Dipo Rafiu Ayinde & Anor V. Alhaja Sakiratu Salawu (1989)

LawGlobal-Hub Lead Judgment Report

AGBAJE, J.S.C. 

The plaintiff, Alhaja Sikiratu Salawu, sued the defendants Dipo Rafiu Ayinde and Saidu Mustafa in an Ibadan High Court claiming against them as follows:-

“(a) Declaration that the Plaintiff is entitled to statutory right of occupancy to all that piece and parcel of land situate lying and being at Old Ife Road, Loyola College Area, Ibadan, shown on Plan No.KESH/Y/4036 dated 15th February, 1979 made by Alhaji Y.O.A. Keshinro, Licensed Surveyor.

(b) N10.000.00 General and Special damages for trespass and for destruction by the 1st defendant of cement blocks left on the land by the Plaintiff.

(c) Perpetual injunction restraining the Defendants their servants, agents and privies from further trespass on the land.

IN THE ALTERNATIVE the plaintiffs claim against the 2nd defendant is for the sum of N7,450.00 being special and general damages (suffered by the plaintiff) for loss of bargain resulting from the sale of the afore-said land to the plaintiff by the 2nd defendants family of which the 2nd defendant claims to be the head.”

Pleadings were ordered, filed and delivered. It appears to be common ground in this case that the land in dispute originally belonged to Baba Eko Family of Oke Adu Area Ibadan. By her amended Statement of Claim dated 6th April, 1981, the plaintiff pleaded as follows, as regards her claims:-

“4. The land claimed by the plaintiff is shown on Plan No. KESH/Y/8834 dated 24th October, 1980 made by Keshinro Esq., Licensed Surveyor and the area trespassed upon by the 1st defendant is clearly shown thereon.

5. Sometime on or about January, 1987, accredited representatives of Baba Eko family including the Mogaji and the 2nd defendant sold to the plaintiff under native law and custom a portion of the family land at Loyola area, Ibadan, measuring approximately 540.565 sq. metres shown on plan No. KESH/Y/4036, dated 15th February, 1979, made by Alhaji Keshinro, Licensed Surveyor.
6. Before the aforesaid sale, the plaintiff conducted enquiry as to the genuineness of the land and was assured by the Vendors, including the 2nd defendant that the land had not been previously sold to any person or in any way encumbered.
7. The persons who took part in the afore-mentioned sale are:

(1) Saidu Mustafa

(2) Arasi Awesu

(3) Latifu Lawani

(4) Biliaminu Liasu

(5) Amusa Salawu

(6) Jabaru Suiti

(7) Tiamiyu Sanusi

who are all members of Baba Eko family

8. As an act of ownership over the land in dispute, the plaintiff deposited on the land in dispute 10,000 cement blocks, surveyed the land and also made a building plan of the land which was approved by Ibadan Metropolitan Planning Authority since 1979. The plaintiff will rely on these at the hearing of the case.
9. On or about the month of July, 1980, the 1st defendant trespassed on the land in dispute and bulldozed the blocks of cement stored on the land by the plaintiff in preparation for the erection of a building thereon.
10. Some of the cement blocks not damaged were used in erecting a structure on the land in dispute by the 1st defendant a structure not to the taste and liking of the plaintiff.

Both defendants filed a joint statement of defence and in it they pleaded as follows:-

“2. The defendants deny paragraphs 1, 4, 5, 6, 8, 18 of the Statement of Claim and puts plaintiff to strict proof of the averments.

3. In reply to paragraph 7 of the Statement of Claim, the 1stand 2nd defendants whilst admitting that the persons mentioned in the said paragraph are members of Baba Eko family, but deny that they (1st and 2nd defendants) took part in the said sale and puts plaintiff to strict proof of the averments.
4. In further reply to the said paragraph avers that the seven persons mentioned therein do not represent the eight branches which constitute Baba Eko Family of Oke Adu and pleads particularly that Saidu Mustafa or Second Defendant did not take part in the sale referred to by the plaintiff.
5. The Second defendant avers that he is the Head of Baba Eko family and the oldest member of the family and the most senior of the persons mentioned in paragraph 7 of the Statement of Claim.

The said Eight Branches are as follows:-

1. Aminatu Branch
2. Sadaru Branch
3. Afisatu Branch
4. Afisatu Branch
5. Rukayatu Branch
6. Abadatu Branch
7. Saliu Branch
8. Asani Branch
9. The Second Defendant denies paragraphs 10, 11, 12 of the Statement of Claim and puts plaintiff to strict proof of the said averments and aver that he never at any time bargain to sell any land to the plaintiff on or about January, 1977 and Latifu Lawal or any other person did not hand over any sale agreement to him.
10. The First defendant deny paragraphs 13, 14, 15 of the Statement of Claim and aver that pursuant to a sale under native law and custom by Head and principal members of Baba Eko family he was put in possession of the land upon which he has built in the presence of witnesses and on presentation of purchase price and traditional gifts. This transaction was witnessed in writing and first defendant will rely on the said document. First defendant obtained an approved building plan from the appropriate authority and complied strictly with the instruction of the building authority. No one disturbed him when he commenced building.

The case proceeded to trial before Ademakinwa, J., who after listening to the evidence for both sides found as follows in his judgment dated 8th September, 1981, in the case:-

First: It is common ground among the parties to this action that the land now in dispute originally belonged to the Baba Eko family. Both the plaintiff and the 1st defendant have also claimed to have brought (sic) the land from the Baba Eko family under native law and custom.”

Second: “In the present case, the plaintiff has adduced evidence, which I believe, that the seven persons mentioned in paragraph 7 of her Amended Statement of Claim, as the accredited representatives of the Baba Eko family, with the 2nd defendant acting as the head of the family, had sold the land in dispute to her under native law and custom.”

Third: “It was, in fact, common ground between the parties that the 2nd defendant was accepted by the generality of the members of the family as the acting head of the family.

Exhibit ‘J’ the purchase receipt dated the 10th of August 1977 and tendered by the 1st defendant in support of his own evidence, described the 2nd defendant as the “Head of Baba Eko Family.” I therefore, find as a fact that the 2nd defendent was accepted by the generality of the family as the acting Head of the family.”

Fourth: “The 2nd defendant has denied having participated in the sale to the plaintiff. Having had the opportunity of watching him testify in the witness box, I must say that he did not impress me as a witness of truth. I am not unmindful of the fact that there were some minor discrepancies in the evidence of the 4th, 5th and 6th witnesses for the plaintiff. For example, the evidence of these witnesses differed as to whether one of them first went to demand the purchase agreement alleged to have been executed in favour of the plaintiff or whether all of them went together. But, for the most part and on the important issues, he witnesses were in my opinion, consistent, truthful and reliable. I have no difficulty whatsoever in preferring their evidence to that of the two defendants. I therefore find, as a fact, that the 2nd defendant participated in and consented to the sale to the plaintiff. That being the case, I also hold that the sale to the plaintiff was valid on the principle of the decision in Lagos Town Council v Soule.”

Fifth: “I am unable to attach any weight to Exhibit J for the simple reason that the due execution of this document has not been proved before me. Furthermore, none of the other two persons alleged to be the 1st defendant’s vendors, had been called to say what role they have played in this matter. I am inclined to believe that Exhibit ‘J’ merely reflected a transaction between the 2nd Defendant acting alone and the 1st defendant.

Be that as it may, the sale to the 1st defendant by the 2nd Defendant alone (who as I have earlier held was accepted as the head of the family) would, in the circumstances, be voidable and would remain effective until properly avoided or set aside. If the transaction had been earlier in time to the sale to the plaintiff, it would, no doubt, take precedence over the subsequent sale. The crucial issue to determine then is which of the two sale transactions was earlier in time”

Sixth: “I would accept the evidence of the plaintiff and her witnesses that the land was sold to her in January, 1977, and hold, as a fact, on the preponderance of evidence, that the sale to the plaintiff preceded that of the 1st defendant. It follows, therefore, that, at the time the 2nd defendant, on behalf of the Baba Eko family, purported to sell the land to the 1st defendant, the family no longer had any interest in the land in dispute. The maxim “Nemo dat quod non habet’ would apply in the circumstances and the purported sale by the 2nd defendant to the 1st defendant would accordingly be void and of no effect.”

Seventh: “On the claim for trespass, there is evidence that the 1st defendant has entered into the land in dispute and erected a building thereon. The presumption of law is that the person having a right to land is the one in possession thereof.

Eighth: “There is evidence, which I believe, that the cement blocks were stored on the land in dispute and that the 1st defendant, in furtherance of his act of trespass, damaged some of these cement blocks and used the undamaged ones for erecting his own building. There is also evidence that the 2nd defendant went onto the land, which was already in the Plaintiffs possession, to hand it over to the 1st Defendant. He is, therefore, equally liable in trespass.”

The totality of the evidence of 7th P. W. Alhaji Amusa Ajigbotosho was that he moulded 10,000 cement blocks for the plaintiff on the land in dispute during a period of 11 weeks and stored them there. This was in 1979.

On the point of possession of the land in dispute by the plaintiff the evidence which the learned trial Judge took cognisance of appears in the following passage from his judgment namely:-

“Alhaji Yekini Olayiwola Keshinro, a licensed surveyor, testified as the 3rd P.W. and confirmed having carried out a survey of the land in dispute on two occasions at the instance of the plaintiff. The first survey was carried out in 1979 and Exhibit ‘D’ is the survey plan produced from the exercise. The second survey was carried out in 1980 after the commencement of this action and Exhibit ‘C’ is the survey plan produced as a result. The area claimed by the plaintiff is verged ‘red’ in Exhibit ‘C’. It is erected by the 1st defendant and which has given rise to the present action is verged ‘brown’ in Exhibit ‘C’. Both Exhibits ‘C’ and ‘D’ cover the same area of land hut Exhibit ‘C’ which is later in time, reflects the latest features on the land.”

Both survey plans were pleaded in paragraphs 4 and 5 of the plaintiffs amended Statement of Claim.

In the end, the learned trial Judge found for the plaintiff as follows:-

“In the result, the plaintiffs claim succeeds and she is hereby granted the following:-

(1) Declaration of title to right of occupancy to “the land situate at Old Ife Road, Loyola College Area, Ibadan, and more particularly delineated on Plan No. KESH/Y/4036 dated 15th February, 1979, which was admitted as Exhibit ‘D’ in these proceedings.

(2) The sum of N14,500.00 special damages against the 1st defendant in respect of the plaintiffs cement blocks destroyed by the 1st Defendant.

(3) The sum of N250.00 general damages against both defendants for trespass committed on the land by both defendants, their servants, agents and privies from further acts of trespass on the land in dispute.”

The defendants being dissatisfied with the entire decision appealed against it to the Court of Appeal, Ibadan Division. Their appeal succeeded in part and failed in part.

In the lead judgment of that Court by Onu, J.C.A. in which Omo and Sulu-Gambari, JJ.C.A., concurred, it was held as follows:-

“There was therefore no valid sale of the land in dispute to the respondent under native law and custom, there being no proof in the case in hand that 2nd appellant was Mogaji or head of the Baba Eko family at the time of sale and since Jakiru Iyanda who was shown to be Mogaji or head of that family at the time neither participated in the sale nor was called to testify, the respondent had not discharged the burden of proving her case and so no absolute title to the piece of land in dispute passed to her under native law and custom, a fortiori, the claim for injunction being an ancillary relief (respondent in the circumstance having no interest in the land in dispute to protect) ought to have been dismissed – see George Ayeni Oluwi v Daniel Eniola (1967) N.M.L.R. 339 at 340…….

“Grounds 5, 6, 7 and 9 overlap grounds 1, 2, 8, 13, 14, 15 and 16 in so far as they relate to the invalid sale and in that respect they too succeed. However, they touch on the issue of trespass. I shall come to that point shortly in this judgment. Suffice it to say that the sale not having been conducted in the presence of witnesses was also null and void – see Cole v. Folami.”

Having held that the sale to the plaintiff was null and void, the learned Justice of Appeal in another breath proceeded to hold as follows:-

“I agree with learned Counsel for respondent (the plaintiff) that she pleaded that the sale of the land in dispute to her took place in January, 1977 (see paragraph 5 of the amended statement of claim). I am satisfied that in Exhibit A. 2nd appellant deposed to the fact that no sale of Baba Eko family land took place after March. 1977. The respondent is therefore right to use the defence evidence to support her case that sale of the land in dispute to her took place in January, 1977. Moreover, the evidence of P.W.4, P.W.5 and P.W.6 which supported respondent’s testimony estimated the period of sale from the time they were testifying on 27th May, 1981, to be “5 years”, “more than four years and “about 5 1/2 years ago, respectively, January, 1977, in my view cannot be said to have shot too wide. And since the sale of the land in dispute to 1st appellant was said to have taken place in August. 1977, there was therefore no sale to him by the Baba Eko family. But for the invalidity of the sale to the respondent/reasons herein before given, that sale was prior and so 1st appellant acquired no title to the land. Alternatively, any purported sale of the land to 1st appellant in August, 1977 is null and void.” (words in brackets mine).

The implication of the finding of the Court of Appeal to the effect that any purported sale of the land in dispute to the 1st defendant in August, 1977 after the sale to the plaintiff in January, 1977, is null and void is that the earlier sale to the plaintiff in January is valid.

Then the learned Justice of Appeal said:-

“The third issue which is synonymous with grounds 10, 12 and 17 (I do not deem it necessary to set them all down here) attacks the treatment by the trial court of Exhibit J, the purchase receipt allegedly given to the 1st appellant by the Baba Eko family. He submitted that while the learned trial Judge held that-

“I am unable to attach any weight to Exhibit J. for the simple reason that the due execution of this document has not been proved before me…….”

yet he relied on the same Exhibit J to hold as follows:-

“Exhibit J, the purported receipt dated the 10th of August, 1977, and tendered by the 1st defendant in support of his own evidence, described the 2nd defendant as the “Head of Baba Eko family.” I therefore, find as a fact that the 2nd Defendant was accepted by the generality of the family as the acting Head of the family”

In view of my earlier conclusions above, I agree with learned Counsel for appellant that the learned trial Judge ought not to have relied on Exhibit J after earlier refusing to attach any weight to it. He was in effect thereby accepting it for certain limited put poses favourable to respondent and rejecting if for other legitimate purposes – see Sodimu v. Nigeria Ports Authority (1975) 4 S.C.15 at 23 on the point of evidential value and admissibility of Exh.J.

On the issue of trespass the learned Justice of Appeal said:-

“Now, in Christopher Okofo v Eunice Uzoka (1979) S.C.77 at 87, the Supreme Court stated:

“It is the law and this Court has so held times without number that trespass to the land is actionable at the suit of the person in possession of the land. The slightest possession in the plaintiff enables him to maintain trespass if the defendant cannot show a better title.”

The act of 1st appellant in going upon the land in respondent’s possession would therefore have constituted an act of trespass. The question however is, was the trial court right on the totality of evidence adduced, inclusive of documentary evidence tendered before it to have found trespass by 1st appellant and to have made the consequential orders of special damages and general damages complained of by the appellant Also, did the learned trial Judge misdirect himself in law…………….

A similar consideration arose in Kuti v. Balogun (1978) J.S.C. 53, where the plaintiff therein claimed damages for negligent driving from 1st defendant and vicarious liability by 2nd defendant jointly and severally. The trial Chief Magistrate found for plaintiff and 2nd defendant appealed to the High Court which dismissed his appeal. On a further appeal to the Supreme Court, the latter allowing the appeal, observed at page 59, thus:

“It was the duty of the learned Chief Magistrate to consider all the evidence placed before him, including Exhibits and F, before he could come to a decision as to whether o not the appellant has rebutted the presumption of vicarious liability. It is only after such consideration that he, as the trial court, could conclude whether or not the exhibits were helpful in the defence. This however, he failed to do.”

Now an answer to the first question.

The trial court having rightly in my view, held that respondent was in possession of the land in dispute when 1st appellant came upon it, the act of trespass by him was clearly established on the preponderance of evidence.”

In the end, the Court of Appeal held thus:-

“This appeal succeeds on all claims before the court below except for trespass to the land in dispute for which the award of N250 general damages alone is hereby upheld and the appeal is dismissed in that regard.”

Both the plaintiff and the defendants were dissatisfied with the judgment of the Court of Appeal. By a notice of appeal dated 16th July, 1985, the defendants appealed against the decision of the Court of Appeal against them on the issue of trespass on grounds of law alone and on grounds of appeal involving (i) questions of mixed law and fact and (ii) questions of fact alone. The plaintiff for her part by a notice of appeal, dated 5th August, 1985, purported to appeal against that part of the decision of the Court of Appeal dismissing her claims for title and an injunction. She then in this court filed an application for the following reliefs:-

“(i) pursuant to Order 2 Rule 31(1) directing a departure from the requirements of Order 2 Rule 31(2) on the ground that the full record of the proceedings and judgment in the Court below have already been dispatched to this Honourable Court;

(ii) pursuant to Section 213(3) of the Constitution of the Federal Republic of Nigeria granting leave to the Appellant to argue all the grounds of appeal in so far as they involve questions of mixed law and fact;

(iii) pursuant to Order 8 Rule 4 of the Supreme Court Rules amending the Notice of Appeal by adding thereto the Additional Ground of Appeal set forth in the schedule to this Motion on Notice; and

(iv) for leave of Court to adduce additional new evidence that is to say Exhibit” A” and “B” attached to this motion paper in relation to Mogajiship of Jakiru Iyanda and the Court’s restraint on him from participating in sale of family land as cited in address of Counsel in the High Court as estoppel against the Defendants from so acting.”

The application was taken in Chambers on 12/6/86 whereupon, it was ordered as follows:-

“(1) that this Application be refused;

(2) that the purported appeal being incompetent be struck out; and

(3) that N300 (three hundred naira) costs be awarded in favour of the Respondents.”

So, the purported appeal of the Plaintiff has been struck out as far back as 12th June, 1986. The plaintiff has done nothing since then to revive her appeal with the result that the only appeal now pending before us is that of the defendants.

Briefs of arguments were filed on both sides, on the appeal of the defendants. For reasons hereinafter appearing I have to set down the grounds of appeal before us. They are:-

“1. Having found that it was not established that the plaintiff/respondent had a better title than the 1st defendant appellant who was in possession of the land in dispute at the time when these proceedings were commenced and who also claimed to have bought the land from Baba Eko family, the learned Justices of the Court of Appeal erred in law when they held that the trial Court rightly entered judgment for the plaintiff/respondent on her claim for trespass.

2. The learned Justices of the Court of Appeal erred in law in holding as follows:-

“The trial Court having rightly, in my view, held that respondent was in possession of the land in dispute when 1st appellant came upon it, the act of trespass by him was evidence. A fortiori, the award of N250 general damages for trespass is right and is accordingly upheld.”

3. The learned Justices of the Court of Appeal erred in law and on the facts when they in their lead judgment, held as follows:-

“I am satisfied that in Exhibit “A”, 2nd appellant deposed to the fact that no sale of Baba Eko family land took place after March, 1977. The respondent is therefore right to use the defence evidence to support her case that sale of the land in dispute to her took place in January, 1977.”

4. The learned Justices of the Court of Appeal erred in law and on the facts when they in their lead judgment, held as follows:-

“Moreover, the evidence of P.W.4, P. W.5 and P.W.6which supported respondent’s testimony estimated the period of sale from the time they were testifying on 27th May, 1981 to be “5 years”,

“more than four years” and “about 5 1/2 years, ago” respectively. January 1977, in my view, cannot be said to have shot too wide. And since the sale of the land in dispute to 1st appellant was said to have taken place in August, 1977, there was therefore no sale to him by the Baba Eko family.”

5. The learned Justices of the Court of Appeal erred in law and on the facts when they, in their lead judgment, held as follows:-

“That the respondent was in possession of the land in dispute as found by the trial Court would therefore not be in doubt.”

According to the defendants the issues arising for determination in this appeal are as follows:-

“1. Whether the plaintiff/respondent has brought forward evidence to establish that it was in January, 1977 that the alleged sale to her took place so as to show that she was in prior possession of the land in dispute.

2. Whether on the pleadings and the evidence led the plaintiff/respondent could be said have proved her claim for trespass.
3. Whether the Court of Appeal was entitled to hold that the act of trespass complained of by the plaintiff/respondent was clearly established despite

(a) Its finding that the plaintiff/respondent did not prove her alleged title to the land in dispute.

(b) Its finding that the issue of cement blocks which it resolved against the plaintiff/respondent was inextricably interwoven with the issue of trespass.

(c) The fact that the 1st defendant/appellant was undisputedly in possession of the land in dispute at the time these proceedings were commenced.

4. Whether Exhibit A” was correctly regarded as legal evidence in this case and whether Exhibit “A” could be said to have supported the plaintiff/respondent’s case that the sale of the land in dispute to her took place in January, 1977.
5. Whether the 2nd defendant/appellant was rightly held liable for trespass when the trespass alleged in the plaintiff/respondent’s pleadings was against the 1st defendant/appellant only.”

I shall take issue one first, i.e., whether the plaintiff has brought forward evidence that the land in dispute was sold to her in January, 1977 by Baba Eko family its undisputed original owners. This if established would give the plaintiff title to the land as well as the right to its possession as from January, 1977. So in a contest between her and the 1st defendant who claimed to have bought the same land from the same family subsequently in August, 1977 as to who was in possession of the land when each of them asserted his or her possession thereto, the claim of the plaintiff would prevail over that of the defendant.

The relevant evidence for the plaintiff on the issue of title to the land in dispute is as follows:-

The plaintiff herself said in this regard:-

“The land originally belonged to the Baba Eko family. But now it belongs to me. 1 bought the land from the Baba Eko family. The amount charged by the Baba Eko family for the land was N1,200.00 I paid this purchase price in two instalments of N600 each. After I paid the balance of purchase price of the land the family accompanied me to the land and put me in possession. The members of the family who participated in the sale transaction and the handing over of the land to me are: Latifu Lawani, Biliaminu Liasu, Arasi Awesu, Jabaru Suity Tiamiyu Sanusi, and Seidu Mustafa.”

On the same point 4th P. W. said:-

“I am a member of the Baba Eko family. The land now belongs to the plaintiff……………..

After the plaintiff had paid the purchase price of N1,200, the whole members of the family took her to the land in dispute and the plaintiff was put in possession. I was present when the plaintiff was put in possession. I was present when the plaintiff was put in possession of the land. The sale transaction took place about years ago. Since the land had been handed over to the plaintiff the Baba Eko family had ceased to have anything to do with the land. There has not been anything between the Baba Eko family and the Plaintiff since the land was sold to her. The head of the Baba Eko family at the time the land was sold to the plaintiff was Jakiru lyanda. But all the members of the family selected Seidu Mustafa to represent the family in the sale transaction to the plaintiff.”

5th P.W. said in this regard:-

“I know the plaintiff in this case. I also know the 2nd defendant. We are first cousins. I know the land in dispute. It is at Loyola. The land now belongs to the plaintiff….

The family agreed to sell the land to the plaintiff for N1.200.

The plaintiff came back on the third day. All the members of the family again met at the 2nd defendant’s house. The plaintiff there and then paid N600 to the 2nd defendant and then went away. About five months later she came back and paid the balance of N600. She again went away and shortly afterwards came back to ask us to take her to the land in dispute. Led by the 2nd defendant we all accompanied the plaintiff to the land and handed it over to her.”

As regards the sale the 6th P.W. said:”

I know the plaintiff. I know the 1st defendant. I also know the 2nd defendant. Seidu Mustafa. The 2nd defendant and I are from the same family. I know the land in dispute. It is at Loyola off Old Ife road, Ibadan, The Baba Eko family originally owned the land. It was later sold to the Plaintiff. The land was sold to the plaintiff about 5 1/2 years ago…………….

She was asked to pay N1,600 but she pleaded to be allowed to pay N1,200. We agreed that she should pay N1,200, she then went away. The plaintiff came back on the third day and paid the sum of N600 to the 2nd defendant. About five months later, she paid the balance of N600. After she had paid the balance, the 2nd defendant led other members of the Baba Eko family to go and hand over the land to the plaintiff. After the land was handed over to the plaintiff, she gave us N40 so that we could pray for her on the land.”

It is to be noted that the plaintiff by paragraph 3 of her statement of claim pleaded a sale under native law and custom to her by the accredited representative of Baba Eko family including the Mogaji and the 2nd defendant. She did not plead the Mogaji by name.

By paragraph 5 of their statement of defence the defendants averred in essence that at all times material to this case the 2nd defendant was the head of Baba Eko family. Since it was the plaintiffs case that 2nd defendant in fact took part in the sale of the land in dispute to her and because of the adversary system operating in civil proceedings in our courts one would have thought that the point whether the mogaji or head of the family participated in the sale of the land in dispute to the plaintiff depended for its correct resolution on whether or not the 2nd defendant took part in that sale. I have earlier on in this judgment referred to the findings of the trial Court to the effect that the plaintiff, on the evidence I have set down, had proved sale under native law and custom of the land in dispute to her. I have also shown above that the Court of Appeal, Ibadan Division reversed this finding because according to it, (1) the Mogaji or head of Baba Eko Family did not participate in the sale and (2) there was no evidence that there were witnesses to the handing over of the land in dispute to the plaintiff.

The trial Judge held and this was amply supported by the evidence before him that the 2nd defendant took part in the sale of the land in dispute to the plaintiff. And because of what I have said above it was not open to the Court of Appeal to hold in the circumstances of this case that the Mogaji or head of Baba Eko family did not take part in the sale of the land in dispute to the plaintiff. It is equally clear that the plaintiff called some of those who witnessed the handing over of the land in dispute to her. So it cannot be correct as the Court of Appeal found that the plaintiff had not proved that the handing over of the land in dispute to her was in the presence of witnesses. So in my view there was sufficient evidence of sale of the land in dispute to the plaintiff in January, 1977 and the trial court was correct in so finding.

What I have just said would have been enough to dispose of this appeal in favour of the plaintiff against the defendant, if only on the issue said to arise for determination in this appeal by the defendants I can set aside the decision of the Court of Appeal that the sale upon which the plaintiff relied was void, in the absence of an appeal against that decision. I am satisfied that I cannot. And since, as I have shown earlier on in this judgment, the purported appeal of the plaintiff against that part of the decision of the Court of Appeal has been struck out, without plaintiffs counsel taking any step to revive it this appeal has to be decided on the basis, unfortunately wrongly in my view, that the sale of the land in dispute upon which the plaintiff relied was void ab initio.

It appears that the Court of Appeal was ambivalent on its view about the sale of the land in dispute to the plaintiff. For that court having held that the sale was void ab initio, relying on Erika v Ekpendu 4 F.S.C. 79, then turned round to say, relying on the very same sale, that the sale of land in August. 1977, upon which the 1st defendant relied was null and void because of the earlier sale of the land to the plaintiff in January, 1977. If according to the Court of Appeal, the sale to the plaintiff was void ab initio, it follows that the sale never existed. If so it can never stand in the way of the 1st defendant acquiring an otherwise valid title to the land in dispute. The defendants for their part have not appealed against this portion of the judgment of the Court of Appeal either.

The position then in this appeal is this:- the issue of trespass must be resolved on the basis that neither the plaintiff nor the 1st defendant has valid title to the land in dispute. Issues 2, 3 and 5 in the defendant’s brief of arguments relate to this. Before I consider them I would like to treat issue which has to do with the admissibility of Exh. A, an affidavit sworn by the 2nd defendant in an interlocutory proceeding in this case and, if admissible, its evidential value.

By paragraph 15 of her amended statement of claim the plaintiff pleaded Exh. A as a counter-affidavit sworn by the 2nd defendant in an interlocutory proceeding in this case for an interlocutory injunction set in motion by the plaintiff. Exh. A was put in evidence for the plaintiff by P.W. 1, Alhaji Muraina Adenuga Akande, Senior Registrar, High Court, Ibadan, without any objection to its admissibility from the defence. That being so the document becomes admissible for all legitimate purposes, since it is not contended by counsel for the defendants that Exh. A is not admissible in any event. When the 2nd defendant was testifying in the witness box in this case

on 26/5/81 he was cross-examined about Exh. A and he answered thus:-

“I swore to an affidavit during the early part of these proceedings. It is true that I averred in the affidavit that before the 30th of March, 1977, all the members of our family used to join in the sale of land to purchasers, and that since that date we have not made any further sale. This averment is set out in the affidavit I swore to on the 5th of December, 1980, and already admitted as Exhibit ‘A’

The relevant part of Exh. A is as follows:-

“4. In reply to paragraphs 11 and 12 all members join in selling our family land before 30th March, 1977 and since then we have not been selling.”

If it was intended by counsel to show that the 2nd defendant gave evidence in the witness box which was inconsistent with what he deposed to in Exh. A one must necessarily bear in mind the provisions of section 198 of the Evidence Act which say:-

“A witness may be cross-examined as to the previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

It appears in the case in hand that the previous inconsistent statement was proved and put in evidence before the attention of 2nd defendant was drawn to the circumstances in which he made it and to the parts of the statement which were to be used for the purpose of contradicting him. But as I have said earlier in this judgment since Exh. A was admitted in evidence without objection and it was not inadmissible in any event but only admissible subject to condition, Exh. A is admissible for all legitimate purposes. See Sodimu v. N. P.A. (1975) 4 S.C. 15.

In so far as Exh. A was used for the purpose of contradicting the evidence now given by the 2nd defendant in this case, Exh. A is not proof of facts contained in it, its purpose being only to impugn the testimony of 2nd defendant See Commissioner of Police v. Riegels 4 N.L.R. 103; R. v. Akanni (1960) 5 F.S.C. 120; R. v. Ukpong (1961) 1 All N.L.R. 25; Owonyin v. Omotosho (1961) 1 All N.L.R. 304 at 308 and R. v. Golder & Co. (1960) 3 All E.R. 457 45 Cr.App. R 5

In Alade v. Aborishade (1960) 5 F.S.C. 167 this court said per Abbott, 8F.J. at 172-3:-

“True it is that,-in the last instance in particular, the learned Judge, in accepting as evidence before him the evidence given in the 1951 case used that evidence in a manner adverse to the respondent, in whose favour he ultimately gave judgment, but that does not alter the legal position which this Court has stated on numerous occasions which is that evidence given in a previous case can never be accepted as evidence by the Court trying a later case except where section 34(1) of the Evidence Ordinance applies. The evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but it is of no higher value than that.”

The decisions in Owonyin v Omotosho (supra); Ariku & Anor. v Ajuwogbo (1962) 1 All N.L.R. 629 at 631-2 are along the same line, Section 34(1) of the Evidence Act says:-

“Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in .the circumstances of the case, the court considers unreasonable: Provided-

(a) that the proceeding was between the same parties or their representatives interest;

(b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and

(c) that the questions in issue were substantially the same in the first as in the second proceeding.” (italics mine).

At all times material to this case, the deponent in Exh. A, 2nd defendant was not dead, nor could not be found, nor incapable of giving evidence nor kept out of the way by adverse party. Nor could it be said that his presence could not be obtained without an amount of delay or expense which was unreasonable. In short, the conditions for the admissibility of Exh. A as truth of the facts it states, under section 34(1) of the Evidence Act in a later stage of the same judicial proceeding are absent here. So I agree with counsel for the defendants that Exh. A is not proof of what it says.

In my judgment therefore the Court of Appeal was wrong in using the contents of Exh. A as evidence before it.

Even if I had “held that Exh. “A” was legal evidence, which I don’t, I do not see how its contents which came into existence in 1980 could be used to construe an earlier document Exh. J made in 1977 upon which the 1st defendant relied. Again in Exh. A the 2nd defendant did not say he or his family sold land to the plaintiff. So I do not see how it assists the plaintiff’s case. It should be noted that at the time 2nd defendant swore Exh. “A”, 2nd defendant’s family, Baba Eko family, had, according to the 1st defendant, sold the land in dispute to him. So any statement in Exh. “A” cannot bind the 1st defendant. I will now go on to consider the issue of trespass, bearing in mind what I have said earlier on in this judgment that neither the plaintiff nor the 1st defendant has title to the land in dispute. The decision of this court in Oluwi v Eniola (1967) N.M.L. R. 339 shows clearly that the fact that the plaintiff fails in her claim for title to land does not mean that her claim for damages for trespass to the same land must necessarily fail. And in Awoonor Renner v Anan 2 W.A.C.A. 28 the Old West African Court of Appeal said as regards a claim for damage; for trespass to land:-

“A trespass to land is an entry upon land or any direct and immediate interference with the possession of land. The comprehensive way of describing a trespass is to say that the defendant broke and entered the plaintiffs’ close and did damage, and it follows that in order to maintain an action for trespass the plaintiff must have a present possessory title – an owner of land who is legally entitled to possession not being competent to maintain an action for trespass before entry (Wallis v. Hands (1893) 2 Ch.75). Where indeed both parties are in a field claiming possession the possession being disputed, trespass will be at the suit of that one who can show that the title is in him.”

It is also the law that where a plaintiff founds his claim for damages for trespass to land on present possessory title alone his possession of the land in dispute is good against the whole world except the true owners of the land or anyone claiming through them. (See (1) Pius Amakor v. Benedict Obiefuna (1974) 3 S.C. 67 at 75, 76; (2) Shell B. P. Ltd. v. Abedi (1974) 1 All N.L.R. 1).

As I have said the 1st defendant has no title at all to the land in dispute. So in my judgment the Court of Appeal correctly directed itself when it held as per the lead judgment of Onu, J.C.A.

“Now, in Christopher Okolo v. Eunice Uzoka (1979) S.C. 77 at 87 the Supreme Court stated:

“It is the law and this Court has so held times without number that trespass to the land is actionable at the suit of the person in possession of the land. The slightest possession in the plaintiff enables him to maintain trespass if the defendant cannot show a better title.”

In this regard too I refer to the following passage in the opinion of the Privy Council in the case of Wuta-Ofei v. Danquah (1961) 3 All E.R.596 at 600 per Lord Guest:-

“Their Lordships do not consider that, in order to establish possession, it is necessary for a claimant to take some active step in relation to the land such as enclosing the land or cultivating it. The type of conduct which indicates possession must vary with the type of land. In the case of vacant and unenclosed land which is not being cultivated, there is little which can be done on the land to indicate possession. Moreover, the possession which the respondent seeks to maintain is against the appellant who never had any title to the land. In these circumstances, the slightest amount of possession would be sufficient. In Bristow v. Cormican (3), Lord HATHERLEY said:

“There can be no doubt whatever that mere possession is sufficient, against a person invading that possession without himself having any title whatever – as a mere stranger; that is to say, it is sufficient as against a wrongdoer. The slightest amount of possession would be sufficient to entitle the person who is so in possession, or claims under those who have been or are in such possession, to recover as against a mere trespasser.”

The question now is whether having regard to the pleadings in this case and the totality of the printed evidence it can be correctly said that the plaintiff was in possession of the land in dispute at the time of the trespass she complained of.

The trespass the plaintiff complained of was pleaded in paragraph 13 of her amended statement of claim thus:-

“13. On or about the month of July, 1980, the 1st defendant trespassed on the land in dispute and bull-dozed the blocks of cement stored on the land by the plaintiff in preparation for the erection of a building thereon.”

The acts of possession pleaded by the plaintiff will be found at paragraph 8 of her amended statement of claim-

“8. As an act of ownership over the land in dispute the Plaintiff deposited on the land in dispute 10,000 cement blocks, surveyed the land and also made a building plan of the land which was approved by Ibadan Metropolitan Planning Authority since 1979. The Plaintiff will rely on these at the hearing of the case.”

I have shown earlier on in this judgment that the plaintiff caused the land in dispute to be surveyed in February, 1979 and following this survey pillars were buried at the four edges of the land. Exh. D is the survey plan of the land. 1st D.W. Mr. William Gaseayre, himself a licensed surveyor confirmed this survey.

The learned trial Judge on the evidence of the appellant and 7th P.W., Amusa Agigbeloshu, a general contractor who supported the evidence of the plaintiff that she commissioned him to mould 10,000 cement blocks on the land in dispute in 1979, held that the plaintiff had 10,000 cement blocks on the and in dispute at the time of the trespass complained of in 1980. But there is the following damning opinion of the Court of Appeal about this evidence for the plaintiff, to which counsel for the defendants has called our attention:-

“The respondent was emphatic in her evidence that she commissioned P.W.7 to mould the blocks for her after P.W.8 delivered Exhibits E – E2 (approved on 3/9/79 and delivered to her on 4/9/79). Of this, she said “After the building plan (Exhibits E – E2) had been handed over to me, I arranged for cement blocks to be moulded for me on the land.” However, the evidence of P.W.7 went across the grain when he testified that he commenced moulding the blocks on 18/3/79 ending eleven weeks later i.e. in June, 1979 (see Exhibits F and F1) This depicts that the blocks were moulded before (Exhibits E – E2) were approved and received by respondent, which was not the case put up by her. It is in that circumstance that I agree with learned counsel for appellant that Exhibit F is a ruse and goes to the root of the respondent’s claim in the special damages of N4,500 to disqualify it as not having been made out.” (Italics mine).

Counsel for the defendants submitted, and I dare say with justification that the Court of Appeal must have held that the evidence for the plaintiff as to blocks being on the land in dispute was unreliable and accordingly must be rejected. I am inclined to agree with this submission of counsel for the defendants.

If we take away the evidence of cement blocks on the land in dispute, we still have the evidence that the plaintiff caused the land in dispute to be surveyed and had survey pillars erected at its edges. In Wuta-Ofei v. Danquah (supra) the Privy Council held that erection of survey pillars on the piece of land in dispute there was a definite act indicating possession of the land upon which an action for damages for trespass to the land can be founded by the plaintiff who erected the pillars.

For the above reasons I am satisfied that the Court of Appeal was right in holding that the trial court rightly found that the plaintiff was in possession of the land in dispute when the 1st defendant came upon the land. This conclusion of the Court of Appeal is valid because of what I have hitherto said, notwithstanding its rejection of the evidence as to cement blocks being on the land.

The trespass pleaded and found proved by the Court of Appeal was against the 1st defendant. There was no allegation of trespass against the 2nd defendant. So judgment for trespass cannot be validly entered against him in trespass. I do not understand the judgment of the Court of Appeal as saying he was liable in trespass. This disposes of issue 5 in this appeal and indeed the whole of the issues raised in this appeal.

In the result, the defendants’ appeal is dismissed by me with costs assessed at N500.00 to the plaintiff.

ESO, J.S.C.: I have had the privilege of a preview of the judgment just read by my learned brother, Agbaje, J.S.C. The judgment with respect is full and covers all the points raised and I have decided to add nothing further to it. I agree with the reasoning, the points made and all the orders contained therein.

UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother, Agbaje, J.S.C. I agree that the appeal has no merit and that it should be dismissed. Accordingly, the appeal is hereby dismissed with N500.00 costs to the respondent.

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SC.45/1986