can be a suit asking the Court to make a declaration in favour of the plaintiff. The case now on appeal arose because as pleaded in paragraph 3 of the Statement of Claim "the defendant trespassed on the plaintiff's property aforesaid by erecting and is still erecting a dwelling house on the said plot 26. In paragraph 11 of his statement of defence the defendant/appellant pleaded that "by virtue of a Deed of Conveyance dated 30th day of December, 1976, and registered as No. 53 and page 53 in Volume 1599 of the Land Registry... the land in dispute was sold and conveyed to me..." In paragraph 13 of the Statement of Defence the defendant/appellant averred that "he has already erected a storey building on his land (i.e. the plot of land in dispute." This case arose because the defendant thought that the land sold and conveyed to him by the Olaleye family was plot No.26 in the Adewale Family Layout. When the P.W.1, Licenced Surveyor, Kukoyi, produced Ex. A and Ex. B showing the area covered by the plaintiff's Conveyance and the defendant's Conveyance respectively and when he further produced a composite plan Ex. C showing that the areas conveyed to the plaintiff was separate and distinct from the area conveyed to the defendant no further list existed between the parties as the defendant's admission in paragraph 11 of the Statement of Defence automatically made him a trespasser.