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IN THE SUPREME COURT OF NIGERIA
(2004) 12 NWLR (Pt.887)295
BEFORE THEIR LORDSHIPS
SALIHU MODIBBO ALFA BELGORE, J.S.C. (Presided)
DENNIS ONYEJIFE EDOZIE, J.S.C. (Read the Leading Judgment)
(For themselves and on behalf of Akowonwado Family)
N.O.O. Oke, ESQ.with him, O.T. Akinbiyi, ESQ. – For the Appellants
Adebayo Adenipekun, ESQ. – For the Respondents
ACTION- Claim of plaintiff – How ascertained.
APPEAL- Grounds of appeal – Omnibus ground of appeal in civil appeals – Omnibus ground of appeal in criminal appeals – How each couched.
APPEAL – Issues for determination – Formulation of – Rules governing – Need to relate to grounds of appeal-Where not so related – Effect on arguments based thereon.
COURT – Technicalities – Attitude of court thereto.
INJUNCTION – Claim of injunction – Where it relates to land – Burden on plaintiff seeking.
JUDGMENT AND ORDER – Non-suit – Order of – When it will be made – When it will not be made – Relevant considerations.
LAND LAW – Declaration of title – Identity of land – Burden on plaintiff to prove precise area to which his claims relate- When will not arise.
LAND LAW – Injunction – Grant of in land matters – Burden on plaintiff seeking.
PRACTICE AND PROCEDURE – Appeal – Grounds of appeal – Omnibus ground of appeal in civil appeals- Omnibus ground of appeal in criminal appeals – How each couched.
PRACTICE AND PROCEDURE-Appeal -Issues for determination – Formulation of- Rules governing – Need to relate to grounds of appeal – Where not so related – Effect on arguments based thereon.
PRACTICE AND PROCEDURE – Claim of plaintiff – How ascertained.
PRACTICE AND PROCEDURE – Non-suit – Order of – When it will be made – When it will not be made – Relevant considerations.
PRACTICE AND PROCEDURE-Technicalities-Attitude of court thereto.
DENNIS ONYEJIFE EDOZIE, JSC. (Delivering the lead judgment):
The Plaintiffs/Appellants in Suit No. HCL/26/83 filed at the Abeokuta High Court in Ogun State commenced proceedings culminating in this appeal against the Defendants/Respondents from whom they sought a declaration of right of occupancy over an area of land, N200 damages for trespass and an injunction restraining further acts of trespass on the disputed land. From their pleadings and evidence in support thereof, the Plaintiffs/Appellants relied on traditional evidence to establish their case. According to them, the vast track of land edged red in their survey plan admitted in evidence as Exhibit B, belonged to Akowonwado their ancestor who migrated from Ile-Ife to settle on the land about 200 years ago. Their said ancestor Akowonwado first settled on a portion of the vast land known as Ilase and then at Oko-omi also within the land. He exercised acts of possession and ownership by farming, building and hunting thereon without interference by anybody. Upon his death, all his landed properties including the portion now the cause of the dispute which is edged yellow in the survey plan Exhibit B were inherited by his children namely, Latorikan, Oyikilu, Ookola, Dada Agbobalaya, Ejibosa, Agedu and Aajoye. These children spread all over the entire land and founded a number of villages such as Ore later called Ore-Akinde founded by Laforikan, Olorunlepupo formerly known as Oko Ilase founded by Oyekilu, Erinle village founded by Erinle son of Talabi and Ikemo founded by Ookola who begat Ajayi Aga and Aina Eru. It was the case of the Plaintiffs/Appellants that the Defendants/Respondents were descendants of Ogunyemi who fled from Ilaro as a result of the death of many of his children. He fled with one surviving child called Akinde with his mother to Ore village where they stayed with Onitan his friend. After Ogunyemi’s death, Akinde continued to stay in Ore village, which later became Ore Akinde because of the popularity of Akinde as an Ifa priest. Akinde was given a portion of the land belonging to Ajayi Aga and Aina Eru the children of Ookola for farming purposes. The descendants of Akinde are still in occupation of that portion of land. The Plaintiffs/Appellants further alleged that no portion of the entire land inherited by the descendants of their great ancestor Akowonwado had been sold and nobody entered any part of their land without the permission of members of their family. The present dispute erupted because the Defendants/Respondents encroached beyond where they were given by trying to build a church without first obtaining permission from the Plaintiffs/Appellants’ family.
By their own pleadings and evidence proffered in support thereof, the Defendants/Respondents denied the Plaintiffs’/Appellants’ claims and traversed their main allegations. Ostensibly relying on traditional evidence, they equally lay claim over the land in dispute. According to them, their great ancestor Ogunyemi came from Ilaro. He and Aina Akaraki were the first settlers in Mede which later became known as Oko-omi. Ogunyemi lived and died there and thereafter one of his three sons Akinde moved to the place now known as Ore Akinde, which he founded. The descendants of Akinde continued to exercise acts of ownership over Ore Akinde where they built houses and constructed roads without any let or hindrance nor permission from anybody. Finally, the Defendants/Respondents admitted erecting a church building at Ore Akinde without seeking the consent and permission of the Plaintiffs/Appellants asserting that the land in Ore Akinde and its environs marked ‘B’ and edged Red in their survey plan admitted as Exhibit ‘C’ belongs to the Defendants’/Respondents’ family.
After due summarization and evaluation of the evidence of the parties, the learned trial Judge Sofolahan J on 15th November 1990 upheld the traditional evidence of the Plaintiffs/Appellants adjudging them entitled to the customary right of occupancy over the area edged red in their plan Exhibit ‘B’ and an injunction against the Defendants/Respondents with respect to the yellow verge in the said plan Exhibit ‘B’. Dissatisfied with the outcome of the proceedings at the trial Court, the Defendants/Respondents lodged an appeal to the Court of Appeal, Ibadan Judicial Division which Court in its judgment of 30th April, 2001 though affirming the findings of facts made in favour of the Plaintiffs/Appellants with respect to their traditional history, nonetheless non-suited the Plaintiffs/Appellants on the ground that the area of land which they claimed on their writ, to wit, “an area of land situate, lying and being at Ore village via Iju Otta, Ogun State” was not identifiable.
It is against that judgment of the Court of Appeal non-suiting the Plaintiffs/Appellants that they the Plaintiffs/Appellants have brought this appeal predicating same on a notice of appeal containing two grounds of appeal.
Having regard to the preliminary objection raised by the Defendants/Respondents, I propose to set out the two grounds of appeal shorn of their particulars. They read as follows:-
“Grounds of Appeal
“The only technical hitch that prevented the Plaintiffs/Respondents from having judgment was the disparity between their claims as phramed (sic) and the area of land they successfully proved as their own. There is no doubt therefore that it will be totally inequitable for their claim to be dismissed. I believe that from the facts established in this case, this is a case in which an order of non-suit ought to be made”
In the Appellants’ brief of argument, learned counsel for the Plaintiffs/Appellants raised two issues for determination, viz,:-
“1. Whether the Court of Appeal’s approach to the Plaintiffs’ claims was right in law that the trial Court was wrong when it granted the Plaintiffs judgment for declaration of title to the entire area of land verged ‘Red’ in their survey plan Exh. B on the view that their claim was limited to an area of land named “Ore village” as endorsed on the Writ of Summons.
The Defendants/Respondents at paragraph 3.1 of their brief raised a preliminary objection to the following effect-
“(1) Ground two of the grounds of appeal in the notice of appeal is incompetent and the same should be struck out.
(2) Issue two formulated by the Appellants in their brief of argument is not based on any ground of appeal and it is incompetent and it should be struck out and the argument based on the same should be discountenanced.”
Expatiating on the objection, learned counsel for the Defendants/Respondents referred to Order 8 rule 2(4) of the Supreme Court Rules which provides that-
“No ground which is vague or general in terms or which disclosed no reasonable ground of appeal shall be permitted save the general ground that the judgment is against the weight of evidence, and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court of its own motion or on application by the Respondent.”
and submitted that ground 2 of the grounds of appeal is general in terms and at the same time not framed in the exceptional manner permitted by the Supreme Court Rules. Citing the case of Mogaji v. Odofin (1978) 4 SC 91 at 93-95, it was submitted that the omnibus ground of appeal permitted under Order 8 rule 2(4) of the Supreme Court Rules which is a challenge on the weight of evidence is not the same thing as an allegation that judgment or order is “unreasonable” or “unwarranted” which postulates that there is no evidence at all in support of the judgment appealed against.
Learned counsel urged that ground 2 of the grounds of appeal not having been couched in the manner of framing an omnibus ground of appeal in a civil case is incompetent and ought to be struck out on the authority of the case of Atuyeye v. Ashamu (1987) 1 N.W.L.R. (Pt. 49) 269 at 280-281.
Referring to issue No. 2, as formulated in the Appellants’ brief, learned counsel submitted that the said issue is not related to or derived from any of the grounds of appeal and therefore incompetent citing, in support the cases of Momodu v. Momoh (1991) 1 NWLR (Pt. 169) p. 608 at p. 620-621 and Amadike v. Government of Imo State (1993) 2 NWLR (Pt. 275) 302 at p.313.
Learned counsel for the Plaintiffs/Appellants did not file a Reply brief to react to the preliminary objection and the Court is constrained to hazard an opinion on the points agitated without the benefit of his assistance. Be that as it may it is judicially recognised that an omnibus ground of appeal in a criminal case is differently drafted from such a ground of appeal in a civil case. In a criminal case the essence of such a ground is that there is no evidence to support the verdict and therefore the omnibus ground in a criminal case is framed thus – “The verdict or judgment is unreasonable and cannot be supported having regard to the evidence”. See Aladeasuru v. The Queen (1956) A.C. 49, B.P. (West Africa) Ltd. v. Akinola Allen (1962) 2 SCNLR 388.
In civil cases which are decided on the basis of preponderance or balance of evidence, the omnibus ground of appeal is simply that – “the judgment is against the weight of evidence”, See Akibu v. Opaleye & Anor (1974) 11 S.C 189. However, it has been held that it is unobjectionable if such a complaint is couched as – “the judgment is unreasonable unwarranted and cannot be supported having regard to the weight of evidence.” See the cases of Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267, Adeyeri v. Okobi (1997) 6 NWLR (Pt. 510) 534, Stephen Oteki v. Attorney-General, Bendel State (1986) 2 NWLR (Pt. 24) 648 at 659. In the case under consideration, ground 2 of the grounds of appeal already set out is for ease of reference repeated hereunder as follows:-
“2 The order is unreasonable and unwarranted having regards (sic) to the facts.”
On the authorities cited above, I agree with learned counsel for the Defendants/Respondents, that the ground as couched is more appropriate in a criminal than in a civil case. It is incompetent as it contravenes Order 8 rule 2(4) of the Supreme Court Rules. It is accordingly struck out .
With respect to the second arm of the objection relating to the second issue for determination, it is, no doubt, a correct statement of law that an issue for determination in an appeal which is not related to or derived from any of the grounds of appeal challenging the judgment appealed against is incompetent and must be discountenanced together with argument advanced thereunder in the consideration of the appeal. Authorities in this regard are legion and they include Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208, Ehot v. The State (1993) 4 NWLR (Pt. 290) 644, Din v. African Newspapers of Nig. Ltd. (1990) 3 NWLR (Pt. 139) 392 at 403, Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563 and Madumere v. Okafor (1996) 4 NWLR (Pt. 445) 637 to mention but a few. In the case in hand, I am of the view that it is a misconception on the part of learned counsel for the Defendants/Respondents to contend, as he did, that the second issue for determination is not related to any of the grounds of appeal. A careful perusal of the first ground of appeal reveals that it is a complaint against the order non-suiting the Plaintiffs/Appellants, and made in substitution of the order of right of occupancy and injunction decreed in favour of the Plaintiffs/Appellants by the learned trial Judge. It therefore stands to reason that a complaint in ground one against the order of non-suit encompasses both the first issue for determination relating to declaration of title as well as the second issue dealing with the grant of injunction. Since it is against the practice of brief writing for one ground of appeal to be split into two issues, it would have been more appropriate for only one issue to be distilled from the first ground of appeal. Accordingly, I will merge and reframe the 1st and 2nd issues thus:-
“Whether the learned Justices of the Court of Appeal were justified in setting aside the judgment of the trial Court and non-suiting the Plaintiffs/Appellant.”
This is in consonance with the lone issue for determination distilled in the Respondents brief of argument, to wit:-
“Whether in the circumstances of this case the lower Court was right when it set aside the orders of the High Court and in its stead entered an order non-suiting the Plaintiffs’case.”
This formulation is wide enough to accommodate arguments on the judgment for declaration of title and grant of injunction made by the trial Court in favour of the Plaintiffs/Appellants but set aside by the Court below. In the light of the foregoing, I will overrule the preliminary objection with respect to the second issue for determination.
On the merits of this appeal, it seems to me that the bone of contention revolves on the identity of the land claimed by the Plaintiffs/Appellants. Is it the yellow verge variously known as Ore village and Ore Akinde which forms an integral but an insignificant portion of the land in dispute verged red in the Plaintiffs’/Appellants Plan Exh. “B” or the entire land in dispute verged red in the said plan, Exhibit “B”. This issue has arisen because whereas the trial Court gave judgment to the Plaintiffs/Appellants in respect of title over the entire area of land in dispute, the Court of Appeal was of opinion that that judgment ought to be limited to the yellow verge, that is, Ore village as expressly stated on their writ of summons.
To ascertain the exact claim of a Plaintiff in a suit, one generally must have recourse to the writ of summons and the claim as endorsed in the statement of claim. But just as in determining whether an averment in a particular paragraph of a statement of claim is traversed, one is not limited to a particular paragraph of the statement of defence but to the entire defence for which see Pan African Co. Ltd. v. National Insurance Co. (Nig.) (1982) 9 S.C. 1; Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519; Iga v. Amakiri (1976) 11 S.C. 1, so by way of analogy, to ascertain the Plaintiffs’ claim it is necessary to examine not only the writ of summons or the claim portion of the statement of claim but also other paragraphs of the statement of claim as well as plans filed along with the statement of claim. In this regard, I will refer to the claim as endorsed in the writ of summon, paragraphs 7 and 45 of the statement of claim filed in respect of the suit. They read as follows-
Claim endorsed on the writ of summons
“1. Declaration that the Plaintiffs are entitled to the right of occupancy over an area of land situate, lying and being at Ore village via Iju Otta, Ogun State.
Paragraph 7 of the statement of claim
“The land in dispute is edged red in Plan No. LAT118/0G/84 drawn by L. Ademola Ashipa, Licensed Surveyor dated 16/3/84 and attached to this statement of claim.”
Paragraph 45 of the statement of claim
whereof the Plaintiffs claim as per their writ of summons.”
The survey plan referred to in paragraph 7 of the statement of claim which was admitted in evidence by consent as Exhibit “B”, indicates that the land in dispute claimed by the Plaintiffs/Appellants is edged red and measures 2380 hectares and that a small area verged yellow in Ore village was the cause of action. Since the Plan Exhibit “B” is part of the statement of claim, a community reading of it together with the writ of summons leaves no one in doubt that the claims of the Plaintiffs/Appellants relate to the area verged red in Exhibit “B” and not to the yellow verge which is merely the cause of action. This is borne out from paragraphs 6, 9, 10, 11, 13, 14, 15 and 35 of the statement of claim which read, inter alia, thus:
“6 The land in dispute forms part of a larger area of land originally settled upon by Akowonwado who migrated from Ile Ife about 200 years ago.
It is pertinent to mention that all the villages referred to in paragraph 15 are within the area verged red in Exhibit “B”, that is the land in dispute.
From their own showing as portrayed in their statement of defence particularly paragraph 22 thereof, the Defendants/Respondents were not mistaken on the identity of the land claimed by the Plaintiffs/Appellants including the area that gave rise to the action. Paragraph 22 of their defence reads:
“22 The Defendants admit erecting a church building at Ore Akinde without seeking permission or consent from the Plaintiffs or anybody at all as the land in Ore Akinde and its environs marked “B” and edged Red in the Plan No. AK. 3051/09 of 23/6/83 prepared by D.O. Akigbogun licensed surveyor belong to the Defendants’ family by virtue of their descendancy from Akinde the original founder of Ore Akinde village and owner of the land aforesaid. The area marked ‘A’ and edged Red on the said Plan which will be founded upon at the trial, is the land inherited by the Defendants’ family through their original ancestor Ogunyemi. The Defendants family have since the times of Ogunyemi and Akinde his son occupied the two areas totalling 981 hectares, building, hunting, farming and exercising various other acts of ownership thereon without any let or hindrance until the recent acts of Plaintiffs culminating in this return ….”
The Defendants’/Respondents’ plan admitted as Exhibit C at the trial shows that the land in dispute edged Red consists of two contiguous parcels of land marked respectively A and B.
The portion marked ‘A’ measures 757.400 hectares includes the village of Ore Akinde. The Defendants claim to have inherited that area by virtue of their descent from Akinde the son of Ogunyemi. The other portion marked “B” measures 223.200 hectares devolved on them from their great ancestor Ogunyemi. Although the Defendants/ Respondents did not counter-claim, against the Plaintiffs/Appellants, they are no doubt laying claim of those parcels of land marked “A” and “B” in their survey plan Exhibit C. It is plain to me that the land in dispute which the Plaintiffs/Appellants claimed in their suit is the entire land edged red in their plan Exh. “B” and not the land at Ore village verged yellow in Exh. “B: which is merely the cause of action prompted by the erection of a church building thereon by the Defendants/Respondents without the permission of the Plaintiffs/Appellants. Though the claim of the Plaintiffs/Appellants was inelegantly formulated, the attitude of the Courts nowadays is to do substantial justice without undue adherence to technicalities. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice. See Nishizawa v. Jethwani (1984) 12 S.C 231 at 279, Okaroh v. State (1990) 1 SCNJ 124 at 130, Dr. Okonjo v. Dr. Odje & Co. (1985) 10 S.C 265-268, G.B. Ollivant Ltd. v. C.A. Vanderpuye (1964) 2 WACA 368 at 372, Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at p. 717, Shuaibu v. Nigeria-Arab Bank Ltd (1998) 5 NWLR (Pt. 551) 582 at 596.
As learned counsel for the Plaintiffs/Appellants correctly stated, parties did not properly join issue on the identity of the land claimed by the Plaintiffs/Appellants. A Plaintiff seeking a declaration of title to land has the primary duty or burden to prove clearly and unequivocally the precise area to which his claim relates. But that burden will not arise where the identity of the land in dispute was never a question in issue. That issue will only arise where the Defendant raises it in his statement of defence: See Ezeudu v. Obiagwu (1986) 2 NWLR (Pt. 26) 208, Fatuade v. Onwoamanan (1990) 2 NWLR (Pt. 132) 322.
The main issue that arose for resolution by the trial Court was which of the parties proved a better title based on their competing traditional histories. The trial Court addressed this issue admirably and stated, inter alia at pp 296, 300 and 302 thus:
“Mr. Akintunde stated and agreed to by Mr. Latude that they both rely on traditional evidence to prove their case; but if the Court finds that the traditional evidence of both parties are inconclusive, then the Court will have recourse to recent acts of possession and ownership and see which of the competing claims is more probable having regard to the evidence of such positive acts which equivocally point to exercise of ownership over the disputed land. See the cases of Kojo v. Bonsie (1957) 1 WLR 1223 and Ekpo v. Ita 11 NLR 68
My final view is that the traditional evidence as stated in evidence in Court by the Plaintiffs is more acceptable to me than those of the Defendants …………………………………………
If I ought to have found that there was conflict in the traditional evidence of both parties (I am convinced that there was none), let me examine the other aspects such as being in possession and performing such acts of ownership that will lead a reasonable mind to determine the true ownership of the land………………………………….
By the features in Exhibit “B” and the Defendants’ admission that the Plaintiffs own and live at Oko-Omi, the Plaintiffs would appear to me to own all the regions around Oko-Omi and edged red in Exhibit B which included Oko-Omi and the area in dispute edged yellow. Section 45 of the Evidence Act will operate in favour of the Plaintiffs…..
Having so held, the onus is now on the Defendant to show that the Plaintiffs are not the owner. Section 145 of the Evidence Act refers. The Defendants have not discharged that onus.”
The Court of Appeal in the leading judgment of Akintan JCA with which Onalaja and Adekeye JJCA concurred affirmed the above findings of the trial Court when at page 444 of the record it held:-
“….The learned trial Court rightly found as a fact that Plaintiffs proved their title to the entire land shown on their survey plan, Exh. “B”. The Plaintiffs also produced credible evidence that they have exercised control over the land since they inherited it from their ancestor. On the other hand, the Defendants failed to convince the Court about their claim of ownership of the enclave known as Ore Akinde village which is completely surrounded by the land which the Plaintiffs were able to prove that they inherited from their ancestor. The only technical hitch that prevented the Plaintiffs from having judgment was the disparity between their claim as phramed (sic) and the area of land they successfully proved as their own
In the result, I believe that from the facts established in this case, this is a case in which an order of non-suit ought to be made………”
The Defendants/Respondents have not appealed against those concurrent findings of fact and by implication they have accepted those findings to have been correctly made. Their only grouse is that the Plaintiffs/Appellants did not specifically claim the entire area verged red in their plan Exh. “B” over which right of occupancy was decreed in their favour. The Court below accepted that contention and non-suited them. In my respectful view, that is erroneous. As I had pointed out earlier, from the writ of summons read in conjunction with the statement of claim including the survey plan Exh. “B” it is plain to me that what the Plaintiffs/Appellants were claiming and upon which both parties joined issue was the land in dispute clearly delineated red in Exhibit “B”. It is that claim that the Defendants/Respondents defended and not just the yellow verge in Exh. “B” and the concurrent findings of the two lower Courts is that they are not entitled to that land. A non-suit is appropriate where there is no satisfactory evidence enabling the Court to give judgment to either of the parties and wronging neither: see African Continental Bank v. Yesufu (1980) 1-2 S.C 48, Olagbemiro v. Ajagungbade (1990) 3 NWLR (Pt. 136) 37. Since both Courts below had decided that the Plaintiffs/Appellants established their title to the land in dispute, an order of non-suit cannot be justified.
Learned counsel for the Defendants/Respondents has adverted to paragraphs 39 and 40 of the statement of claim which he said disclosed that several portions of land at Ore village have been given to members of the Defendants and Plaintiffs families. He then submitted that as those grantees were not parties in the suit, Plaintiffs/Appellants would have failed in their claim. Similar submission was also made with respect to the portion of Ore village where the Plaintiffs/Appellants allowed the descendants of Akinde to farm. It was submitted that if the judgment of the trial Court were allowed to stand, it would have the effect of depriving the descendants of Akinde the land granted to them. With due respect to Counsel, the persons or descendants of Akinde referred to have not complained. The Defendants/Respondents were sued in their personal capacity and it behoves Counsel to confirm himself to the case of his clients and not to offer unsolicited defence to parties who did not consult him. If those parties were aware of the case and decided not to be joined in the suit that is entirely their problem. Besides, if those parties were granted land as customary tenants, radical title still resides in the Plaintiffs/Appellants entitling them to the declaration of customary right of occupancy granted in their favour.
The learned trial Judge appreciated that the Defendants/Respondents were occupying some portions of the land in dispute lawfully granted to them by the Plaintiffs/Appellants hence he limited the scope of injunction to the yellow verge in Exh. “B” for in the concluding paragraph of his judgment, he said-
“They will also be entitled to an order of injunction against the Defendants in respect of the area edged yellow in Exh. “B”.
An injunction can only be granted and binding when the boundaries of the area or areas to be affected are ascertained, well known and properly described; see the cases of Anthony Idesola & Anor. v. Chief Paul Ordia (1997) 3 NWLR (Pt. 491) 17 at p. 29, Epi v. Aigbedion (1972) 10 S.C 53, (1972) 1 All NLR (Pt. 2) 370, Baruwa v. Ogunshola & Ors. 4 WACA 159, Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41.
In the case in hand, the Court below was of the view that the land in Ore that gave rise to the dispute between the parties was not identifiable hence it refused to grant a declaration of right of occupancy of that area in favour of the Plaintiffs/Appellant even though it was satisfied that they had proved their entitlement thereto. It is conceded that the land in question was not demarcated by pillar beacons but it is edged yellow in Exh. “B” depicting certain features that is, the church under construction. That Church building is also reflected in Exh. “C” the Defendants/Respondents plan. Undoubtedly, both parties know the land in question. Exh. “B” was drawn to scale and there is no evidence on record that a surveyor using the scale of the plan orientated at an origin indicated as O.N.N.O cannot locate the yelow verge on Exh. “B”
In the case of Amata v. Modekwu (1954) WACA 580 where a plan used in a previous suit in a claim for rent for farming was tendered in a subsequent suit for title, there was evidence that the plan was inaccurate and evidence so unsatisfactory that no judgment could be founded on it. There was no such evidence in the instant case. For this reason, I am of the opinion that the Court below was in error to have set aside the order of injunction made by the trial Court. For this same reason, too, it was in error to have refused to grant right of occupancy to the Plaintiffs/Appellants in respect of the yellow verge which according to it was the area claimed in the writ of summons. Having opined that the Plaintiffs’/Appellants’ claim related to the entire land in dispute verged Red in Exh. “B” and that both parties fought and contested the action on that footing with the concurrent findings of the two lower Courts in favour of the Plaintiffs/Appellants which findings have not been appealed against let alone faulted, it is my judgment that the order of the Court below non-suiting the Plaintiffs/Appellants was misconceived and erroneous.
For the foregoing reasons this appeal succeeds and is accordingly allowed. The judgment of the Court below is set aside and that of the trial Court is restored. The Plaintiffs/Appellants are entitled to costs assessed and fixed at N10,000.00 against the Defendants/Respondents.
SALIHU MODIBBO ALFA BELGORE, JSC.: I also allow this appeal for the reasons clearly given in the judgment of Edozie, JSC. I make the same orders as to costs.
UTHMAN MOHAMMED, JSC.: I have had the privilege of reading the judgment of my learned brother, Edozie, JSC, and I agree with him that this appeal has merit. For the reasons given in the lead judgment I too allow the appeal. I set aside the judgment of the Court of Appeal and restore that of the High Court. I also award N10,000.00 costs in favour of the Appellants.
SYLVESTER UMARU ONU, JSC.: Having been privileged to read in draft the judgment just delivered by my learned brother Edozie, JSC, I agree with his reasoning and conclusion. I adopt the same as mine and have nothing further to add thereto.
NIKI TOBI, JSC.: Where a Plaintiff fails to adduce sufficient evidence on a crucial point in the matter, and where the state of evidence does not entitle the Defendant to judgment, the proper order to make is one of non-suit. See Ode v. Trustees of Ibadan Diocese (1966) 1 All NLR 287. The order of non-suit is to be granted where a Plaintiff has only failed to get judgment on account of a mere technical hitch of which the defence is not, in the opinion of the Court, entitled to take an advantage. See Odiete v. Okotie (1972) 6 S.C 83; Ogunloye v. Durosinmi (1975) 12 S.C 49; Okpaloka v. Umeh (1976) 9-10 S.C 269.
Where in a claim of declaration of title to land the Plaintiff proves ownership of only a portion of the land claimed, the proper order to make is one of non-suit. See Ejiofor v. Onyekwe (1972) 12 S.C 171. Non-suit may not be granted where a claim for declaration of title to land fails because the boundaries of the land are not ascertained; but where there is evidence that the Plaintiff owns a part of the land the whole of which he failed to ascertain, non-suit may be granted. See Epi v. Aigbedion (1972) 10 S.C 53. An order of non-suit should not be made when the effect of such order would be to penalise a Plaintiff who maintained a continued consistency both in his pleadings and by the evidence in support thereof. See Ekpenyong v. Ayi (1973) 5 S.C 169.
In ordering a non-suit, the Court of Appeal said at page 444 of the Record:
“Applying the law as declared above to the facts of the instant case, the learned trial Court rightly found as a fact that the Plaintiffs proved their title to the entire land shown on their survey plan, Exh. B. The Plaintiffs also produced credible evidence that they have exercised control over the land since they inherited if from their ancestor. On the other hand, the Defendants failed to convince the Court about their claim of ownership of the enclave known as Ore Akinde village which is completely surrounded by the land which the Plaintiffs were able to prove that they inherited from their ancestor. The only technical hitch that prevented the Plaintiffs from having judgment was the disparity between their claim as phramed (sic) and the area of land they successfully proved as their own. There is no doubt therefore that it will be totally inequitable for their claim to be dismissed. This is because doing that will have the effect of not only preventing any future relief to the Plaintiffs but will confer an undeserved legitimacy on the Defendants of their act of illegally acquiring what has been shown not to belong to them. In the result, I believe that from the facts established in this case, this is a case in which an order of non-suit ought to be made.”
If the Court of Appeal agreed with the trial Judge, as it did, that “the Plaintiffs proved their title to the entire land shown on their survey plan” and “also produced credible evidence that they have exercised control over the land since they inherited it from their ancestor”, there is, with respect, no legal basis for the order of non-suit. The Appellants are entitled to judgment, as the learned trial Judge rightly held.
Burden or onus of proof presupposes the existence of a dispute. Accordingly, where there is no dispute, the parties are deemed to be ad idem, and proof of fact or facts in the pleadings no longer arises. I entirely agree with learned counsel for the Appellants that the parties did not properly join issue on the identity of the land. The main issue was title to the land in dispute.
It is for the above reasons and the more comprehensive reasons given by my learned brother, Edozie, JSC, that I too allow the appeal. The judgment of the Court of Appeal is hereby set aside and that of the High Court restored. I also award N10,000.00 costs in favour of the Appellants.