David Fabunmi V. Abigail Ade Agbe (1985)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, J.S.C. 

The appellant was the defendant to a suit instituted by the respondent as plaintiff in the Ikeja Division of the High Court of Lagos State. In the suit, the respondent claimed:

“(1) declaration of title in fee simple to all that piece or parcel of land situate, lying and being at Palm Avenue, Mushin, Lagos State and more particularly described on Plan No. LAT.648/L/77 attached to a Deed of Conveyance dated 19th August, 1977 registered as No.8 at page 8 in Volume 1648 of the Registry of Deeds at the Lands Registry, Lagos.

(2) N200.00 general damages for trespass to the said land,

(3) perpetual injunction restraining the defendant his servant and or agents from committing further acts of trespass to the said land.”

Pleadings were filed and exchanged on the order of the Court and the appellant as defendant filed along with his statement of defence in paragraphs 24, 25 and 26 a counter claim as follows:

“25. The defendant counterclaims for a sum of N1,500.00 for damages done to the gate of his fence and for the foundation on the piece of land.

26. The said damages were caused by the plaintiff in or around November, 1977 despite repeated warnings both from the defendant and his agents.”

The case came up for hearing before Desalu. J. and at the conclusion of the hearing, he dismissed both the claim and counterclaim in a well considered judgment. In respect of the plaintiff’s claim for title, the learned trial judge said:

“In fact, Mr. Alaka testified that Palm Avenue, was bush when he was preparing the layout plan and again I believe him on this point.

I ask myself from the evidence before me, from what point on Exhibit ‘T’ towards Palm Avenue: does Oteniya family land extend beyond the area marked red on the said Exhibit, is it from the pillar marked 722 or from pillar AC2570 or is it from Peg 4

No evidence was adduced by the plaintiff or any of her witnesses to satisfactorily establish this fact.

I am therefore not satisfied from the totality of the evidence in this case that the land the subject matter of this action, falls within the land of the Oteniya family I am therefore not satisfied that this is a proper case in which I should make a declaration of title in favour of the plaintiff, her radical title not having been well founded or proven.”

In respect of the claim for trespass, the learned trial judge said:

“The plaintiff was the only person who gave any evidence of any acts of possession over the land in dispute by her. All plaintiff witness 3 Isiba did was to show the land to the plaintiff, sell and convey same by virtue of Exhibit “A”.

I prefer and believe the evidence of the defendant in this case as to the various acts of possession over the land in dispute both by the defendant himself and his predecessors in title.

I am therefore not satisfied from the evidence before me that the plaintiff was in exclusive possession of the land at the time of the alleged trespass so as to found the claim which would, entitle her to the damages claimed or any damages at all.” (Italics mine)

Turning to the claim for injunction, the learned trial judge said:

“Having so found in the two preceding claims of the plaintiff, as I had earlier on in this judgment done, I hold that the plaintiff is therefore not entitled to a perpetual injunction to restrain the defendant, his servants and or agents from committing further acts of trespass to the said land in dispute.”

The learned trial judge then considered the counterclaim and said:

“The genesis of the deeds of title relied on by the defendant is Exhibit E4……I am aware of and had read the endorsement on the plan attached to Exhibit E4 and signed by two of the signatories namely, Bada and Ogunlana. I am however not satisfied that the endorsement was with the approval and or concurrence of the other vendors in Exhibit E4. The plaintiff in paragraph 14 of the amended statement of claim avers that Exhibit E4 is tainted with fraud and gross illegality…..

It will be seen on the plaintiff’s pleading that there was no specific allegation of crime.

I am however in respectful agreement with the findings of the Supreme Court in M. J. Lababedi and others v. Lagos Metal Industries (Nigeria) Limited (1973) 1 SC.1 that fraud or illegality in a deed taints the title, derivable therefrom of the subsequent transferees………………………….

Following the principle of law nemo dat quod non habet, I hold the view that subsequent transfers emanating from Exhibit “E4″ as it is by Exhibits ‘J’, ‘K’ and ‘L’ do not ameliorate the position. I am therefore not satisfied that the right to possession of the defendant founded on Exhibit L and rooted in Exhibit 4 has been established.

The defendant’s claim by his pleading is as herein before stated and not one founded on possession as a trespasser………..

I am of the view that it is not open to this court to find facts otherwise than as pleaded. The defendant’s counterclaim for damages for trespass as pleaded therefore fails and is hereby dismissed.”

Both the plaintiff and the defendant were dissatisfied with the judgment and as a result each side appealed to the Federal Court of Appeal now restyled Court of Appeal against the judgment. The appellant herein was dissatisfied with the failure of the Court to award damages to the appellant for trespass and failure to grant him an order of injunction.”

and the relief sought from the Court of Appeal

“To set aside the judgment of the lower court as it relates to the defendant’s counter-claim and to substitute in its place:

(i) judgment in favour of the defendant on his counter-claim and an award of damages for trespass to the land in dispute by the plaintiff.

(ii) Perpetual injunction to restrain the plaintiff from further acts of trespass on the land in dispute

The respondent herein was dissatisfied with “the whole judgment” and the relief sought from the Court of Appeal was

“An order setting aside the judgment of the High Court, Ikeja………. and giving judgment in favour of the plaintiff as per her writ of summons.”

The parties, with leave of the Federal Court of Appeal, amended and added to their grounds of appeal before the Court of Appeal (Nnaemeka Agu, Mohammed and Kutigi, JJCA.) heard arguments of counsel for the parties. In a well considered judgment, the Court unanimously allowed the appeal of the plaintiff and dismissed the appeal of the defendant, (the appellant herein). The lead judgment (concurred in by Mohammed and Kutigi, JJCA.) was delivered by Nnaemeka-Agu, JCA:

On the issue of declaration of titles, he said, inter alia:

“I am satisfied that if the learned judge had confined himself to the issues properly before him and considered and approached the case and evidence called by the parties on the point correctly, he would have had no difficulty in coming to the conclusion that Palm Avenue is the boundary between them and that the land in dispute is on the Oteniya family’s part of the boundary. It also follows that Oteniya family had title to the land in dispute which was duly sold and conveyed to the respondent by Exhibit A. On the contrary, the Alago-Asalu family had no title over the land in dispute……………………………..So, as evidence of title and possession was called by both sides, the court should ascribe possession to title Pius Amakor v. Benedict Obiefuna (1974) 1 All N.L.R. (Part 1) 119. On my finding that the respondent proved a better title to the land in dispute, I ascribe title to her. It follows that the learned judge was right to have dismissed the appellant’s counter-claim for damages for trespass.

On the appellant’s (i.e. defendant’s) application to amend his claim and pleading by adding a claim for permanent injunction, I am of the view that I should refuse the application at this stage for two reasons. First because of the conclusion I have reached in the whole case, such an amendment will serve no useful purpose. Secondly, it is too late in the day to add such a substantial claim on which no issues were joined in the court below……………….

For all I have said above, I hold that the respondent (plaintiff) proved her case and is entitled to judgment and that the appellant failed to prove his counter-claim.

In the result, I allow the respondent’s (plaintiffs) appeal and set aside the judgment of Desalu, J. in suit No. 1D/422/77/L. I grant to the plaintiff the declaration of title and perpetual injunction she claims. I also award plaintiff N200.00 as general damages for trespass committed by the defendant on the land. I hereby dismiss the defendant’s counter-claim.”

The defendant/appellant aggrieved by the decision has further appealed to this Court. Eight grounds of appeal involving questions of fact alone, mixed law and fact and law alone were filed. The eight grounds can, in my view, be roled up in one ground, the last ground, ground ‘H’ which

reads:

“The judgment of the learned judges of Appeal Court is against the weight of evidence”.

However, of particular importance are grounds A, B, C, D, F and G which read:

A. The learned judges of the Federal Court of Appeal misdirected themselves on the facts and came to a wrong conclusion in the case when they held that ‘Palm Avenue’ (as depicted on the appellant’s plans (Exhibits A and F in the record of appeal) is the same as “Ona Oko Oke” and forms the boundary between the rival predecessors in – title of the parties to this suit; when it is patent from the evidence that Palm Avenue is not and cannot be the same as “Ona Oko Oke” and accordingly cannot be any such boundary.

Particulars

(i) The defendant/appellant’s surveyor, Alaka (Dw. 3) made no such admission (i.e. that he placed his new road on the path where the old foot-path was) as was ascribed to that witness in the judgment of the Court of Appeal.

(ii) More than the bland assertion of p.w.2 and p.w.3 is required in this case to establish or identify the physical location of an old footpath which a modern road (Palm Avenue) created by D.W.3 in a modern Government approved Plan.

B. The learned appellate judges misdirected themselves in law and came to a wrong conclusion on the facts when they held that the learned trial judge failed to “use his advantage of seeing and hearing p.w.3 by not saying whether or not he believed him on the point and has palpably misused such an advantage in the case of p.w.2 for the reasons I have given” (i.e. boundary between the two contesting predecessor families)

Particulars

(i) The Supreme Court decision of Akiku v. Opaleye (1974) 11 SC. 189 was on the facts of this case patently misapplied;

(ii) The record of appeal is replete with reasons why p. w. 3 was disbelieved;

(iii) It is not the duty in law of the defendant/appellant to prove the boundary between the two families;

(iv) The appeal court failed to give due effect (as the trial judge did) to the evidence of p.w. 2 that Oteniya family were until this suit unaware of the fact that their land had never been shown (in their previous litigations and plans used in them) to extend to the land in dispute in this case.

(v) The consequent inference drawn from the facts by the learned judges of the Court of Appeal are, from the record, non sequitur.

C. The learned judges of appeal erred on the facts and came to a wrong conclusion in law when they held that the admitted act of substitution of a new plan some two years after registration makes such a new plan unreliable for purposes of establishing title based on appellant’s deed of title, for it means that he has failed to prove the precise area and the identity of the land granted him.”

Particulars

(i) The appellant made no claim of title to any land;

(ii) His claim in damages for trespass is not and does not necessarily depend upon the deed of title Exhibits E3 and E4.

(iii) The identity of the land on which the appellant was building when he was disturbed by the plaintiff is not an issue between the parties;

(iv) On the evidence before the court, no fraud whatsoever was proved in this case.

(v) Even if fraud was proved (which is denied) there was no fraud upon which the plaintiff/respondent can rely in this case.

(vi) The effect in fact or in law of the change in the plan annexed to the registered conveyance was not shown to the court.

(vii) The plaintiff/appellant cannot in law prove her title by relying on any real or supposed weakness in the defendant/applicant’s case.

D. The learned judges of appeal misdirected themselves on the facts when they held that on the question of the boundary between the two contesting families, D.W.3 (Salisu Akanbi Alaka) gave evidence in support of plaintiff/respondent’s case

Particulars

(i) On the correct view of the recorded evidence of d.w.3 that witness did not say what was ascribed to him by the court nor could his testimony – as recorded – be interpreted in the way the learned judges of appeal did.

(ii) Evidence as to who gave the name “Palm Avenue” to the existing road adjoining the land in dispute was elicited in cross-examination by the plaintiff/respondent and the answer recorded to disprove her case.

(iii) …………………………

…………………….

F. The learned judges of Appeal erred in law and mis-understood the purport of the appellant’s submissions i.e. (that p.w.3’s evidence, Chief Bada amounts to a derogation from grant and ought not inter alia to be relict upon by a court of law) when it wrongly held that plaintiff/respondent can rely upon the said evidence to establish her case.

Particulars

(i) ………………………..

(ii) ………………………..

(iii) ……………………….

(iv) P. W. 3’s evidence cannot in any event be conceived as an admission against interest, i. e. of the appellant.

G. The learned judges of Appeal erred in law and came to a wrong conclusion on the facts in holding as they did that the complaint of the appellant, i.e. that the evidence of p.w. 3 amounts to a derogation from grant, ought to have been raised in the lower court and that it was being raised before the Court of Appeal for the first time, and ought not to be countenanced.

Particulars

(i) The point was in effect and in any case, actually raised in the lower court.

(ii) The lower court in any event did not in fact rely upon p.w. 3’s evidence and it said so

(iii) ………………………..

(iv) ……………………….

What are the issues or questions for determination in this appeal

Mr. Sogbesan, SAN., learned counsel for the appellant in his brief put the number of questions as 5. These are:

(1) whether on the evidence led before the trial court, a road named “Palm Avenue” is the same as an ancient footpath called “Ona Oko Oke” and whether that road was the boundary between the rival predecessors-in-title of the parties to this appeal.

(2) whether the Court of Appeal correctly applied in this case, the principle enunciated in the case of Akiku v. Opaleye (1974) 11 SC. 189 at 203, i.e. that the use by a trial judge:

‘of the expressions, ‘I believe’ and ‘I do not believe’ without really evaluating the testimony of vital witnesses does not estop an appellate court from itself evaluating the evidence”

(3) whether the Court of Appeal is right in concluding (on the plan annexed to Exhibit E3 admitted to be a new plan substituted for the plan originally annexed, to the appellant predecessor-intitle’s registered conveyance) that the said plan was unreliable for establishing the title of the appellant when the appellant did not counterclaim for title to the land in dispute but for trespass; and particularly when the identity of the land trespassed on was not in dispute between the parties.(4) whether the Court of Appeal is right to require the appellant to proffer evidence and to prove where the boundary lay between the rival predecessors-in-title of the parties when it was the respondent who in her pleadings averred that she had title to the land and further averred therein that the boundary between the two rival predecessors-in-title was an old footpath which she claimed had now become the modern road called “Palm Avenue.”

(5) Whether the Court of Appeal is right

(a) to have ignored the submissions made to it by the appellant that p.w.2’s testimony amounted to a derogation from grant and is for that reason and inter alia very unreliable.

(b) to have acted upon such evidence in finding for the respondent.

I find myself in agreement with appellant’s counsel that these five questions were raised by the grounds of appeal filed. The five issues are subsidiary to two main issues which are:

(1) whether the respondent discharged the onus of proof required of a claimant for a declaratory judgment to entitle her to the declaration of title granted her by the Court of Appeal.

(2) whether the appellant has established a case of trespass against the respondent to entitle him to an award of damages and a grant of injunction.

The answers to these questions can only be found by reference to the pleadings and evidence in their proper light.

Emerging from the pleadings is the fact that each side set up the title of the original owner family of a vast area of land of which the land in dispute is part as the root of his or her title.

According to paragraph 19 of the amended statement of claim, filed on 30/7/79:

“The land in dispute in this matter is on the south-eastern side of Palm Avenue and formed part of the land of Oteniya family.” While according to paragraph 6 of the amended statement of defence filed on 17/8/79:

The land in dispute forms part or portion of a vast area of land (45.70 acres) situate at Obele Igbodo and which from time immemorial belonged to members of Alago-Asalu family.”

The plaintiff went on further to plead in paragraph 9 of the amended statement of claim that:

“The plaintiff will, at the trial fortify her title to the said land by relying on the judgment in the Supreme Court suit No. SC.624/65 being a decision of an appeal from the High Court suit No. Ik/103/60 between Oteniya family v. Esikonbi family.”

In paragraphs 3 and 6 of the amended statement of claim, the plaintiff had pleaded title and possession as follows:

“3. The said land formed portion of a large parcel of land originally owned and possessed by the Oteniya family who have for several years been exercising thereon maximum acts of ownership from one generation to another without any hindrance or interruption whatsoever.”

6. The plaintiff avers that her predecessor-in-title, the said Oteniya family have been in exclusive and uninterrupted possession of a large parcel of land including the plot in dispute from time immemorial”

The above paragraphs of the amended statement of claim were denied in paragraphs 3, 5 and 24 of the amended statement of defence. In paragraphs 16, 17 and 18 of the amended statement of claim, the plaintiff pleaded:

“16. The plaintiff avers that the boundary between the land of the plaintiffs predecessor-in-title, Oteniya family and the land of Alago Asalu family was formerly a footpath which later developed and became known today as Palm Avenue.”

17. The land of the said Alago-Asalu family is situate, being and lying on the north-western side of Palm Avenue as is today known as Papa Ajao.
18. The land of the plaintiff’s predecessor-in-title is situate, being and lying on the south-eastern side of Palm Avenue.”

These three paragraphs, i.e. 16, 17 and 18 of the amended statement of claim were denied by the defendant in paragraph 24 of the statement of defence. The plaintiff in paragraph 10 of the, amended statement of claim averred:

“The plaintiff avers further that the said Oteniya family put her into a vacant possession of the land in dispute and she took effective and physical possession thereof.”

This was after the sale to the plaintiff under and by virtue of Deed of Conveyance dated 19th August, 1977 of which Exhibit A is a certified true copy. Dealing with the preparation for a building on the land, the plaintiff in paragraph 12 pleaded:

“That the plaintiff immediately she was put in possession of the land in dispute the plaintiff caused a building plan of her proposed building on the said land in dispute (to be drawn or made) which was submitted to the Lagos State Development and Property Corporation for approval (words in brackets supplied) And in paragraph 14(e) the plaintiff averred:

“The land in dispute is not part of the portion of land sold and conveyed to Ojetola Ajao in December, 1953.”

The defendant pleaded the transfer of title to the land from Alago Asalu family (through Ojetola Ajao who acquired it in 1953 December 24, through Amos Adetona Ajao attorney for himself and on behalf of his two brothers, Chief Joseph Adediran Ajao and Samuel Aderinto Ajao who inherited if from Ojetola Ajao on his death through Adeniran Adebiyi who acquired it on 8th August, 1956 through Theophilus Sunday Aliu who acquired it on 8th day of July, 1974) to him on 29th day of April, 1976.

The defendant pleaded possession and the acts of trespass of the plaintiff in paragraphs 18, 19, 20 and 21 of the amended statement of defence. These paragraphs read:

“18. Both the defendant and his predecessors-in-title have been in continuous possession and uninterrupted enjoyment of the said plot of land for over 25 years exercising all acts of ownership and possession “nec vi, nec clam, nec precario.” In particular both the defendant and his predecessor-in-title demonstrated their acts of ownership and possession by planting crops like yam, maize, okra, tomatoes and other vegetables on the piece of land from year to year. Also the land was surrounded with a fence and a foundation was constructed on it up to DPC level.

20. The defendant made a building plan No.DCB/2988/26A, which was approved on the 9th day of November, 1977
21. Contrary to the allegation contained in paragraph 11 of the amended statement of claim, it was the plaintiff who trespassed on the defendant’s land by damaging the gate of the fence and the foundation on the land. The foundation had been in existence long before the plaintiff came to the site.”

Pleading further in paragraphs 14, 28 and 32, the defendant averred

“14. By virtue of the power of attorney given to him, Amos Adetona Ajao, acting for himself and on behalf of his two brothers (Chief Joseph Adediran Ajao and Samuel Aderinto Ajao) made a layout of the said vast area of land by dividing it into building plots and the piece of land now in dispute became known as plot No.46 of the said layout.

28. The piece of land in dispute is not a part of the large area covered by the Supreme Court judgment in suit No.SC/624/65 which is a decision on appeal from suit No.HK/1031960 between Oteniya family and Esikonbi family.
29. The whole of the layout shown on the plaintiffs composite plan No.K4385 (Annexure ‘C’) was drawn by Ajao family (the defendant’s predecessor-in-title) on the 17th day of September, 1955 (24-years ago)

The facts pleaded by the parties really settled the issues for determination and the questions raised are:

(1) Is the land in dispute part of the land owned by the Oteniya family from whom the plaintiff acquired her title in respect of which she now seeks a declaratory judgment

(2) Was the plaintiff in possession of the land in dispute and if so was her possession disturbed by the defendant

(3) Was the defendant in possession of the land in dispute and if so was his possession disturbed by the plaintiff

(4) Was the defendant in possession of the land in dispute

(5) Did the plaintiff discharge the burden of proof to entitle her to a declaratory judgment and damages for trespass and injunction

(6) Did the defendant discharge the burden of proof to entitle him to judgment for damages for trespass and injunction

The 1st, 2nd, 3rd and 4th issues were resolved by the learned trial judge in favour of the defendant against the plaintiff. The 5th issue was determined against the plaintiff. The 6th issue was resolved in favour of the defendant but neither an award of damages nor an order of injunction was made in favour of the defendant.

What were the findings made by the learned trial judge From the evidence adduced by the parties and their witnesses, the learned trial judge made the following findings:

(1) Plan CW678/61 attached to Exhibit C shows the boundary of all the entirety of the land being claimed by the plaintiff’s predecessors-in-title the Oteniya family.

(2) Plan No. K4385 was tendered as Exhibit ‘F’ and therein it shows the land being claimed by the plaintiff as entirely outside that of the said Oteniya family.

(3) Although the plaintiff claims the Oteniya family and Alago Asalu family share a common boundary, yet in the plan No.CW678/61 made in 1961 attached to Exhibit ‘C’ the vast expanse of land to the north east thereof was shown to belong to Alagbeji not Alago Asalu family.

(4) Chief Bada, p.w.2 had not been to Ona Oko Oke through the old footpath since 1953

(5) D.w. 3 Salisu Akanbi Alaka, d.w. 3 licensed surveyor prepared Ajao Layout in 1955 and he created “Palm Avenue” instead of the usual proposed road in the layout.

(6) The area covered by Palm Avenue was bush when d.w.3 Salisu Akanbi Alaka prepared the layout.

(7) On the evidence the land in dispute does not fall within the land of the Oteniya family.

(9) The plaintiff was the only person who gave evidence of any acts of possession over the land in dispute by her. All plaintiff’s witness 3 Isiba did was to show the land to the plaintiff, sell and convey same by virtue of Exhibit A.

(10) The plaintiff was not in exclusive possession at the time of trespass to entitle her to the damages claimed or any damages at all.

(11) The plaintiff is not entitled to perpetual injunction to restrain the defendant, his servants and or agents from committing further acts of trespass to the land in dispute.

(12) It will be seen from the plaintiff’s pleadings that there was no specific allegation of crime to amount to fraud.

(13) The learned judge was not satisfied that Exhibit E4 upon which defendant relies, alienated the land as described and delineated in and by the plan attached No.A/9/55.

(14) The right to possession of the defendant founded on Exhibit E4 and rooted in Exhibit E4 has not been established because of the absence of proper explanation of the change of the plan from No.A/49/53 to A. 9/53.

(15) “I do not think it will be proper for me to hold alternatively that the defendant having failed to prove his right to possession as pleaded, he is in possession as a trespasser and so could succeed in a claim for damages for trespass” concluded the learned trial judge.

The learned trial judge fell into the grave error of conceiving that to succeed in a claim for trespass against A, C, the claimant must plead and prove that he acquired his possession as a result of his trespass against B and not that he acquired his possession from D whose title he could not fully establish by evidence. Even if D were in trespass, his possession is good against the whole world but one who has a better title.

In other words, the learned trial judge was saying that even though he was satisfied that the defendant has proved possession, because he did not satisfy him that the possession of Ojetola Ajao followed the title conveyed by Asalu Alago family which he pleaded he is not entitled to damages notwithstanding that the defendant and his predecessors in title have been in possession of the land in dispute for over 25 years. This is a total departure from the long established principles of law.

The learned trial judge may have been oblivious of the state of law that “possession is itself title against a person who has no title.” I for a start, refer to the case of Nwosu v. Otunola (1974) 1 All N.L.R. (Part 1) 533 where Fatayi-Williams, JSC. (as he then was) delivering the judgment of this Court said at page 540:

“We think that the real issue is as to whether the appellant’s possession is lawful and that even if he were a trespasser in prior possession, the respondent must show that he has a better title than the appellant. This is born out by the following observation in Asher v. Whitlock (1865) LR. J QB 1 at p. 5.

“But I take it as clearly established that possession is good against all the world except the person who can show a good title; and it would be mischievous to change this established doctrine. In Doe v. Dyeball Mood and M & M 346, one year’s possession by the plaintiff was held good against a person who came and turned him out and there are other authorities to the same effect. Suppose the person who originally enclosed the land has been expelled by the defendant or the defendant had obtained possession without force by simply walking in at the open door in the absence of and were to say to him ‘you have no more title than I have, my possession is as good as yours, surely ejectment could have been maintained by the original possessor against the defendant” (Italics mine)

When the matter came to the Court of Appeal, the findings of facts were not left alone at the Court of Appeal. The Court of Appeal rejected the findings of fact made by the learned trial judge, took a view of the evidence of Chief Bada, p.w. 2 and Alhaji Aliu Isiba, p.w.3 totally different from the view held by the learned trial judge. The reasons for the action of the Court of Appeal contained in the judgment of Nnaemeka Agu, JCA. read:

(1)…….. “This evidence [of p.w.3] was adverted to by the learned judge at page 135 line 25 to page 136 line 11 of the record. I cannot see where this witness was disbelieved or any reason why he should have been believed. Rather, his evidence was supported on the point by that of the head and attorney of Alago Asalu family, Chief O. S. Bada (see p. 87 of the record). Ordinarily, these two men are in position to know what and where their common boundary is.”

(2) “The learned judge said that Chief Bada’s evidence should not be believed in its entirety but should be treated with caution…………..He ought to have said what part he believed and which he did not. Also the reason for disbelieving him on the state of the pleading and the evidence when there was no other evidence of the same quality on the other side of the scale on the point should have been apparent or stated. In this respect, I can do no better than repeat what the Supreme court had to say in Akibu v. Opaleye & Anor. (1974) 11 SC. 189 at 203 where their Lordships said:

“With respect to the learned trial judge in this case we feel that the use of “I believe” and “I do not believe” without really evaluating the evidence of vital witnesses does not estop an appeal court from itself evaluating the evidence and seeing whether there is justification for the use of such expressions. It is also settled law that it is the duty of a trial judge to evaluate relevant and material evidence before him.”

(3) “Although the trial judge saw and heard these two vital witnesses for the respondent namely Chief O.S. Bada, p.w.2, and Alhaji Alii Asiba, p.w.3, and this court attaches great weight to a decision of the court of first instance on facts, it appears to me that the learned judge has failed to use his advantage of seeing and hearing p. w. 3 by not saying whether or not he believed him on the point and has palpably misused such an advantage in the case of p.w.2 for the reasons I have given. In the circumstances, I consider it the duty of this court to form its own independent opinion and draw its own inference on the issue of fact.

See Benmax v. Austin Motor Co. Ltd. (1955) 1 All E.R. 326, p.327. Montgomerie & Co. v. Wallace Jones (1904) AC p. 75. See also Fatoyinbo v. Williams 1 FSC. 87.” (Italics mine)

The learned Justice of the Court of Appeal had said earlier in his judgment:

“What I consider to be the heart and soul of this appeal and cross-appeal is, what is the boundary, if they have a common boundary, between Oteniya family through whom the respondent claims and the Alago-Asalu family under whom the appellant claims through Ojetola Ajao, through Amos Adetona, through Isaac Adeniran Adebiyi and directly from Theophilus Sunday Aliu. For it appears to me that although the respondent claimed inter alia, a declaration of title to the land in dispute, the crucial issues are whether her predecessors-in-title, the Oteniya family had a common boundary with Alago Asalu family, the predecessor-in-title of the appellant over and around the land in dispute and whether that boundary is Palm Avenue.” (Italics mine)

Having said this, the learned Justice of the Court of Appeal after evaluating the evidence said:

“Taking the pleading and evidence thereon together with the plan attached to the respondent’s conveyance Exhibit A, the position of Palm Avenue (in place of Ona Oko Oke) as well as the plot in dispute as shown in Exhibit F and the evidence of the two heads of and attorneys for the two families (i.e. p.w. 2 and p.w.3), it will be easily seen that that view of the learned judge on this aspect of the case is wrong and not borne out by the pleadings and evidence. I am satisfied that if the learned judge had confined himself to the issues properly before him and considered and approached the case and evidence called by the parties on the point correctly, he would have no difficulty in coming to the conclusion that Palm Avenue is the boundary between them and that the land in dispute is on the Oteniya family’s part of the boundary. It also follows that the Oteniya family had title to the land in Exhibit A, on the contrary, the Alago-Asalu family had no title over the land in dispute. Their sale and conveyance of the land to dispute which was duly sold and conveyed to the respondent by Ojetola Ajao and other intermediate dealings on the land through which the appellant derived his title to the land in dispute are invalid.”

That constitutes a total reversal of the findings of the learned trial judge. The legal basis for interfering with findings of fact by a court of appeal have been correctly and properly stated by the learned Justice of the Court of Appeal.

But do they really exist in the instant appeal Is the exercise by the Court of Appeal not really an exercise for the substitution of its own view of the evidence for that of the learned trial judge which is against the laid down rule of law

Mr. A. O. Sogbesan, S.A.N., learned counsel for the appellant contended before us that there was no basis for disturbing the findings of the learned trial judge. He referred to and pointed out the relevant portion of the evidence of the witnesses called by the plaintiff and in particular, p.w.2 and p.w.3 and the witnesses called by the defendant which amply justify the findings made by the trial judge. He urged the Court to allow the appeal, dismiss the plaintiff/respondent claim and grant the defendant’s/appellant’s counter-claim. He also urged the Court to exercise its jurisdiction and grant an order of injunction although not originally claimed by the defendant/appellant in his counter-claim but applied for at the Court of Appeal.

Mr. Adefala, learned counsel for the respondent vigorously contended that there was ample justification for the disturbance of the learned judge’s findings of fact. He was however at pains to explain the plan Exhibit F and the plan attached to Exhibit C which rather than support. contradicts the case put forward by the plaintiff/respondent. He was at pains to point to any evidence to explain and correct the physical existence of Ona Oko Oke with Palm Avenue having regard to the evidence of P.W. 2 and having regard to the evidence of D.W. 3 accepted by the learned trial judge that Palm Avenue was created in 1955 and that before then, the site now occupied by Palm Avenue was bush.

The duty of a Court of Appeal and the circumstances justifying interference of the findings .of a trial court by the appeal court were recently examined by this Court in the cases of Chief Frank Ebba v. Chief Warri Ogodo & Ors. (1984) 4 SC. 84 and Okofor v. Idigo (1984) 1 SCNLR. 481. These cases were preceded by a long line of decisions of this Court including:

Akinloye v. Bello Eyijola (1968) NMLR. 92

Chief Fabunmi & Anor. v. Obaje & Anor. (1968) NMLR. 242

Lawal v. Dawodu (1972) All N.L.R. (Part 2) 270 at 286

Kakarah v. Imonikhe (1974) 4 S.C. 153

Mogaji v. Odofin (1978) 4 SC. 91

Victor Woluchem & Ors. v. Chief Simon Gudi & Ors.

(1981) 5 SC. 319 at 326.

warning against uncalled for adventure by the Court of Appeal. I agree with the Court of Appeal that where a trial court has drawn wrong inferences and conclusions from the facts established before it, or where it has failed to make proper use of the advantage of seeing and hearing the witnesses who testified, the Court of Appeal can intervene and disturb the findings of fact in the interest of justice. Such defaults throw the door open to the Court of Appeal to re-assess and re-evaluate the evidence before the trial court so long as the issue of credibility of the witnesses does not arise.

The Court of Appeal made it clear in the portions of its judgment I have quoted that those were the reasons why it decided to re-assess, re-evaluate and make its own independent findings of fact after setting aside the findings of the learned trial judge.

Chief Odewale Savage Bada, p.w.2 and Alhaji Aliu Isiba, p.w.3 were the two star witnesses whose credibility was seriously called in question by the trial judge but accepted as beyond reproach by the Court of Appeal.

There is nothing apparent on the face of their evidence which disproves the learned trial judge’s assessment of their credibility. Indeed, I find that the learned trial judge reviewed the evidence given by these two witnesses meticulously and fully. He duly assessed and evaluated them and gave reasons why he rejected the evidence of p. w. 3 and decided to treat the evidence of p.w.2 with caution. Turning first to p.w.2, p.w.2 admitted that he is a signatory to the conveyance Exhibit E4 and a signatory to the certificate certifying the correctness of plan A/9/55 attached to the conveyance Exhibit E3 a copy of Exhibit E4, i.e. as delineated correctly the area of land conveyed to Ojetola Ajao by Exhibit E4. Yet, he gave evidence that the land shown and edged RED on Exhibit E is on Oteniya family land. To destroy that piece of evidence, he ended his testimony by saying that he had not been to Ona Oko Oke which he said is now a proper road called ‘Palm Avenue’ since 1953. If he had not been to Ona Oko Oke since 1953, he is incompetent to testify that it is now a road known as Palm Avenue. Having admitted his signatures on Exhibit E3 and Exhibit E4, pages 2 and 4 of the plan attached his testimony that the land edged RED on Exhibit E is on Oteniya land is unreliable and the learned trial judge was perfectly justified in rejecting that piece of evidence or attaching no weight to it. In addition, the testimony is hearsay and borders on a derogation from grant.

Turning to Alhaji Aliu Isiba, his evidence does not deserve the credence the Court of Appeal gave it. He executed Exhibit A, the conveyance conveying the land in dispute to the plaintiff and described the land in dispute as part of the land covered by the plan attached to Exhibit C and having boundary with Alagbegi family by Palm Avenue. He is head of and attorney to the Oteniya family that has had common boundary with Alago Asalu family called Oana Oko Oke. According to him, Palm Avenue now covers the site of Ona Oko Oke. Their land was the subject matter of a court action that started in the High Court and ended in the Supreme Court Exhibit Cl and a plan of the area was drawn, tendered and tied to the judgment of the High Court and Supreme Court.

In the instant appeal, his testimony in court to wit:-

“There was a survey plan used for the land in the case. It did not cover our entire land. I learnt of this a short while ago, about 2 years ago. I had sued Alago Asalu family and the Ajao family in respect of the encroachment on our land. No one has disturbed our possession of the land.”

does not leave anyone in doubt as to the lack of credibility of this witness. The existence of documentary evidence Exhibits A, C1 and all tendered by the plaintiff has enabled the Court to know the truth. Exhibit F has totally destroyed his credit and made his evidence unreliable. The Oteniya family relied heavily on Exhibit C1 and the plan attached to Exhibit C and this is shown clearly in the 5th and 6th recitals in Exhibit A which read as follows:

5. And whereas a portion of the whole hereditaments granted one Alonla the father of Esikonbi as customary tenant had been a subject matter in suit No. HK/103/60 at the Ikeja High Court and on appeal to the Supreme Court – appeal No.SC.624/65 Oteniya family v. J. T. Hanson on behalf of Esikonbi family the judgment of which was given on the 11th day of January 1967, the plan of the whole hereditaments was in Exhibit where it is shown by Palm Avenue as boundary with Alagbegi family of Isola Township landed property and on another side by Ladipo Street, Mushin.
6. And whereas the judgment of the Supreme Court has confirmed the title of the Oteniya family and that the respondent’s predecessors-in-title forfeited their right and interest as customary tenant.”

I do not know how the Court of Appeal read (and interpreted the composite plan) Exhibit F pleaded and tendered by the plaintiff/respondent. But looking at Exhibit F, I find that the plan shows clearly that the land in dispute is outside Oteniya family land. Exhibit H, the composite plan produced by the defendant’s surveyor, Mr. Alaka, d.w.3 although at variance with Exhibit F in depicting the relative position of Oteniya family’s land and Alago Asalu family’s land also places the land in dispute outside Oteniya family land and within Asalu Alago family land.

The learned trial judge had not, in my opinion, and from the above observations failed to make use of the opportunity of his having seen and heard the witnesses. He has likewise not drawn wrong inferences from the evidence accepted by him. It is the Court of Appeal that has drawn wrong inferences and conclusions. In his review of the evidence of Alhaji Aliu Isiba, p.w.3, the learned trial judge said inter alia:

“This witness also stated that the land as depicted by plan No.CW 678/61 which was used in Exhibits C and C1 did not show the entirety of Oteniya family land, and that he learnt about this a short while ago.

He also added that he has instituted an action against the Alago Asalu family and the Ajao family in respect of the encroachment on their land.

Aliu Isiba stated that he was farming on his family land and that no one disturbed him thereon.

This witness admitted executing Exhibit A in favour of the plaintiff. Paragraph 6 of Exhibit A reads:

‘And whereas a portion of the whole hereditaments granted unto one Alonla the father of one Esinkambi as customary tenant had been a subject matter in suit No.HK/103/60 at the Ikeja High Court and on appeal to the Supreme Court Appeal No. SC/624/65 Oteniyafamily versus J. T. Hanson on behalf of Esinkombi family, the judgment of which was given on the 11th day of January, 1967, the plan of the whole hereditaments was in Exhibit where it is shown by Palm Avenue as boundary with Alagbegi family of Isolo township landed property and on another side by Ladipo Street, Mushin.’

It is obvious from Exhibit that Oteniya family land was rooted in Exhibits ‘C’ and ‘C1’………The plan exhibited in suit No.HK/103/60 is that attached to Exhibit ‘C’ and tendered by the plaintiff.

In the said plan, the “area of the whole boundary was edged RED and although Altigbeji appeared thereon, neither Palm Avenue nor Ladipo Street, was shown thereon.

Contrary to these however, Alii Isiba testified that the plan as exhibited in Exhibit ‘C’ did not in fact show all the land of Oteniya family. Although Exhibit A states that Palm Avenue is the boundary between the Oteniyafamily land and Alagbeji family land, yet in his testimony, Aliu Isiba said Ona Oko Oke now Palm Avenue was in fact the boundary between Oteniya family land and Alago Asalu family land.”

It should be noted that no where in his evidence did Alhaji Aliu Isiba state that he used to farm on the land in dispute. The words carefully chosen are that he used to farm on his family land.

In the consideration of the evidence before him, the learned trial judge said: “Surprisingly in paragraph 25 of the amended statement of claim the plaintiff avers:

‘The plaintiff will at the trial of the action tender in evidence a composite plan No. K 4385 showing the relative position of the parcels of land involved and pleaded in this matter…….”

Indeed, plan N. K 4385 was tendered in these proceedings as Exhibit ‘F’ and therein it shows the land being claimed by the plaintiff as entirely outside that of the said Oteniya family. Although the plaintiff claims the Oteniya family and the Alago Asalu family share a common boundary, yet in the plan attached to Exhibit C1 the vast expanse of land to the north-east thereof was shown as belonging to Alagbeji.

Comparing Exhibit ‘C1’ (i.e. the plan attached) with Exhibit ‘F’, the land in dispute will appear to fall in the land shown to be that of Alagbeji.”

On the issue of Palm Avenue being at Ona Oko Oke and constituting the boundary between Oteniya family and Alago Asalu family, the learned trial judge said:

“Plaintiff witness 3, Alhaji Isiba, claims a footpath which formerly separated the land of Oteniya from that of Alago Asalu once known as Ona Oko Oke is now known as Palm Avenue. He was supported in his evidence on this point by plaintiff’s witness 2 Chief Bada, who also added under cross-examination:

‘I have not been to Ona Oko Oke since 1953’

I have earlier on in this judgment expressed reservations about the reliability of Chief Bada, plaintiffs witness 2. On the other hand, I prefer and believe the evidence of defendant witness 3, Salisu Akanbi Alaka, Licensed Surveyor when under cross-examination by Mr. Adefala, he staled, inter alia, that he prepared the Ajao Layout in 1955 and that he named the footpath or 50 foot road on the layout plan as ‘Palm Avenue’ and as he added

‘I put Palm Avenue instead of the usual ‘proposed road”

I also believe the evidence of Mr. Alaka when he stated

I put ‘Palm Avenue’ alter approval of the layout

It was NOT suggested to defence witness 3. Alaka, that the footpath or 50 foot road named by him as Palm Avenue was formerly Ona Oko Oke. In fact Mr. Alaka testified that Palm Avenue was bush when he was preparing the layout plan and again. I believe him on the point.”

And in view of the state of the evidence, the learned trial judge held and I agree with him:

“I am therefore not satisfied from the totality of the evidence in this case that the land the subject matter of this action falls within the land of the Oteniya family.”

This amounts to a total rejection of the evidence of Chief Bada and Alhaji Aliu Isiba on the point.

The next question is whether the plaintiff discharged the burden of proof imposed on a claimant claiming declaration of title. The defendant did not claim a declaration of title. It was only the plaintiff who made such a claim.

It is trite and very well settled law that in action for a declaration of title to land, the plaintiff must succeed on the strength of his own case and not on the weakness of the defence (see Kodilinye v. Mbanefo Odu 2 WACA. 336. Martin v. Strachan (1744) 5 Term Rep. 107n at 110n.)

It should have been obvious particularly at the stage at which Exhibit F was tendered that the claim for a declaration of title was lost. Exhibit F was fatal to the claim. A claim for declaration of title is not established by admissions as the plaintiff must satisfy the court by credible evidence that he is entitled to the declaration. The court does not grant declaration on admission of parties. It has to be satisfied that the plaintiff owns the title claimed. The evidence of M.A. Kukoyi, p.w. 4 that:

“In both Exhibits F and H, the land in dispute falls outside the land referred to in Exhibit C”

does not bear out the testimony of p.w.2 and p.w.3

Vincent Bello v. Magnus Eweka (1981) 1 SC. 101

Metzger v. Dept. of Health and Social Security (1977) 3 All E. R. 444 at 451.

As the evidence clearly shows that the appellant was in possession the onus was on the plaintiff respondent to show that he has a better right to possession which was disturbed. Unless that onus is discharged the respondent cannot defeat the appellant. See Godwill Egwuh v. Duro Ogunkehin SC.329/66 of 28th February, 1969.

This he failed to do.

The plaintiff cannot succeed by canvassing a title which itself was demonstrated to be defective. (See Aromire & Ors. v. Awoyemi (1972) 1 All N.L.R. 101 at 112. Alhaji Adeshoye v. Siwoniku (1952) 14 WACA. 86 at 87. Lyell v. Kennedy (1882) 20 Ch. D. 484 at 490. Asher v. Whitlock (1865) LR. 1 QB 1 at 5).

The basis on which the Court of Appeal stood to reverse the findings of the trial judge and enter judgment in plaintiff’s favour and grant her declaration of title, damages for trespass and injunction cannot stand critical examination and having collapsed, the appeal is hereby allowed and the judgment of the trial judge dismissing the plaintiff’s claim in its entirety restored.

On the counterclaim, the prior possession of the defendant and his predecessors-in-title was accepted by the High Court and there is ample evidence to justify the findings. But both the High Court and the Court of Appeal were swept off their legal (rack by the suggestion without evidence that the conveyance Exhibits E3 and E4 by which Ojetola Ajao acquired the land from the Asalu Alago family was tainted with fraud. Fraud is a serious crime and in civil matters, the particulars must be pleaded and proved strictly.

What was alleged was the substitution of the plan A/49/53 with plan A/9/55 in the conveyance in Exhibit E4. It was not pleaded that it was done by the defendant or his predecessor, Chief Ajao, in fraud of their vendor Alago Asalu family. There is a written certificate on it signed by Chief Bada now head of the family that the plan correctly represented the land sold and conveyed to Ojetola Ajao. The acreage of 45.70 was unchanged. If anything, the evidence negates any fraud and intention to defraud. The plaintiff totally failed to adduce evidence to establish it. I would observe, however, that if a claim for a declaration of title had been made, more evidence than is on record will need to be adduced. The evidence, however, satisfies the requirement of proof necessary to entitle the appellant to succeed in a claim of trespass. The evidence does not, in my opinion, raise any presumption that the appellant acquired possession by trespass. The contrary is the case.

The agreement in the testimony of Chief Bada, p. w. 2 and Alhaji Isiba, p.w.3 is porous and incapable of misleading the court. In this regard, I gratefully adopt the dictum of Megarry YC. in Metzger v. Dept. of Health and Social Security (1977) 3 All E.R. 444 at 451:

“The court does not make declarations just because the parties to litigation have chosen to admit something. The court declares what it has found to be the law after proper argument not merely after submissions of the parties. There are no declarations without argument, that is quite plain.”

It is of particular interest to note that the respondent bought the land in dispute in August, 1977 and the proceedings in the High Court were instituted on the 2nd of December, 1977. She must have bought a land suit and the learned trial judge was perfectly justified in rejecting her evidence of acts of possession and accepting that of the defendant and his predecessors-in-title. The acceptance of the evidence means she was never in possession but was disturbing the possession of the defendant.

The appellant pleaded that he has been in possession at all material times. At the trial, the testimony of the appellant bears this out. Examined in chief, the material part of the testimony reads:

“Plaintiff was never in possession. I am in possession and the Hausamen are still working after (sic) the land.”

The testimony, under cross examination reads:

“Plaintiff is not in possession. She tried to force herself into possession and I reported to the police and she was advised to go to court. The Hausamen are still there.”

The learned trial judge on the issue of who was in possession said:

“I prefer and believe the evidence of the defendant in this case as to the various acts of possession exercised over the land in dispute both by the defendant himself and his predecessors-in-title.”

The respondent having disturbed the possession of the appellant and destroyed the gate of his fence and the foundation of the building under construction, I find her liable in trespass and to pay damages.

This Court said in Aromire & Ors. v. Awoyemi (1972) 1 All N.L.R. 101 at 112:

“…….it was manifest on the evidence and the pleadings of both parties that at least some two years before the institution of the proceedings the appellants had been in possession of the land. The plaintiff claimed that they were trespassers but assuming that they were indeed, the plaintiff, in order to evict them must show a better title and cannot succeed in doing so by canvassing a title which itself was demonstrated to be defective.”

See also Alhaji Adeshoye v. Siwoniku (1952) 14 WACA. 86 at 87. I will and hereby award the defendant/appellant N500.00 general damages for trespass.

I now come to the relief of injunction first claimed by the appellant not at the trial court but in the Court of Appeal and now before this Court. Learned counsel for the appellant’s contention is that since by virtue of the Court of Appeal’s decision, respondent acquired possession from the appellant, if as appears, the appellant succeeds on the issue of trespass in this appeal, an order of perpetual injunction was necessary to protect appellant’s possession. Learned counsel emphasised that section 22 Supreme Court Act gives this Court wide powers to enable this Court to give judgment or decision as the facts and justice of the case demands. He referred to 3 cases two of which were decisions of this Court where the Court had exercised powers to grant relief which though not claimed, was demanded by the facts and justice of the case. The authorities are:

1. Belmont Finance etc. v. Williams Furniture Ltd. (1979) 1 All ER 118; 119
2. Taiwo Okeowo v. Mrs. Migliori (1979) 11 SC. 138, 197-199, per Idigbe, J.S.C.
3. D.O. Olugbode v. Oyesina (1977) 5 SC.79, 86-88

He submitted and quite rightly, that such an order would save multiplicity of actions which a refusal would set off. Section 22 of the Supreme Court Act 1960 No.12 of 1960 provides, inter alia,

“The Supreme Court may from time to time make any order for determining the real question in controversy in the appeal and…….may make any interim order or may gram any injunction which the court below is authorized to make or grant and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a court of first instance.”

The justice of the case demands that the application for amendment of the counter claim to include a claim for perpetual injunction which was made to the Court of Appeal was granted. It does not prejudice the respondent in any way as the case was brought on the footing that the claim was included in the reliefs soughts. It is hereby granted.

The question now is whether the High Court could have granted the relief although not specifically claimed. I refer to Order 17 Rules 2 and 3 of the High Court of Lagos State (Civil Procedure) Rules, the provisions of which read:

(2) “whenever a statement of claim is filed, the plaintiff may therein alter, modify or extend his claim without any amendment of the endorsement of the writ:

Provided that this rule shall not apply where the writ has been specially endorsed.

Provided further, that the plaintiff may not completely change the cause of action endorsed on the writ without amending the latter.

(3) Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative and it shall not be necessary to ask for general or other reliefs which may always be given as the court or judge in chambers may think just to the same extent as if it had been asked for. And the same rule shall apply to any counterclaim made, or relief claimed by the defendant in his defence.” (Italics mine)

Injunction is a relief necessary to restrain the commission of acts of trespass either continuous acts of trespass, or threatened acts of trespass. The learned trial judge having found the defendant to be in possession and that possession disturbed by the plaintiff who was unable to establish a better title to the land would have been justified under Order 17 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules. To grant the injunction, Section 14 of the High Court Law Cap 52 Vol. 3 Laws of Lagos State enables the court to determine all matters in controversy between the parties completely and finally and ensure the avoidance of multiplicity of legal proceedings concerning those matters. The section reads:

“The High Court in the exercise of the jurisdiction vested in it by this law, shall in every cause or matter, grant, either absolutely or on such terms and conditions as the court thinks fit, all such remedies whatsoever as any of the parties thereto may appear to be entitled in respect of any legal or equitable claim properly brought forward by them in the cause or matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided.” (Italics mine)

A plaintiff or defendant in his counter-claim cannot claim a relief which is inconsistent with the relief specifically claimed. See Cargill v. Bower (1878) 10 Ch. D. 502. I am of the opinion that the court must have jurisdiction to grant the relief that it thinks appropriate to the facts as proved. If a party seeks to raise a new claim which has not been adumbrated in his pleadings in the course of trial, in my opinion, the court should not give relief of that kind at any rate without offering the opposing party an opportunity for an adjournment and giving an opportunity to say whether she has been taken by surprise, or has been prejudiced by the fact that that particular form of relief has not been explicitly claimed earlier. See Belmont Finance Ltd. v. Williams Furniture Ltd. (1979) 1 All 1 E.R. 118 at 131-132

Taiwo Okeowo v. Mrs. Migliori (1979) 11 SC. 138 at 197-199

D. O. Olubode v. Oyesina (1977) 5 SC. 79 at 86-88

This, however, does not detract from the law and the decisions of this Court that the Court will not grant any relief not before it.

The application having been granted enables this Court to proceed to grant the order of injunction to restrain the respondent, her servants or agents from committing further acts of trespass.

The appeal is according allowed. The decision of the Court of Appeal with the order as to costs is hereby set aside and in its stead, the following orders are substituted:

(1) The plaintiffs claim is hereby dismissed

(2) On the defendants counter-claim, the plaintiff is hereby found liable in damages for trespass and the damages is hereby assessed at N500.00. The defendant is also entitled to an order of injunction and it is hereby granted in the following terms:

‘The plaintiff, her servants and agents are hereby restrained from committing further acts of trespass on the plot or land in dispute delineated in the plans in Exhibit A, Exhibit E, Exhibit L and Exhibit N.

(3) The defendant is entitled to costs in the High Court fixed at N500.00 in the Court of Appeal fixed at N300.00 and in this Court fixed at N300.00.

And this shall be the judgment of the High Court.

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SC.57/1984