Danjuma Tanka V. Osita Echendu (2010)

LAWGLOBAL HUB Lead Judgment Report

FRANCIS FEDODE TABAI, J.S.C.

This action was commenced at the Suleja Judicial Division of the High Court of Niger State on or about the 10th of April, 1995 with the Appellant herein being the Plaintiff and the Respondent herein being the Defendant.

The Appellant as Plaintiff claimed against the Respondent as Defendant the following reliefs:-

(a) A Declaration of title to the said farm land to the extent of encroachment into same only.

(b) An order of perpetual injunction restraining the defendant, his agents, privies, servants or whosoever claiming through him from further trespassing and/ or encroachment into the plaintiffs farm land.

(c) The sum of N20,000.00 (twenty thousand naira) only as general damages for trespass into the plaintiff s farm land.

Pleadings were duly filed and exchanged.

The actual trial commenced on the 29th of April, 1997 with the testimony of the Plaintiff/Appellant as the PW1. Two other witnesses also testified in support of the Plaintiff s case. All the three witnesses testified in the absence of the Defendant/Respondent or his counsel. On the 22nd of April, 1998 however the PW1 was, with the leave of court, recalled and was extensively cross-examined. Further leave was also granted for the recall and cross-examination of the PW2 and PW3, on the 17th of March 1999 however, the Defendant/Respondent decided to dispense with the intended cross-examination of the PW2 and PW3 and opened, his defence. The Defendant/Respondent was the only witness for the defence.

In its judgment on the 26th of June, 2000, the trial court allowed the claim and granted all the reliefs as claimed.

The Defendant was not satisfied with the decision of the trial court and thus proceeded on appeal to the court below.

The notice of appeal filed on the 20th of June, 2003 raised three grounds of appeal. The grounds of appeal without their particulars are:-

1. The Honourable Justices of the Court of Appeal erred in law when they held that the suit was a boundary dispute.
2. The Honourable Justices of the court of Appeal erred in law when they held that the Plaintiff (now appellant) was not in possession of the land in dispute: and
3. The Honourable Justices of the Court of Appeal erred in facts and in law when they held that Plaintiff did not in his pleading and evidence lead evidence to identify the portion of his land which was allegedly trespassed upon by the defendant.

The parties, through their counsel, filed and exchanged their respective briefs of argument. The Appellant’s Brief was prepared by Kamal O. Fagbemi of Lateef O. Fagbemi SAN & co. It was filed on the l3th of October, 2007 but deemed properly filed on the 16th of April, 2008. While the Respondent’s briefs was prepared by E.C. Chukwu. It was filed on the 23rd of September, 2008 but deemed properly filed and served on 23rd of April, 2009.

In the Appellant’s brief Mr. Fagbemi formulated two issues for determination which he couched as follows:-

(i) Whether the Appellant has not proved his case to entitle him to judgment in the trial court; and

(ii) Whether the court below can rightly substitute a new cause for the parties as opposed to the claim before the trial court.

Mr. E.C. Chukwu also formulated two issues for determination in the Respondent’s brief. He framed the two issues in the following terms:-

(i) Whether the judgment of the Court of Appeal dismissing the Appellant’s suit is sustainable having regard to the evidence before the trial court.

(ii) Whether the finding and conclusion of the Court of Appeal that the Appellant’s claim before the trial court was not proved as required by law amounts to substitution of the Appellant’s claim.

In my consideration the two issues proposed on the appellant are in substance the same as the two formulated by the Respondent and I shall treat them as such. Let me begin by restating the substance of the argument of counsel for the parties on the two issues.

On the first issue of whether or not the plaintiff/Appellant proved his case to entitle him to the judgment Mr. Fagbemi argued as follows; He referred to the settled principle of law that in claims for declaration of title to land the onus is always on the plaintiff to establish the area claimed and submitted that in this case the Plaintiff/Appellant pleaded with certainty the area claimed and proved same by his evidence corroborated by that of the PW2 and PW3. It was his further argument that the Defendant/Respondent both in the pleadings and in evidence failed to join issues with the Plaintiff/Appellant on this issue of the identity of the land and merely contended that the Appellant had since divested himself of title to the land in dispute. It was further contended that the Respondent both in his pleadings and in evidence never denied knowledge of the land and even admitted under cross-examination of sharing a common boundary with the plaintiff. He referred to the conclusion of the court below to the effect that a plan ought to have been filed showing the common boundary between the parties and submitted that it is not in every land dispute that filing a plan is necessary. For this submission he relied on OJIBAH v. OJIBAH (1991)22 NSCC Part 2 page 130 at 140; OLUJINGLE v. ADEMEAGBO (1988) 2 NWLR (part 75) 238; ATOLAGBE v. SHORUN (1985) 1 NWLR (Part 2) 360 at373; IBULUYA v. DTKIBO (1976)6 SC 61. Still on this question of identity of the land in dispute learned, counsel further relied on the evidence of the Defendant/Respondent that he was carrying on block moulding work on the land in dispute.

With respect to the question of whether the plaintiff/Appellant was in possession of the land in dispute to entitle him to sue, it was the submission of Appellant’s counsel that he, Appellant did not need to be in direct physical possession to be entitled to sue. He referred to the case of UDE v. CHIMBO (1998) 12 NWLR (Part 577) 169 at 194, and submitted that a person can, in law, be deemed to be in possession through a third party such as a servant, agent or tenant and also that a possession by a predecessor in title is deemed to be continued by the successor in title. Learned counsel contended that from all the available evidence the Appellant was, at all times relevant to this case, in possession of the land in dispute and urged this Court to so hold.

As regards the ultimate and crucial question of preponderance of evidence learned counsel referred to the Appellant’s evidence of title through inheritance, his uninterrupted possession and user of the land for 30 years supported by the evidence of the PW2 and PW3 who were not cross-examined and submitted that the case of the Appellant remained unchallenged and therefore established. He relied on ODEBUNMI v. ABDULLAHI (1997) 2NWLR (Part 489) 526 at 540; OMOREGBE v. LAWANI (1980) 3-4 SC 108 at 117 and BURAIMOH v. BAMGBOSE (1989) 2NWLR (Parr 109) 352.

Learned counsel further referred to the case of the Defendant/Respondent to the effect that the Plaintiff/Appellant had divested himself of any title either to the land in dispute or to any land in the vicinity and contended that apart from the ‘ipse dixit’ of the Respondent, there was no other evidence to support the assertion. Worse still, learned counsel continued, the purported Certificate of Occupancy on which the Respondent tried to rely was not tendered. Learned counsel further pointed out that the Respondents alleged vendor whom he casually referred to as “brother of the Emir” was not called and nor was any other witness to the transaction called.

It was the further submission of counsel that once the Plaintiff/Appellant has by preponderance of evidence established his title to the land in dispute he is, in law also entitled to possession and can sue for damages for trespass. In support of this submission counsel relied on DANTATA v. MOHAMMED (2000) 7 NWLR (Part 664) 176 at 213.

On the second issue of whether the finding by the court below that the dispute was not one over title to the land in dispute but rather one of boundary dispute amounted to a substitution of a cause different from that submitted to the court for adjudication, counsel submitted that the finding was a substitution of a cause prepared by the court below for that submitted by the parties for adjudication. It was submitted that the courts as well as the parties are bound by the case put forward by the parties. Reliance was placed on OJO OSAGIE v. ADONRI (1994)6 NWLR (part 349) 131 at 154.

And even where the court felt constrained to raise an issue upon which to determine the case, the parties ought to have been heard on it, counsel argued.

He relied on STATE v. OLADIMEJI (2003) 7 SC 108 at 112. In conclusion learned counsel urged that the appeal be allowed.

In the Respondent’s brief Mr. E.C. Chukwu argued as follows:-

On the first issue for determination learned counsel referred to the claim for declaration of title to the extent of encroachment and submitted that the claim itself is ambiguous, tautologous and meaningless. It is a common ground that the parties are land owning neighbours and therefore the burden was on the Appellant to prove the encroachment and the extent thereof, learned counsel argued. It was further argued that the Appellant only ‘viva voce’ said that the Respondent entered onto his land and moulded blocks thereon without giving a vivid description of the extent of encroachment. He pointed out that the trial court was not invited to visit the ‘locus inquo’, nor was a plan presented to describe the land encroached upon. It was submitted that the burden was on the Appellant to prove the identity and boundaries of the land with certainty. For this argument learned counsel relied on ODUNZE v. NWOSU (2007) 13 NWLR (Part 1050) 1 at 34 and USEZE v. CHIDEBE (1990) 1 NWLR (Part 125) 141 at 159. Learned counsel also referred to the evidence of the Appellant to the effect that he had not been in possession of the land for eight years before the commencement of the suit and submitted that the Appellant failed to prove direct physical possession of the land, nor possession through a servant or a tenant and was not therefore entitled to sue in trespass. He relied on ALHAJI FASASI ADESOYE v. J.O. SIWONKU (1952) 14 WACA 86 and OWE vs. OSIBANJO (1965) 1 ANLR 72.

Learned counsel again referred to the finding of the court below that the Appellant was, at the time of the alleged trespass, not in possession and submitted that since there was no appeal against that finding of fact it ought not to be disturbed. For this submission learned counsel relied on FLORENCE OLASANYA v. OLUFEMI OLUSANYA (1983) 3 SC 41 at 56 and 59 and UNION BANK OF NIGERIA PLC v. ISHOLA (2002) FWLR (part 100) 1253 at 1273.

With respect to the 2nd issue Mr. Chukwu repeated much of the argument he had proffered on the 1st issue. A claim for ” declaration of title to the extent of the encroachment”, counsel argued, cannot be the same as a claim for declaration of title especially where there is no dispute over title or ownership of a particular piece of land. It was counsel’s contention that the trial court erred and the judgment was perverse and that in the circumstances the court below was right to intervene. In support of this contention counsel cited SALAWU v. YUSUF (2007) 12 NWLR (part 1049) 707 at 729. Learned counsel further submitted that although survey plan is not necessary where the identity or boundaries of land are not in dispute the onus of proof of the identity or boundaries of the land still lies squarely on the Appellant. Reliance was placed on AGBEJE v. AJIBOLA (2002) 2 NWLR (part 750) 127 at 135.

On the question of whether by its finding of there being only boundary dispute the court below made a fresh case for the parties, learned counsel insisted that the case for the parties was fought on the question of boundary mark and that the court below was right to reach that finding from the record. He relied on GBADAMOSI v. DAIKO (200) 3 NWLR (part 1021) 306.

In conclusion learned counsel urged that the appeal be dismissed.

I have carefully examined the pleadings of the parties, their evidence in support thereof, the conflicting judgments of the two courts below and the address of counsel for the parties as contained in their respective briefs of argument. With respect to the first and main issue for determination, my view is first to settle the question of whether in the circumstances of the dispute between the parties, the Plaintiff/Appellant rightly claimed for a declaration of title over the land in dispute and the two other ancillary reliefs

In its judgment the court below made reference to parts of the pleadings of the parties and at page 66 of the record found as follows:-

“A comparism of the parties pleadings reveals that this was not a dispute about ownership of land. Rather it was a boundary dispute.

The case of the Plaintiff was that the Defendant was his boundary man and that the Defendant came across the boundary and set up on the Plaintiff’s land a block moulding business. The Defendant’s case on the other land was that the plaintiff had ceased to be his boundary man arising from the fact he sold the parcel of land bothering the Defendant’s and transferred the title and possession therein to third parties”.

The lower court continued:-

“From the state of the pleadings the issue in dispute would appear to be very narrow. It was simply whether or not the defendant crossed the boundary into Plaintiff’s land and whether the plaintiff was in possession of the said land”

And after making some references to parts of the evidence of the parties the court at page 67 of the record concluded:-

“It is clear from the evidence of the Plaintiff that at the time he brought his suit, he was not in possession of the land in dispute. The plaintiff did not also in his pleading and evidence led identify the land which was allegedly trespassed upon by the Defendant”.

The foregoing formed the core reasons for the decision of the lower court dismissing the Plaintiff/Appellant’s claim. Was this decision supported by the pleadings and evidence on record In an attempt to answer this question it is necessary to highlight the factual situation which prompted the institution of the action. This is contained, in paragraphs 4, 5, 6, 7 and 10 of the statement of claim. The said paragraphs run as follows:-

“4. The Plaintiff states that he got title to the said piece or parcel of land by virtue of inheritance through his forefathers.

5. The Plaintiff further avers that he has been in possession and use of same for Farming/Agricultural purposes for over 30 years now without interruption or intervention whatsoever front anybody.
6. The Plaintiff avers that they share common boundaries with the Defendant whereas the Defendant encroached into the Plaintiffs portion of land by way of moulding cement blocks therein. Evidence will be led to establish this fact.
7. The Plaintiff states that he has contacted the Defendant about that act of encroachment, but the Defendant could not offer any meaningful explanation in respect thereto.
8. The Plaintiff avers that the Defendant has planted some kinds of trees thereon in disregard to the warning and advices of the plaintiff with a view to stopping him from such act”..

In his testimony the Plaintiff/Appellant led evidence substantially as pleaded.

He said he inherited the land from his forefathers, his immediate predecessor being his late father Audu. He had been farming on the land and for about 8 years he had rented it to tenants who are farming on it. The Defendant/Respondent was a boundary neighbour and had been such a boundary neighbour for about 12-18 years. Their boundary marks are a drainage which is a natural waterway and a mango tree planted by his late father.

According to him, the Respondent encroached on his said land by establishing thereon a concrete block making business and planting some kinds of trees. In addition he also got reports that the Respondent had plans to sell the land. In the portions of the judgment of the Court of appeal which I have reproduced above, the court per Oguntade JCA (as he then was) reasoned and found that the dispute between the parties was not the title or ownership of the land in dispute and that it was simply a boundary dispute. And although the court did not expressly say so, it was by implication saying that a claim for declaration of title was therefore unnecessary or even inappropriate, the dispute being only a boundary dispute. And apparently because of this notion held by the court it failed to deliberate upon the parties conflicting claims of title over the land.

I am not, with respect persuaded by the reasoning and finding of the Court of Appeal. Even if it is accepted that it is boundary dispute it is, in my considered opinion, one and the same thing as a dispute over title or ownership of the land in dispute. I am unable to find the distinction which the court below tried to make. After all, the case of the Respondent is simply that his concrete block making industry and his other activities on the land complained of are carried out on that piece of land which, according to him, he bought from a brother of the Emir”. In other words he carries out the acts complained of on the land because he claim’s title to it in the con of this case therefore I do not fancy any distinction between boundary dispute and land dispute. In my consideration therefore title was definitely in issue and the Appellant was perfectly in order when he claims for declaration of title.

There is yet another reason for my view that the claim for declaration of title is quite appropriate. The Appellant asserts that he is the owner of the land and has been in possession of same for many years. And for the g years immediately before the filing of the action, he had rented it to tenants who are farming therein. By this assertion he claims to be, at least, in constructive possession. On the other hand, the Respondent having established on the land a concrete block making industry is admittedly either rightly or wrongly in possession. It is a case where both parties are claiming title and possession adversely against each other.

The settled principle of law is that where, as in this case, both parties claim to be in possession the law ascribes possession to the party who has title or better title. see KAREEM & OTHERS v. OGUNDE & ANOTHER (1972) 7 NSCC 60 at 63; KASUNMU, ANOR v. ABEO ( 1972) MSCC 145 at 152; MOGAJU v. ODOFIN (1973) 4 SC 91 at 96-97; AYINLA v. SIJUWOLA (1984) 1 SC NLR 410; AMAKOR v. OBIEFUNA (1974) 1 ALL NLR (part 1) 119. On this question therefore whether the dispute is described as boundary dispute or land dispute, title is clearly in issue. It is the decider issue in this case for once the Appellant succeeds in establishing his title to the rand in dispute the law would ascribe possession to him and the Respondent would automatically be liable in trespass, his concrete block making industry on the land notwithstanding.

As I said earlier in this judgment the ultimate decider issue in this case is the question of who has title to the land in dispute. Regrettably the court of Appeal failed to appreciate this fact and so faired to deliberate upon it. Now what is the relative strength of the parties competing claims of title to the land in dispute

In cases of competing claims of title by the parties one basic principle is that the Plaintiff succeeds on the strength of his case and not on the weakness of the case of the defence. The result is that the court is bound to first consider and decide upon the case of the plaintiff. This principle was articulated in the case of OWOADE v. OMITOLA (1998) 2 NWLR (part77) 423; FABUNMI v. AGBE (1985) 1 NWLR (Part2) 299; BURAIMOH v. BAMGBOSE (1989) 3NWLR (Part 109) 352. Let me therefore first consider the case of the Appellant on his claim of title over the land in dispute.

The Appellant’s root of title is pleaded in paragraph 4 of the statement of claim which I have already reproduced above. It is simply that he got the title to the land through inheritance from his forefathers. His evidence in court was substantially as pleaded. He said he inherited it, his immediate predecessor being Audu, his late father. The PW2 testified to the effect that the Appellant inherited the land from his father who died almost 35 years ago. The evidence of PW3 was substantially to the same effect. He said that over 50 years ago his father and Appellant’s father shared a common boundary and that the Appellant had been on the land since the death of his father in 1966/67.

On this issue of title to the land in dispute let me now examine the case of the Respondent as pleaded. In his statement of Defence he pleaded as follows:-

“1. Save as hereinafter admitted the Defendant denies every allegation of fact herein contained in the statement of claim as if same were set out and denied seriatim.

2. The Defendant admits paragraph 1 & 2 only of the claim and denies paragraphs 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the claim
3. By way of specific response to paragraphs 3,4, 5, and 6 of the claim the Defendant shall say the Plaintiff has ceased to have any interest, customary and statutory in any piece of land anywhere near the Zuma Rock since 1980 or thereabout when he sold off whatever interest in land he might have had.
4. The complaint of the Plaintiff on encroachment come when he had disposed off his last property in the vicinity and when he no longer shares any common boundary with the Defendant.
5. This complaint was found to lack merit when settled out of court by a Farmer Area Court Judge in Suleja acting as arbitrator. And no issue as lo payment of any compensation ever arose.
6. The Plaintiff has no title nor possession to any form land or piece of land that is worth encroaching into by the Defendant.
7. The Defendant urges this Honourable Court to dismiss the Plaintiffs claim with costs for the Defendant”.

It is clear from the 7 paragraph statement of Defence that apart from the general traverse in paragraphs 1 and 2 thereof, the Respondent did not specifically deny the Appellant’s assertion of his title to the land by inheritance. In paragraph 3 of the statement of Defence, the Respondent, in purported specific response to paragraph 3, 4, 5 and 6 of the statement of claim, merely asserted that the Appellant has since sold off whatever interest, customary of statutory, which he had on any land near the Zuma Rock. He did not plead the person to whom the appellant allegedly sold the land and who thus became his subsequent boundary neighbour. At the trial, all that the Respondent said about the Appellant’s alleged sale of his land is contained at page 19 lines 16-17 the record, Where he said:-

“The plaintiff sold his own land to another person who in turn sub-leased it to another person”.

The person to whom the Appellant allegedly sold the land in dispute is again not named. And more importantly, the evidence itself is self-defeating. If the person to whom the Appellant allegedly sold the land merely granted a sub-lease of the land to a third party then the transaction between the sub-lessor or vendor of the sub-lease and the Appellant could not have been an outright sale but merely a lease. It means that the sub-lessor is a tenant of the Appellant. I say so because in law a sub-lease simply means the lease of a property by a tenant or lessee. Black’s law Dictionary 6th Edition at page 1425 describes a sublease as “a lease executed by the lessee of land or premises to a third person conveying the same interest which the lessee enjoys but for a shorter term than that which the lessee holds, or a transaction whereby a tenant grants interest in leased premises less than his own.” Having regard to the meaning of the word sublease therefore the evidence of the Respondent is not only self-defeating. It is a statement or evidence which terms are mutually contradictory. And more significantly the evidence also supports the case of the Appellant the substance of which is that he never sold the land; that as owner in possession he had been using the land for farming and that for the 8 years before filing this suit, he had rented it to tenants who are farming on it. In part of his evidence under cross-examination at page 15 lines 14-18 of the record the Appellant said:-

“I have been farming on the land, I inherited it from my father for over 20 years. It is one large piece of land. I did not measure my land. I never sold that piece of land. I hired it to some people for forming. I have been farming on the land since 1980. Those hiring it have been farming there for 8 year now presently, those people are farming on it”. (underlining mine)

The above clearly shows that the Plaintiff/Appellant neither in his pleading nor in his evidence in court asserted any sale of his property to any person. He only leased it to some persons for farming purposes.

There was yet another fundamental defect in the case of the Respondent.

In the entire 7 paragraph statement of Defence he never pleaded his root of title. The issue in focus in his pleading is that the Respondent has sold off whatever interest he had on any land near the Zuma Rock. Therefore his evidence in Court to the effect that “he bought the land in 1976 from the brother of the Emir” is not in support of any pleading in the statement of the Defence and therefore goes to no issue and ought to have been rejected.

Assuming without conceding that the piece of evidence was in support of a fact pleaded it is my view that it had no probative value. The trial court accorded no probative value to the piece of evidence. At page 28 of the record the trial court reacted:

“The Defendant in his evidence before the court stated that he bought the said land in 1976 from the brother of the Emir. The Defendant did not however disclose the name of the Emir’s brother from whom he bought the land. This piece of evidence raised so many questions and left them unanswered e.g, What is the name of that person Has that person any title to that piece of land, if so how Is that person alive If he is alive why was he not called as a witness In the presence of who did that person sell the land to him Whether that contract of sale was evidenced in writing and if so where is the document of sale. All these questions remain throughout the evidence of the Defendant unanswered”.

continuing, the trial court proceeded to consider the fundamental issue of the Respondent’s failure to plead his root of title. He said:-

“To crown it all, that piece of evidence was never pleaded by the Defendant in his statement of Defence. Evidence led on facts not pleaded goes to no issue and ought to be expunged. In fact evidence on facts not pleaded must be disregarded by the court……..”

The trial court relied on the principle in AGU v. IKEWIBE (1991) 4 SCNJ 56 at 74 and concluded:-

“In the light of this, I hold that the piece of evidence led by the Defendant namely that he bought the said land from the Emir’s brother goes to no issue”.

Still on the Respondent’s proof of title the trial court at the same page 28 proceeded to examine Respondent’s purported certificate of occupancy. The trial court proceeded thus:

“The Defendant in his evidence further stated that he was given a right of occupancy of the farm in question. The certificate of occupancy was according to him signed by the then Military Governor of Niger state David Mark. The Defendant also stored that he fenced that piece of land with pillars and barbed wires. These facts were similarly not pleaded and it goes to no issue and I accordingly so hold”.

On this issue of the Respondent’s proof of title, I agree entirely with the foregoing reasoning and findings. If the Respondent considered his purported Certificate of Occupancy to be his root of title he had a duty to plead facts in respect thereto and found upon it at the trial. This he failed to do.

On this issue of title to the land in dispute the Defendant/Respondent has no case to compete with that of the Appellant. His evidence that he bought the land in 1976 from a brother of the Emir was not in support of any paragraph of the statement of Defence. And as the trial court highlighted, the evidence itself was manifestly unreliable. It had no probative value. With respect to the Certificate of Occupancy apart from the fact that matters in respect thereto were not pleaded, it was not tendered in evidence. On the whole the Defendant/Respondent adduced no evidence of title to the land in dispute. I am persuaded by and agree with the submission of learned counsel for the Appellant that on this issue of title to the land in dispute the case of the Plaintiff/Appellant remains unchallenged.

This appeal therefore ought to succeed on this sole issue of proof of title of the land in dispute.

Before the conclusion, let me briefly comment on the finding by the Court of Appeal on the question of whether the Appellant was in possession of the land in dispute at the time of the filing of the suit. In its judgment at page 68 of the record the Court of Appeal Per Oguntade JCA (as he then was) opined:

“In the instant case the defendant pleaded evidence that the Plaintiff was not in possession of the land at the time of the alleged trespass. The Plaintiff himself admitted that he had leased out the land to 3rd parties some 8 years before he brought the suit. Clearly therefore the Plaintiffs case ought lo have failed unless he was able to show that the nature of the defendant’s trespass would cause a diminution of his reversionary interest in the land. This certainly was not the case of the Plaintiff. I think that the lower court ought to have refused the claim for trespass”.

I do not, with respect, agree with the above reasoning and finding of the court below. A person who has title over a piece of land and in the exercise of his right as such owner leases the land to tenants is, in law in effective possession and can sue anybody in the world for trespass except his lawful lessee or tenant. This principle was restated in the case of ANYABUSI v. UGWUNZE (1995) 6 NWLR (Part 401) 255 at268 where this Court Per Iguh JSC restated the principle thus:-

“A landlord who collects rents from his tenants in respect of a piece or a parcel of land is clearly ‘dejure’ possession of such land even though he is not in physical occupation or ‘defacto’ possession thereof”.

The lower court having found that the Appellant had leased the land to third parties was not justified in holding that he was not in possession. Going by the unchallenged evidence of the Appellant’s lease of the land to 3rd parties and the evidence of the Respondent supporting the Appellant’s lease of the land, the Appellant was at least in constructive possession.

The finding of the court below on this question of the Appellant’s possession of the land in dispute is clearly perverse and ought to be set aside.

The lower court also found that the Plaintiff/Appellant did not in his pleading and evidence identify the portion of his land which was allegedly trespassed upon by the Defendant/Respondent.

In the first place the identity of the land was not made an issue. It is settled law that filing a survey plan is not always an absolute necessity in land matters where from the description of the land given in evidence a surveyor will be able to produce an accurate plan of the land. See KWADZO vs UGA (1962) 1 ANLR 482 at 484; MABERI vs ALADE (1987) 2 NWLR (Part 55) 101.

The Defendant/Respondent has never claimed not to know the land in dispute.’

It is the land on which he has established his concrete block making industry and which act constitutes the immediate cause of action.

The Appellant described one of the features of the boundary as a drainage or a natural waterway. The Appellant also said that his father planted a mango tree at the boundary . At page 29 of the record the trial court after extensive appraisal of the evidence concluded thus:-

“The testimonies of the Plaintiff and his witnesses left no one in doubt as to the identity of the farm land in question. I found the evidence of the Plaintiff on this overwhelming”.

I have no basis for faulting this finding of the trial court particularly having regard to the fact that it is the land in which the Respondent has his concrete block making industry.

In conclusion I hold that this appeal has merit. The judgment of the Court of Appeal dated the 9th of June, 2003 be and is hereby set aside. And the judgment of the trial court dated the 26th of June, 2000 is hereby restored.

There shall be costs which I assess at N50,000.00 (fifty thousand naira) only in favour of the Appellant.

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SC.115/2005