Alhaja Olayide Ayinde (Nee Olaiya) & Ors V. Mrs. Mercy Olulola Olaniyan & Ors (2016)

LawGlobal-Hub Lead Judgment Report

SIDI DAUDA BAGE, J.C.A. 

This is an appeal against the Judgment of the Hon. Justice Bode Rhodes Vivour sitting at the High Court of Lagos State delivered on 26/5/2000, The Learned trial Judge (as he then was) entered judgment for declaration, injunction and damages for trespass in favour of the Respondents against the Appellants. The Respondents had claimed in their Amended Writ of Summons dated 23/5/99, at page 145 as follows:
1. A Declaration that the Plaintiffs are entitled to statutory right of occupancy in respect of those pieces or parcel of Land situate lying and being at onike village, yaba Lagos.
2. N500.00 (Five Hundred Naira) in favour of each plaintiff being special and general damages against the Defendant jointly and severally their servants and/or agents for trespass committed by the Defendants on the plaintiffs Land (in Plaintiffs possession) situate lying and being at onike lwaya village, Yaba, Lagos and which Land is more particularly shown and edged red on the plan No. 85/64 ASA dated the 23rd March, 1964 and annexed to a Deed of conveyance dated 4th August 1964 and registered as No. 38 at page 38

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in volume 1227 of the Registrar of Deeds kept at the Lagos Land Registry,
3. An order of perpetual injunction restraining the Defendants by themselves, their servants and/or agent and privies or otherwise from committing further acts of trespass on the said Land.

The brief summary of this case is as follows:
The Respondents’ case was that Joseph Adelola Olaniyan (Deceased), the Respondents’ predecessor-in-title, was the owner of the land in dispute, having bought same from the Oloto of Oto. The Respondent stated that since Joseph Adelola olaniyan bought the property in 1964 up to 1982 when he died, he was in undisturbed occupation of the land. They claimed that sometime in 1982 the Defendants/Appellants trespassed on the land. The Appellants’ case as can be gleaned from their 6th Amended Statement of Defence dated 8/7/99 (see page 387 – 394 of the Record) was that the 1st Appellant’s ancestors the Oloto Chieftaincy family to the 1st Appellant’s.
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The Appellants claim that the land in dispute is at Makoko and not Onike as claimed by the Respondents. The Appellants claimed to have exercised land in dispute especially portions the Respondents

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laid claim to. Numerous Conveyances by the 1st Appellants ancestors were pleaded and tendered in evidence. Exhibit “E” the Plan of the land sold to the 1st Appellants? ancestors was tendered in evidence by the 1st Appellant (see lines 25 to 30 p. 248 & P. 249 of the Record). The Appellant also pleaded the judgment in Suit No. 105/43 to show that their claim to portions of the land in dispute situate at Makoko has been sanctioned by the Court. Judgment in Suit LD/499/67 was also pleaded to show that during the lifetime of Joseph Adelola Olaniyan, (the Respondent’s predecessor-in-title) he laid claim to compensation in respect of the land in dispute, with the same Conveyance as in the present case, but a Court of competent jurisdiction refused his claim and found in favour of the 1st Appellant’s ancestors. Composite Plans of the land in were tendered by both parties. The Composite Plan of the Respondents are Exhibits “D1, D2 and D3″ while the Composite Plan of the Appellants is Exhibit ?X”. The plan tendered by the Respondents shows the land in dispute to be at Makoko. Two witnesses each were called by the Respondents and the Appellants.

It is

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against the backdrop of the above cases of the Respondents and the Appellants stated above that the learned trial judge in his judgment (see page 437 to 449 of the Record) entered judgment for the Respondents.

The Appellants are dissatisfied with the judgment of the learned trial judge and have appealed to this Honourable Court. The Notice of Appeal filed against the judgment is at P. 451 – 452 of the Record. Pursuant to the leave of this Honourable Court granted on 11/4/06, to the Appellants, to file additional Grounds of Appeal and to amend the original Notice of Appeal, an Amended Notice of Appeal was filed on 3/5/06.

When the 1st Appellant, who defended the suit on behalf of his family and represented other Appellants at the trial Court died on 23/02/2011 he was substituted by Alhaji Sulaimon Olaiya-Akinsemoyin, by the order of this Honourable Court dated 4/10/2011. Alhaji Sulaimon Olaiya ? Akinsemoyin also died on 6th January, 2012 and was substituted by Alhaja Olayide (Nee olaiya) as the 1st Appellant by order of this Honourable Court dated 20/02/2012. Hence the filing of Appellants’ further Amended Brief of Argument. From the Amended

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Notice of Appeal containing fourteen (14) Grounds, dated/filed 4/5/06, Appellant formulated the following 8 issues as follows:
(1) Whether or not the learned trial judge’s holding that the land in dispute is at onike yaba without resolving/evaluating the conflicting evidence between the parties on the location of the land led to a miscarriage of justice? Ground 2
(2) Whether the learned trial judge was right or wrong in holding that Exhibits ?E & F’ are not related to the Respondents’ land and that the Appellants deliberately withheld plan No. C9/43 referred to in suit No. 105/43 from Court and tendered plan No. C22/43 instead? – Grounds 5 and 6.
(3) Whether the learned trial judge rightly refused the Application to withdraw the originating summons in suit No. LD/499/62 in evidence and marked same rejected? – Ground 8
(4) Whether or not the learned trial judge was right or wrong in his refusal to apply the principle of nemo dat quod non habet and in holding that the Appellants were not in possession of the land in dispute before the Respondents purchased same in 1964? Grounds 3 & 4.
(5) Whether the learned trial judge was

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right in holding that the Respondents have a better title than the Appellants and that the Appellants encroached on the Respondent land? Grounds 11 & 19.
(6) Whether or not the learned trial judge rightly rejected the statement of interest in suit No. LD/499/67 in evidence – Grounds 7.
(7) Whether or not the learned trial judge was right or wrong in holding that the evidence of DW1 was at variance with the pleadings and consequently held that Exhibit ‘L.M.N.O.P.Q.R S1, S2, S3 and T’, are unhelpful to the Appellants case? Grounds 9 and 10.
(8) Whether in view of the pleadings and evidence the learned trial judge was right in entering judgment for the Respondents and refusing the counter-claim of the Appellants? Grounds 1 and 14.

On the other hand, the Learned Counsel for the Respondents in their Amended Respondents brief of argument formulated the following seven (7) issues for the determination of the Appeal, and they are as follows:
(1) Whether the Plaintiff proved a better title to the Land in dispute than the Defendants.
(2) Whether the failure of the 1st Defendant to tender plan No. C9/43 in evidence was not fatal to

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their proof of their title to the Oloto family.
(3) Whether the identity of the Land claimed by the Plaintiffs in Exhibit ?B? was not known to the Defendants.
(4) whether the Learned trial judge was right when he held that suit No. LD/105/43 and the findings of the judge in that case is of no assistance to the Defendants in their claim for title in this case.
(5) Whether the Learned trial judge was right when he refused to admit the originating summons in suit No. LD/499/67 in evidence.
(6) Whether the Learned trial judge was right in entering judgment in favour of the plaintiff/Respondent and dismissing the Counter – Claim.
(7) Whether the judgment of the Lower Court should be affirmed on grounds other than those relied on by the Court below;

After a very careful study of the eight (8) issues proposed by the Learned Counsel for the Appellants for the determination of this appeal, and the seven (7) issues also proposed by the Learned Counsel for the Respondents also for the determination of this appeal, all the Eight (8) issues, vis a vis the seven (7) issues can be collapsed into a sole issue for the determination of

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this appeal. This, no doubt, will bring ease, into the Management of this appeal. The sole issue for determination of this Appeal is as follows:
“Whether the Plaintiffs (now Respondents in this Court) proved a better title to the Land in dispute than the Appellants (then as Defendants).”

In arguing this appeal Learned Counsel for the Appellants, Abimbola Ojedokin Esq., contended that, from the pleading and evidence of the Respondents in the trial Court, the Respondents had alleged that the land in dispute is at Onike, Yaba. The Appellants on the other had claimed that the Land in dispute is at Makoko. PW1 in his evidence on 22/2/85. See page 186 of the Record tendered the Deed of Conveyance dated 4/8/04 with plan No. ASA 85/64 annexed to it as Exhibit “B”. The Appellants testified as DW1 and DW2. The Learned trial Judge failed in his duty to evaluate the conflicting evidence given by both parties on the location of the Land in dispute. The Court misconceived the case presented to the Court by the Appellants that the Land in dispute is at Makoko and not Onike, Yaba as claimed by the Respondents. The Learned trial Judge merely relied on plan No.

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ASA 85/84 and Exhibit “D1, D2, and D3” tendered by the Respondents without considering Exhibits “E and X” tendered by the Appellants which clearly described the areas claimed by the Appellants. This failure resulted into a miscarriage of justice. See: Ezeanah Vs. Attah (2004) 7 NWLR (Pt 873) 468 at 505 paras B-C; Jolayemi Vs. Olaoye (1999) 10 NWLR (pt. 624) 600 at 615 para D; Oyewole vs. Oyesoro (1998) 2 NWLR (Pt 539) 663 at 679, Fagunwa Vs. Adibi (2004) 17 NWLR (pt 903) 544 at 567 para. F – G.

Learned Counsel further submitted that the finding of the Learned trial judge that Exhibits “E and F” tendered by the Appellants do not relate to Plaintiffs Land and that Suit No. 105/43 made reference to Plan C9/43 and not Plan No. C22/43. The Learned Trial Judge in view of the above finding consequently held that the Appellant deliberately withheld Plan No. C9/43 from Court.

The finding of the Learned trial judge is erroneous. The Plan tendered in Suit no. 105/43 as shown on the face of Exhibit “E” itself is Plan No. C22/43. Exhibit “X” which is the composite plan prepared by DW2 and tendered in evidence by him and the unchallenged and uncontradicted expert

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evidence of DW2 at page 402 – 403 of the Record, clearly show that the Land in dispute between the Appellants and the Respondents fall within the land contained in Exhibit “E” and that the Land is situate at Makoko and not Onike, Iwaya as held by the Learned trial judge. DW2 was an expert witness. Despite the uncontracdicted and unchallenged experts testimony of DW2 (a Registered License Surveyor) and no contrary expert opinion, the Learned trial Judge held that Exhibit “E” is not complete. See: Nicon Vs. Nze (2004) 15 NWLR (Pt. 896) 245 at Pp.263 – 265 paras F – A; Shell Petroleum Co. (Nig.) Ltd., Vs. Abel Isaiah & Ors. (1997) 6 NWLR (Pt 508) 236 at 249 – 250 F – A. The learned trial judge also invoked the provision of Section 149 (d) of the Evidence Act against the Appellants on the ground that the Appellants deliberately withheld Plan No. C9/43 from the Court. The Appellant did not withhold the evidence from the Court because Plan No. C22/43 which shows the whole land sold to the 1st Appellants ancestors was tendered in Evidence as Exhibit “E” in accordance with the Evidence of DW1. See: Adun Vs. Osunde (2003) 16 NWLR (Pt 847) 643 at 667 – 668 paras, E –

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A.

The Learned Counsel to the Appellants submitted further that, the Learned trial judge refused to allow the Appellants to withdraw the originating summons in Suit No. LD/499/67 in evidence and the marking of the said originating summons rejected on 15/7/98 the 1st Appellant testifying as DW1 sought to tender the originating summons in Suit LD/499/67 in evidence. The document was objected to on ground that it was not signed by the judge. The Court suo motu subpoena the official in the Archives to explain the authenticity of the document. The Head of Archives Olutoyin Shokoya testified on 23/9/1998. The originating summons was rejected because it was not certified. The Court ought to have allowed the Appellants to withdraw the document, to fulfill the condition for certification. The issue of non-certification does not affect admissibility, it will only be relevant when considering the weight to be attached to the document, See:Agusiobo Vs. Onyekwelu (2003) 14 NWLR (Pt.839) 34 at 56 para B – D; Torti Vs. Ukpabi & ors. (1984) NSCC (Vol. 15) 141.

Learned Counsel further submitted that the trial judge refused to apply the principle of nemo dat quod

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non habet and to find that the Appellants were not in possession of the Land in dispute before the Respondents predecessor-in-title bought same in 1964. The Law here is that, where as in this case, both parties to a dispute traced their title to the same vendor, the title resides in the first person to whom title was given and the latter in time cannot maintain an action against the first person to whom title was given. See: Polo Vs. Ojor (2003) 3 NWLR (Pt. 807) 344 at 358 paras C – F; Adelaja Vs. Fanioki (1990) 2 NWLR (pt 131) 137 at151 para E – G. Also that the Learned trial judge should have presumed the Appellants to be the owner of the Land in dispute because of the admission of PW2 that part of the Land in Makoko Exhibit “D1, D2 and D3” relied on by the Learned trial judge on the admission of PW2, who tendered them were worthless and lacks probative value. See: Ugo Vs. Gbatse (1995) 6 NWLR (Pt 401) 314 at 335 E – F; Babatola vs. Aladejana (2001) 12 NWLR (Pt 728) 587 at 609 – 610.

Learned Counsel to the Appellants submitted further that, on the finding of the Learned trial Judge the Respondents have a better title than the Appellants and also that

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the Appellant encroached on the Respondents Land. In coming to those decisions the learned trial judge relied on Exhibit “D1, D2 and D3”, The Exhibits were tendered in evidence by PW2, who under cross-examination testified thus: “A composite plan should contain the Plan number and the name and signature of the Surveyor who prepared it with date – I am not qualified to sign a composite plan. This plan was prepared between 1988 – 1989.” (See page 193-194 of the Record). The Plan in question is inadmissible and lack probative value. It is trite that the Court can only rely on admissible evidence. SeeUgo Vs. Gbatse (1995) 6 NWLR (pt 401) 1 at 335 E-F; Babatola vs. Aladjana (2001) 12 NWLR (pt 72) 597; Jolayemi vs. Olaoye (supra). There are abundant evidence before the learned trial Judge which show that Appellants have better title than the Respondents Exhibits “L, M, N, O, P, Q, R, S1, S2, S3, T, & W.”

The Learned Counsel to the Appellants submitted further that, the Learned trial judge in his judgment held that because the evidence of DW1 on the originating summons was rejected by the Court, Exhibits “L, M, N, O, P, Q, R, S1, S2, S3 and T” are unhelpful in

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establishing the Appellants claim to the Land in dispute. The Exhibits show that when there was a dispute between the Respondents predecessor-in-title and the 1st Appellant’s ancestor on who was entitled to compensation on portions of the Land in dispute, the Court found in favour of the 1st Appellants ancestor. The fact that the evidence of DW1 on the originating summons was rejected is not enough for the trial judge to find that the Exhibits are unhelpful to the Appellants in establishing the Appellants claim to the Land in dispute.

Learned Counsel to the Appellants furthered his submission that, the Appellants gave credible evidence in support of their pleadings. Numerous Exhibits showing acts of possession and ownership were tendered in evidence in support of their Courter-claim. The uncontradicted evidence of DW1, a Licensed Surveyor and Exhibit “X” tendered by him show that the Land claimed by the Respondents fall within the Land of the Appellants in Makoko.
The Learned trial Judge ought to have given judgment in favour of the Appellants in accordance with the Counter-claim. The Appellants are entitled to judgment by the act of possession. See Section 46 of the Evidence Act Cap 112 laws of

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Federation of Nigeria, 1990, acts of possession and enjoyment of Land may be evidence of ownership. See: Morakinyo Vs. Adesoyero (1995) 7 NWLR (Pt 409) 602 at 618 A – B; Nwosu Vs. Okoli (1992) 2 NWLR (Pt 582) at 610 C-E.

In reply to all the submissions above, the Learned Counsel for the Respondents, P. O. Jimoh – Lasisi SAN, in their Amended Respondent’s brief of argument dated 12/9/12 and filed on the 13/9/12, submitted that, the plaintiff/Respondent had proved a better title to the Land in dispute than the Respondent/Defendants from Grounds 3, 5 and 11 of the Amended Notice of Appeal. See Paragraph 2 of the Amended Statement of Claim dated 19th May, 1988, paragraph 21, of the Amended Statement of Claim, paragraph 2 of the 6th Amended Statement of Defence. From the pleadings it is clear that both parties traced title to a common vendor, Oloto Chieftaincy family. The identity of the Land in dispute was admitted in paragraph 2 of the 6th Amended Statement of Defence. The Respondents relied on Exhibit “B” a deed of conveyance dated 4th August 1964 registered as No. 38 at page 38 in Volume 1227. The

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Appellants relied on the judgment in Suit No. 105/1943 Exhibit “F”. at page 218 of the record the Land purchased by Adamo Manue. The Plan No. C/9/43 prepared by Adekunle Coker was not produced by the Appellants at the trial. They also relied on Exhibit “E” Plan No. C22/44. The failure on the part of the Appellants to tender in evidence Plan No. C9/43 is fatal to their proof of root of title to Oloto Chieftaincy Family. On the other hand the Respondents relief on deed of conveyance from Oloto family Exhibit “B”. by virtue of Exhibit “B” the Respondents proved a better title to the Land in dispute than the Appellants who failed to prove their root of title to oloto family.

Learned Counsel to the Respondents further submitted that the failure of the Appellants to tender in evidence Plan No. C9/43 is fatal to their case, and in such a situation the presumption is that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it. See Section 149 (d) of the Evidence Act, and the case of Iwuchukwu Vs. Anyawu (1993) 3 NWLR (Pt 311) at 318. Also the failure to produce (Plan No. C9/34) by the oloto family to

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Adamo Manue 1st Appellants ancestor means that the identity and quantum of the Land sold by Oloto family to Adamo Manue was not proved at the trial, see Adeniran vs. Alao (2001) 12 SC (Pt. 11) 59 at 91.

Learned counsel submitted further that from the admission of the Respondents as Defendants in paragraph 2 of their Amended Statement of Defence and counter-claim pages 387 – 393 of the record and the admission of DW2 Chief Joel O. Ogunsanya licensed Surveyor the Land in dispute is well known to the Appellants and the Respondents.

Learned Counsel submitted further that the finding of the Learned trial Judge that Suit No. LD/105/43 was of no assistance to the Defendants (now Appellants) in their claim for title is correct. Firstly in suit LD/105/43 the plaintiff was Ramotu Manue and Mumuni Abdulai was the Defendant. In the instant case the plaintiffs (executors of the Estate of Chief Joseph A. Olaniyan) never traced their title to any of the parties in Suit No. LD/105/43. lt follows the judgment in suit No. LD/105/43 Exhibit “F” cannot be relied on by the Defendant to establish title because the Olaniyan family (Plaintiffs) did not trace title to any of the

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parties in Suit No. LD/105/43. See Cardoso Vs. Daniel (1986) 2 NWLR (Pt 20) 1 at 47. The Learned trial Judge could not ignore the unchallenged evidence of an expert, Licensed Surveyor (DW2) and hold that Exhibit “E” is complete. See:A – G of Oyo State Vs. Fairlakes Hotels (No.2) (1989) 5 NWLR (Pt. 121) 255 at 291- H – 292 A ? C.

Learned Senior Counsel submitted further that the Learned trial judge rightly rejected the statement of interest in Suit No. LD/499/67 on the ground that it was not pleaded and paragraph 11 of the Amended Statement of Defence relied on did not avail the Defendants. See: Cardoso Vs. Daniel (1986) 2 NWLR (pt. 20) 1 at 36. The Defendants having failed to prove title, the reliance placed on documentary exhibits in suit No. LD/499/67 the compensation case Exhibits “L, M, N, O, P, Q R, S1, S2, S3 and T” is of no assistance to the Defendants because the issue of radical title was not in issue and Suit No. LD/499/67 is not inter parties. See Cardoso Vs. Daniel (supra). The Suit No. LD/499/67 the parties are LEDB (now LSDPC) – Plaintiff J. O. Olaniyan and 51 Ors. – Claimants/Defendants.

Learned Senior Counsel submitted further

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that, the submission of the Appellant that Exhibits “D1, D2 and D3” because the PW2 is not a Licensed Surveyor. applying the doctrine of severance, even if those exhibits are disregarded by this Court, the remaining evidence on record would sustain the judgment of the Court. See: Ojengbende Vs. Esan (2001) 12 SC Pt 11 Page 4 at 18, The 1st Defendant (Appellant) having failed to prove the title of Land purchased from Oloto family, cannot rely on Exhibits “L, M, N, O, P, Q, R, S1, S2, S3, T and W”. The admission of the Appellants that they are in possession of the Land in dispute amounts to acts of trespass having failed to prove the identity and quantum of Land purchased from Oloto family. See Okedola Vs. Adeleke (2004) 7 SC (Pt.1) 33 at 37, Registered Trustees Diocese of Aba Vs. Nkume (2002) 1 SC 19 at 28; Obioha Vs. Duru (1994) 8 NWLR (pt. 365) 631; Fasoro vs. Beyioku (1988) 2 NWLR (Pt. 76) 263; Balogun vs. Akanji (1988) 1 NWLR (Pt 70) 301. We urge the Court to dismiss the appeal and affirmed the judgment of the trial Court.

On the part of this Court, the submissions above are carefully examined. First of all, it is the duty of the trial Court, and not this

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Court to evaluate evidence in the matter. By evaluation, it simply means, the assessment of evidence so as to give value or quality to it. The summary or restatement of evidence is not the same thing as evaluation of evidence. See: Onwuka Vs. Ediala (1989) 1 NWLR (Pt 96) 182 at 208; Chief Niyi Akintola Vs. Buraimoh L. Balogun & Ors. (2000) 1 NWLR (Pt 642) 532 at 549. Perhaps the Supreme Court was more explicit on the role of the trial Court to evaluation of evidence in Eze lbeh Vs. The State (1997) 1 SCNJ 256 at 271. S. Wali (JSC) (as he then was) stated as follows:
On evaluation of evidence I wish to stress firstly by saying that confirmation of the concurrent findings of facts by this Court of the decisions of the two Courts below is compelling in the sense that it is an avowed and age-long judicial policy in this country that the evaluation of evidence called at trial, the ascription of probative values to them and making primary findings on them are matters within the province of the Court of trial which has the singular advantage or is preeminently placed of hearing the witnesses testify and watching them demeanours. See Balogun & Ors. Vs.

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Alimi Agboola (1974) 1 AII NLR (Pt. 2) 66; The Military Governor of Western States Vs. Afolabi Lanibe & Anr. (1974) 1 All NLR (Pt.2) 179, For this reason there is a presumption that a trial judges decision on facts is correct – a presumption which must be displaced by a person who seeks to upset the decision if he can. An appellate Court for its part in such a case should always be reluctant to interfere or to substitute its view of the facts for those of the Court of trial. See: Ajao Vs. Ajao (1986) 5 NWLR (Pt 45) 802, and Kponuglo Vs. Adja Kodaja (1933) 2 WA.C.A. 24.
The position of the Law, from the decision of the Supreme Court above is that there is a presumption that a trial judge’s decision on facts is correct, a presumption which must be displaced by a person who seeks to upset the decision if he can. The primary finding made by the trial Court in this matter is on page 448 2nd and 3rd paragraph of the Records. The Learned trial judge stated as follows:
In the instant case the Survey Plan is so attached to Exhibit “B” and the composite Plans Exhibit ?D, D2, and D3 were prepared from it. The Land claimed by the Plaintiffs is verged

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Red while the Land claimed by the Defendants is verged Green. The encroachment covered by about 5 acres out by 35. 47 acres claimed by the Plaintiffs. I saw this when the Court visited the locus in quo on 7/2/96. There are other trespassers who are not parties in this Suit. I have found that the Plaintiff has a better title to the Land in dispute and so is entitled to damages against the Defendants jointly and severally assessed at N1,500 as claimed by the Plaintiffs.

The Law is settled on the purpose of a visit to locus in quo, in brief it is to eliminate minor contradiction and in consequential uncertainties as regards the physical condition of the Land in dispute. It is not meant to afford a party an opportunity to make an altogether different case from the one he led in evidence in support of his case. In effect, the purpose of a visit to locus in quo is to clear any lingering doubt or ambiguities in the minds of the Court as a result of the Oral evidence tendered. It is not to substitute the eye for the ear, but rather to complement the auditory with the visual. It is to resolve any conflict in the evidence as to physical facts. See: Odichie Vs. Chibogwu

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(1994) 7 – 8 SCNJ 317; Olusanmi Vs. Oshosona (1992) 6 NWLR (Pt 245) 22 at 38. Having the condition stipulated, the Learned trial judge in the instant case, visited the Land in dispute in this matter. The main area of conflict which had necessitated the visit was that, in proof of their claim the Respondents as Plaintiff tendered the Survey Plan which is Exhibit “B’. From Exhibit “B” the composite plans exhibit “D1, D2, D3” were prepared.

The Appellants challenged the admission of Exhibits “D1, D2, D3” in evidence, and urged that the same be disregarded having not been signed by a Licensed Surveyor. The Respondents did not dispute the challenge made to Exhibits “D1, D2 and D3”. The main aim of having a composite plan is to satisfactorily clarify the position of the Land in dispute, to show where the Respondents land fall and not that of the Appellant. Since Exhibits “D1, D2, D3” have failed, having not being signed by a Licensed Survey, it is only the visit to the Locus in quo that would clear any lingering doubt or ambiguities in the mind of the Court in the absence of Exhibits “D1, D2, D3?.
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The Learned trial judge decided the eye for the

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ear. He went and he saw. He saw the level of the encroachment of the Appellants on the Respondents Land. After taken evidence, and an examination at Exhibit ‘B’, he came to his obvious conclusion. “I have found that the Plaintiff has a better title to the Land in dispute and so is entitled to damages against the Defendants jointly and severally assessed at N7,500 as claimed by the Plaintiffs.” This Court has no reason to disturb this obvious finding, based on the physical inspection of the Land in question. Any other claim by the Appellants who were part of the visit by the Learned trial judge becomes secondary. The counter-claim has not proved a better title to the Land, there is little or no chance to the success of the Counter-claim put by the Appellants before the trial Court. The Court was therefore right to have dismissed the Appellants Counter-claim filed before it. The sole issue in this Appeal is resolved against the Appellants.
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Having resolved the sole issue in this Appeal against the Appellants, the Appeal is devoid of merit, and it is hereby dismissed, The judgment of Hon. Justice Bode Rhodes Vivour (as he then was) sitting at the High Court

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of Lagos State in suit No. LD/1193/87, delivered on 26/5/2000, is hereby affirmed by this Court.
NOTICE OF INTENTION TO CONTEND THAT THE JUDGMENT SHOULD BE AFFIRMED ON GROUNDS OTHER THAN THOSE RELIED ON BY THE COURT BELOW BROUGHT PURSUANT TO ORDER 3 RULE 14 (2) OF THE COURT OF APPEAL RULES 2002.
TAKE NOTICE that upon the hearing of the appeal the Respondent intends to contend that the judgment of the High Court of Lagos State Judicial division Coram Honourable Justice Bode Rhodes-Vivour dated 26th may 2000 for damages for trespass and injunction in respect of the Plan No. ASA 85/64 dated 23rd March 1964 attached Deed of Conveyance dated 4th August 1964 registered as No. 38 at page 38 in Volume 1227 of the Register of Deeds kept at the Lagos Land Registry (Exhibit “B”) should be affirmed on grounds other than those relied on by the Court below:
AND TAKE NOTICE that the grounds on which the Respondents intend to rely on as follows:
1. The Defendants admitted in paragraph 3 of the 6th Amended Statement of Defence that they were in possession of the land which the Plaintiffs are laying claim to.
2. The Defendants except the 1st Defendant

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admitted in paragraph 9 of the 6th Amended Statement of Defence pages 390-391 they entered the Land in dispute and carried on building operations on the said Land and that their entry is lawful because they bought from the Olaiya family.
3. The Defendants admitted that they were in possession of the Land in dispute on various dates in 1985 and 1986 before this case instituted amounts to acts of trespass when they failed to prove their title to the Land in dispute.
4, The 1st Defendants is still laying claim to the Land in dispute which was shown purple in his composite plan Exhibit “X”.
See evidence of DW2 pages 403 lines 4 ? 15.
5. The assertion in Exhibit “X” the 1st Defendants composite plan that the Plaintiffs’ Land Exhibit “B” forms portion of the 1st Defendant Land itself is act of trespass which renders the Defendants liable to damages for trespass and injunction.
6. The Plaintiffs also tendered warning letters Exhibits “C1, C2, and C3” sent to the Defendants to desist from acts of trespass on the Land in dispute which the Defendants’ failed to comply with.

On the part of this Court, the said Notice of intention to

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content is carefully examined. It is trite that trespass is actionable at the suit of the person in possession of Land at the time of trespass, and a trespasser cannot claim to be in possession by the mere act of entry and so a Plaintiff is in Lawful possession despite a purported eviction by the trespasser. The Plaintiff must have a present possessory title to enable him maintain an action for trespass to Land. See: Nwosu Vs. Otunola (1974) 4 SC 21; Nzekwe Vs. Nzekwe (1989) 2 NWLR (Pt 104) 373 at 441; Adejala Vs. Fanoiki (1990) 3 SCNJ 131.
In the said Notice to contend, it is the Appellant and not the Respondent that are said to be in possession even by the admission of the Appellants. By Law, it is the Appellant and not the Respondents that can maintain an action in trespass. The Law is very clear on this subject that, it is only proof of good title that can supersede possession. See Adesanya Vs. Otuewu (1993) 1 SCNJ 77; Nsiege Vs. Mgbemena (2007) 4 – 5 SC 1. It is thus clear that action in trespass in this matter cannot be maintained against the Appellant before the judgment of the Hon. Court. After the judgment of the Court which had conferred good title

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to the Respondents, then it will supersede the possession of the Appellant. The trial Court was right, the judgment of the trial Court is affirmed by this Court, based on its decision. The Notice of intention to contend dated 23/5/2007 filed 31/5/2007 and deemed filed on the 10/2/2010, by the Learned Senior Counsel to the Respondents, is hereby dismissed by this Court.

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Other Citations: (2016)LCN/8615(CA)