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CHIEF ADEBAYO BASHORUN OLUFOSOYE & ORS. V. JOHNSON O. OLORUNFEMI(1989)

CHIEF ADEBAYO BASHORUN OLUFOSOYE & ORS. V. JOHNSON O. OLORUNFEMI

In The Supreme Court of Nigeria

On Friday, the 13th day of January, 1989

SC.191/1985

 

JUSTICES

AUGUSTINE NNAMANI    Justice of The Supreme Court of Nigeria

ADOLPHUS GODWIN KARIBI-WHYTE    Justice of The Supreme Court of Nigeria

CHUKWUDIFU AKUNNE OPUTA    Justice of The Supreme Court of Nigeria

ABDUL GANIYU OLATUNJI AGBAJE    Justice of The Supreme Court of Nigeria

ABUBAKAR BASHIR WALI    Justice of The Supreme Court of Nigeria

Between

 

  1. CHIEF ADEBAYO BASHORUN OLUFOSOYE
    2. ABUDU AKINTUJOYE
    3. OYEGUNADE ADETOKUNBOH
    (For themselves and on behalf
    of Loduti and Ajaka Family) Appellant(s)

AND

JOHNSON O. OLORUNFEMI  Respondent(s)

RATIO

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TWO COURTS BELOW 

From a long line of cases, it is clearly evident that it is the policy of this Court not to interfere with the concurrent findings of the two courts below. This policy is predicated on, and presupposes that, the court of first instance evaluated the evidence, exercised its right to believe or disbelieve witnesses, and then finally arrived at specific findings on the issues of fact arising from the pleadings and evidence as presented to the court for resolution. When that had been done and the Court of Appeal confirms the findings of the trial court, then an appellant is confronted with a rather uphill task. There again, such an appellant will be required to show either that the findings were perverse thus leading to an obvious miscarriage of justice or that there was a violation of some principle of law or procedure:- Enang v. Adu (1981) 11-12 S.C. 25 at p.42: Okagbue v. Romaine ( 1982)5 S.C. 133 at pp.170 and 171; Lokoyi v. Olojo (1983) 8 S.C. 61 at p.68; Ojomu v. Ajao (1983) 9 S.C. 23 at p.53.
Where, however, the trial court made no findings of its own and there is no issue of credibility of the witnesses who testified for the opposing parties, a Court of Appeal will be justified in evaluating the evidence and drawing its own conclusions and inferences from proved or admitted facts, and then deciding the case accordingly. But where both the trial court and the Court of Appeal failed to thus evaluate the evidence and make findings on relevant issues, there one cannot talk of concurrent findings simply because such findings do not exist. And this is the difficulty confronting the parties in this appeal – there were no findings on the issues of title and acts of possession and ownership. PER OPUTA, J.S.C.

WHETHER OR NOT A PLAINTIFF MUST SHOW THE AREA OF LAND TO WHICH HE CLAIMS IN AN ACTION FOR DECLARATION OF TITLE TO LAND

I think it is an elementary requirement of our land law that the first duty of any plaintiff claiming from the court a declaration of title to land is to show clearly the area of land to which his claim relates:- Akinola Baruwa v. Ogunshola (1938) 4 W.A.C.A. 195. This duty a plaintiff can discharge, either by describing the land with such particularity that a surveyor can from his description produce an accurate plan of the land:- Kwadzo v. Adjei (1944) 10 W.A.C.A. 274 or, by himself producing an accurate plan of the land showing precise boundaries. If the plan is inaccurate in the sense that the boundaries are imprecise or that the oral evidence does not tally with the details appearing on the plan, then the trial court will be justified in regarding such a plan as vague and unsatisfactory and again justified in refusing to find a declaration of title on such a plan: Udekwe Amata v. Udogu Modekwe & Ors. (1954) 14 W.A.C.A. 580. PER OPUTA, J.S.C.

OPUTA, J.S.C. (Delivering the Leading Judgment): The Plaintiffs/Appellants claimed in the Court of first instance the following:-
1. “A declaration of title under Native Law and Custom to all that piece or parcel of land situate lying and being at Oke Obara, along Ondo/Akure Road, Ondo, which is more particularly shown and verged Red in plan No. JFO 6642 ……..
2. N1,000.00 being general damages for trespass.
3. Perpetual injunction restraining the Defendant, his servants, agents and privies from committing further acts of trespass on the said land.”
Pleadings and plans were ordered, filed and duly exchanged. Either party in the course of the proceedings amended its original pleading and the case was ultimately fought on the Amended Statement of Claim and the Amended Statement of Defence. After due trial on relevant and available evidence Afonja, J. of the Ondo State High Court dismissed the plaintiffs’ claims as contained in the writ and their pleadings.
Dissatisfied and aggrieved the Plaintiffs appealed, to the Court of Appeal Benin Division, against the said judgment of Afonja, J. In a lead judgment delivered by Ete, J.C.A., (in which Omoigberai Eboh and Okagbue, JJ .C.A. concurred), the Court of Appeal upheld the judgment of the trial court and dismissed in its entirety the appeal of the Plaintiffs. The present appeal to this Court is from that judgment of the Court of Appeal.
The Plaintiffs therefore lost in the two Courts below. From a long line of cases, it is clearly evident that it is the policy of this Court not to interfere with the concurrent findings of the two courts below. This policy is predicated on, and presupposes that, the court of first instance evaluated the evidence, exercised its right to believe or disbelieve witnesses, and then finally arrived at specific findings on the issues of fact arising from the pleadings and evidence as presented to the court for resolution. When that had been done and the Court of Appeal confirms the findings of the trial court, then an appellant is confronted with a rather uphill task. There again, such an appellant will be required to show either that the findings were perverse thus leading to an obvious miscarriage of justice or that there was a violation of some principle of law or procedure:- Enang v. Adu (1981) 11-12 S.C. 25 at p.42: Okagbue v. Romaine ( 1982)5 S.C. 133 at pp.170 and 171; Lokoyi v. Olojo (1983) 8 S.C. 61 at p.68; Ojomu v. Ajao (1983) 9 S.C. 23 at p.53.
Where, however, the trial court made no findings of its own and there is no issue of credibility of the witnesses who testified for the opposing parties, a Court of Appeal will be justified in evaluating the evidence and drawing its own conclusions and inferences from proved or admitted facts, and then deciding the case accordingly. But where both the trial court and the Court of Appeal failed to thus evaluate the evidence and make findings on relevant issues, there one cannot talk of concurrent findings simply because such findings do not exist. And this is the difficulty confronting the parties in this appeal – there were no findings on the issues of title and acts of possession and ownership.
The Plaintiffs) Appellants claimed a declaration of title, damages for trespass and injunction. They pleaded their root of title and relied on their traditional history and descent from their ancestor Jilalu from whom they inherited the land. They pleaded various acts of ownership and possession including grants and sales of portions of the land in dispute to the C.M.S. and Muslim Communities, sales to G.O. Akinfolarin, Ekemode, Roger, Awosika and Bishop Olufosoye etc. The Appellants’ complaint in the Court of Appeal and also before this court was, and is, that the trial court failed to evaluate the evidence and that the Court of Appeal should have done just that and that if that were done there would have been judgment entered in their favour.
This leads naturally to a cool, careful and dispassionate consideration of the 2nd Issue for Determination as formulated by the Appellants in their Brief of Argument:-
Issue No.2.
“Whether the grounds of appeal not considered by the Court of Appeal were material for an effective determination of the issue before it, and whether if considered, the grounds would have had any profound effect on the Final decision”
The Appellants’ Brief then summarised the matters on which issues were joined by the parties as per their pleadings as follows:
“(1) Whether the plaintiffs or the Defendant or his predecessor in title sold land or granted leases as claimed in paragraph 14 of the Amended Statement of Claim and contradicted in paragraphs 14 and 15 of the Amended Statement of Defence.
(2) Whether or not Loduti and Ajaka family established its radical title as based on traditional evidence;
(3) Whether or not Loduti and Ajaka family established ownership of the land in dispute by the exercise of acts tantamount to ownership like selling and leasing parts of the land in dispute as pleaded in paragraph 14 of the Amended Statement of Claim;
(4) Whether or not the Defendants has been trespassing on the land in dispute by leasing and selling parts of the land to strangers as claimed in paragraph 15 of the Amended Statement of Claim
(5) What effect Exhibits “F’ and “G” have on the Plaintiffs’ claim in relation to the land in dispute or part thereof;
(6) Whether or not the plaintiffs proved possession in relation to the land in dispute and were therefore entitled to sue for trespass
(7) Whether or not Exhibits “D” “E” and “H” established the radical title claimed by the Defendant in view of the defects in them”.
The above issues raised in the Appellants’ Brief is a fair and accurate summary of the issues of fact presented for resolution to the two courts below. There is also another issue no less important – the precise extent, limit and accurate boundaries of the land designated by the Plaintiffs as “the land in dispute.”
I will leave the issue of precise boundaries to be considered later on in this judgment. That issue apart, there were the other issues of the parties’ roots of title, of the accuracy or otherwise of the Plaintiffs’ traditional history, of the Plaintiffs’ acts of ownership and acts of possession. There was the vital issue of the various grants alleged made by the Plaintiffs to various people and organisations. Were the Plaintiffs entitled to make those grants What will be the legal position of those grantees Those are issues that will very much depend on the resolution of the main issue of whether, or not, radical title resides in the Plaintiffs. Both parties pleaded acts of possession. Two parties whose claims were adverse cannot be legally in possession of the same piece of land. No. The possession of one of them must, due to the adverse nature of their claims be adjudged an act of trespass.
The above are issues which may very much, and very well, depend on the credibility of the witnesses who testified before the trial court. That is why it is incumbent on a trial court to make up its mind on the evidence led and determine each issue of fact one way or another by making a specific finding on each such issue of fact. It is expected that learned counsel in our trial courts should endeavour to highlight the various issues of fact in the case and urge the trial judges to find one way or another on each issue. A general submission urging the court “to disbelieve the plaintiff and his witnesses” is not enough. The evidence material and relevant should be related to each issue and then the court should further be urged to find for or against the party on such issue. I agree with and adopt the dicta of Viscount Simonds in Benmax v. Austin Motor Co. Ltd. (1955) A.C. 370 at p.375: (1955) 1 All E. R. 326 at p.327 and 328 that:-
A judge sitting without a jury would fall far short of his duty if he did not first find the facts and then draw from them the inference of fact”
There is a duty in a trial court to receive all available relevant evidence on an issue. This is perception of evidence. After that there is another duty to weigh that evidence in the con of the surrounding circumstances of the case. This is evaluation of evidence. A finding of fact will entail both perception and evaluation. But very often in actual practice it is difficult to say when perception ends and evaluation begins.
This naturally leads me on to the submission of learned counsel for the Plaintiffs/Appellants in his Brief that:-
“It is submitted that failure by the learned Justices of the Court of Appeal to assume the role of the trial judge in properly evaluating the evidence in respect of the above issues which were joined after the trial judge had failed to do so, caused a great miscarriage of justice as the issues were never properly considered and determined by both courts.”
Because of the above submission and considering the rather restricted and circumscribed position of an appellate court with regard to issues of fact and findings of fact, the court decided to reconvene after adjourning for judgment, and then requested learned counsel on both sides to address it further on whether or not the proper Order in this appeal should be a Non-Suit During that address, Mr. Adegbesan for the Plaintiffs/Appellants submitted that on the printed record this Court cannot enter judgment either for the Plaintiffs/Appellants or for the Defendant/Respondent. The issue of radical title was not resolved either way by the two courts below. The trial court, continued the submission, again made no findings as to the acts of possession pleaded by either side. Mr. Adegbesan also submitted that the Plaintiffs did not fail in toto. Their only headache was with the issue of precise boundaries. If the Plaintiffs case is dismissed that will foreclose the right of the Plaintiffs and their grantees to regularise any deficiencies in the presentation of the Plaintiffs’ case, in the overall interest of justice. But an Order for Non-Suit will not entail such a foreclosure.
Chief Obiyemi for the Defendant/Respondent submitted that a non-suit is by itself a harsh, oppressive and irregular Order against the Defendant.” This is because, (the submission continued), the law is that whoever alleges must prove his allegation and failure to discharge that onus has a consequence which is dismissal. Chief Obiyemi, however, conceded that a “Non-Suit is usually considered where a plaintiff has not failed in toto.” Then, it was again conceded, “the dismissal will rob such a plaintiff of his right to re-litigate while a Non Suit will not.” Chief Obiyemi rounded up his submission by asserting that in this case the Plaintiffs failed completely. They did not establish two of their four boundaries, and their survey plans Exh. A and B made the confusion worse confounded. The court then drew Chief Obiyemi’s attention to p.169 Lines 10-20 where the court of first instance stated the law:-
“Admittedly, it is settled law that in a claim for a declaration of title, a declaration of title of a similar area within the larger area may be made by the trial court, so long as the lesser area is properly defined and proved to the satisfaction of the court….”
One of the complaints of the learned trial judge was that the Appellants included in their plan Exs. A and B areas they alleged they sold or granted to third parties within “the land in dispute.”
Now two questions arise namely:-
1. Could the Court of Appeal and can this Court on the printed record declare either the Plaintiffs or the Defendant owners or owner of the land in dispute
2. When will it be necessary in the interest of justice to order a Non Suit
I will take question No.1 above first. There are very, very many cases dealing with the attitude and proper role of appellate Courts towards issues of fact and findings of fact. One may have to recapitulate the main strands in those decisions relevant to issues raised in this appeal.
1. Where a question of fact has been tried by a Judge and there is no question of any misdirection of himself by the trial judge an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial court’s conclusion – see Watt (or Thomas) v. Thomas (1947) 1 All E.R. 582 at p.584: Lawal Buraimo Fatoyinbo & Ors. v. Selatu Abike Williams (1956) 1 F.S.C. 87.
I have italicised “conclusion” as used above to show that there is a distinction between a findings of fact and conclusions that could possibly be drawn from those findings.
2. A finding of a specific fact invariably involves the issue of the credibility of opposing witnesses. There is therefore a universal reluctance by appellate courts to reject a finding of specific fact based on the credibility of the witnesses who testified before the trial court, witnesses, whom the Appellate court neither saw nor heard. Kuma v. Kuma 5 W.A.C.A. 4 at p.9.
3. When the sole question is the proper inference or the proper conclusion to be drawn from specific facts, from facts as found; there and then, an appellate court is in as good a position as the trial court to draw the necessary inference and there also, an appellate court should form its own independent opinion having given due weight to the opinion of the trial judge. Benmax v. Austine Motor Co. Ltd. supra Sockna Mormodu Allie & ors. v. Ahmed Alhadi 13 W.A.C.A. 320 at p.321 per Lord Porter.
There is no need considering other cases dealing with this aspect of our law as it is obvious from the record of proceedings that the trial court made no findings as complained of in Issue No.2 in Appellants’ Brief.
Now where there was no finding on several specific issues of fact by the trial court, (just as happened in the case now on appeal) – the question there is, what happens The West African Court of Appeal in 1932 dealt with such a situation in Chief Kweku Assampong v. Kweku Amuaku & Ors. (1932) 1 W.A.C.A. 192 At p.197 the court observed:
“This is a question of fact, and as I have already mentioned the trial judge omitted to record any finding upon the point. If it were practicable I consider the proper course would be to send this case back to him to do so. But he has finally retired from the service and such a reference would be abortive……”
From the above it is clear that it is only the trial court that has the power to make findings on specific facts especially, as usually is the case, when such findings will involve the credibility of opposing witnesses and their conflicting testimonies. In any event an admitted fact is not a fact in issue. It is only where facts are in dispute that they are said to be in issue: Ehimare & ano. v. Okaka Emhonyon (1985) 1 N.W.L.R. (Part 2) 177 at p.183. Issues are decided by and in the pleadings and pleadings deal mainly with facts. This Court in Onyekaonwu & Ors. v. Ekwubiri and Ors. (1966) 1 All N.L.R. 32 at p.35 observed inter alia:-
“….There is also a claim for trespass. The rule is that the person in possession can maintain trespass against anyone who cannot show a better title. The Defendants had the duty to prove that they were entitled to go into possession, but there is no finding that they were. The law was, with respect, misunderstood and misapplied. It is not a case in which we can undertake to make the findings of fact ourselves…….. There must be a retrial………” (italics mine).
In Onyekaonwu’s case above the appeal was allowed and a retrial ordered. Also in Otekhagua Ozibe & 4 ors. v. Chief Ile Aigbe & 20rs. (1977) 7 S.C. 1 at pp.10-11 this court held:
“1. That several issues were raised in the pleadings that required to be resolved (as was done in this case)
2. That the learned trial judge failed in his duty as judge and jury to make any findings of fact and resolve these issues (as happened in the case now on appeal).
3. These issues were not resolved by the mere acceptance of the story told by the plaintiffs and their witnesses whose evidence conflict with the pleadings and contradict themselves on material points.
4. In the circumstances, a retrial would be ordered:’
In Ozibe’s case supra this Court allowed the appeal and ordered a retrial mainly on the ground that there was a failure by the trial court to make findings of fact and thus resolve the issues that arose from the pleadings of the parties. It is trite law that an appellate court cannot undertake, on the printed record, to make findings of fact and thus resolve the conflicting claims of the contending parties without encroaching dangerously on the preserve of the court of first instance which saw the witnesses, heard them testify, watched their demean our and was thus in vantage position to believe or disbelieve and then make appropriate findings of fact.
Having arrived at this point, the stage is now set to consider the second question – when will it be necessary in the interest of justice to order a non suit Adjudication in our courts is our human attempt, (however imperfect), circumscribed as it is by our human limitations, to do justice between the parties before the court. It is of the essence of justice and fairness that cases are decided on their merits. This imposes a duty on the trial judge to consider all the issues arising between the parties before deciding for or against any such party. When a trial court fails in this duty he has merely decided half the case and not the whole case: From the several cases I considered earlier on when a trial judge fails in his duty to make appropriate findings on all the issues of fact, an appellate court usually orders retrial. A non-suit produces the same effect. The plaintiff is thereby allowed to relitigate the issues in controversy. Broadly speaking therefore a non suit is a termination of an action which did not adjudicate all relevant issues on the merit, as where a plaintiff was unable to prove his whole case and it will be unjust to dismiss such case in its entirety or where there was a failure by the trial judge to make proper and specific findings and an appellate court can neither do the same on the printed evidence, there a rehearing or a non suit depending on the circumstances of the particular case, may be ordered:- Awote v. Owodunni (No.2) (1987) 2 N.W.L.R. (Pt.57) 366 at p.375. Chief Obiyemi described a non suit as a “a harsh, oppressive and irregular Order against the defendant”. This is quite a staggering and substantial submission to make. Our Rules of court specifically provided for an Order of Non Suit:-
“The court may……..non suit the plaintiff, where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the court.”
During the address on whether Non Suit will be the appropriate Order in this appeal, both Mr. Adegbesan and Chief Obiyemi each conceded that the trial court made no findings in his favour. In other words on the issue of title or trespass neither party emerged a winner. Neither was therefore entitled to the judgment of the court. It is exactly in such a situation that the Rules permit the court to enter a non suit. The only ridder to the Rule provided by Order 26 Rule 3 of the Rules in the Northern States and by various judicial decisions of this Court is that before such order is made the court will first give the parties the opportunity of being heard on the point” see Elemeny Ikoro v. Safrap (Nig.) Ltd. (1977) 2 S.C. 123 at p.127: Craig v. Craig (1966) 1 All N.L.R. 173 at p.177, (1967) N.M.L.R. 52 at p.55: Aigbe v. Edokpolor (1977) 2 S.C. 1 at p.17: Omoregbe v. Lawani (1980) 3-4S.C. 108at p.1I6. In the instant appeal both parties were asked and did address the court fully on the issue of the Order of Non Suit.
One cannot therefore agree with Chief Obiyemi that an order allowed by the Rules and in conformity with the surrounding circumstances of this case can ever be described as “harsh, oppressive and irregular”. There is no gainsaying it that an order for a non suit means giving the Plaintiff a second chance to prove his case. Normally and generally the courts do not favour this. But each case has to be considered in its peculiar setting. In this case a dismissal will wrong the Plaintiffs/Appellants and their grantees and vendees. I see no wrong that a non suit or a rehearing will inflict on the Defendant/Respondent except to take away from him an empty victory won, not on any findings of fact in his favour, not on the merits of his case, not on the true bearing of the law on the rights of the parties but by a slip or mistake on the part of the trial judge in concentrating wholly on the issue of boundaries and ignoring other equally relevant issues of title and possession which also called for a resolution. In deciding to order a non suit or a retrial the court has to see to it that no party is wronged. In this case it will be in the interest of both parties that their claims to the ownership of the land in dispute are properly investigated and appropriate findings made. This will do justice to the parties and adjudicative justice requires that, once evidence has been concluded in a case, the trial judge should come to a conclusion on the facts by making specific findings on specific issues. It is the sum total of those findings that will dictate whether he should give judgment for the plaintiff or for the defendant or enter a non suit. The question raised in Issue No.2 in the Appellants’ brief will be answered in favour of the Appellants. All the grounds urged under Issue No.2 thus succeed.
Can this court give judgment for the Plaintiffs/Appellants I guess not. During his address on the 2nd November, 1988 Mr. Adegbesan for the Appellants conceded that a non suit will be the appropriate order in this case. The failure of the trial court to make any findings on the traditional history of the Plaintiffs and on their acts of ownership and possession leaves this court with no foundation on which to posit a declaration in favour of the Plaintiffs/Appellants. This is Plaintiffs’ headache No.1.
There is another hurdle equally important – precise boundaries.
Issue No.1 as formulated in the Appellants’ Brief deals with the boundaries of the land in dispute, and is as follows:-
“Whether, having regard to the pleadings and the evidence adduced at the court below, the land in dispute could be said to be undefined, unascertained and equivocal.”
I think it is an elementary requirement of our land law that the first duty of any plaintiff claiming from the court a declaration of title to land is to show clearly the area of land to which his claim relates:- Akinola Baruwa v. Ogunshola (1938) 4 W.A.C.A. 195. This duty a plaintiff can discharge, either by describing the land with such particularity that a surveyor can from his description produce an accurate plan of the land:- Kwadzo v. Adjei (1944) 10 W.A.C.A. 274 or, by himself producing an accurate plan of the land showing precise boundaries. If the plan is inaccurate in the sense that the boundaries are imprecise or that the oral evidence does not tally with the details appearing on the plan, then the trial court will be justified in regarding such a plan as vague and unsatisfactory and again justified in refusing to find a declaration of title on such a plan: Udekwe Amata v. Udogu Modekwe & Ors. (1954) 14 W.A.C.A. 580. The reason for insisting on accurate plans is simply to enable the parties and other persons claiming through them to know precisely the area of land to which the judgment and orders relate:- Maberi v. Alade  (1987) 2 N.W.L.R. (Part 55) 101 at p.106. Enforcement of a judgment and order of injunction based on an inaccurate plan will create difficulties, untold difficulties. Where parties own land abutting a common boundary that common boundary will be shown with particularity and precision: Okorie & Ors. v. Udom & Ors. (1960) 5 F.S.C. 162 at p.166: Udofia & anor. v. Afia & ors. Andy v. Akpabio & ors. (1940) 6 W.A.C.A. 216. Another feature of our land law which has to be kept in view while considering Issue No.1 above is that where a party claims a specific area of land and can only prove title to a part of that area of land or where the defendant concedes part of the land claimed, the court can grant the plaintiff title to the area proved or conceded but if; and only if, that area is definite and can be easily hatched out of and excised from the total area claimed, see Abudu Karimu v. Daniel Fajube (1968) N.M.L.R. 151 and Anukwua & ors. v. Ohia & ors. (1986) 5 N.W.L.R. (Pt.40) 150 at p.161. Otherwise the declaration may be rightly refused.
One final preliminary point that I will like to stress, before considering the issue of boundaries in this appeal, is that boundaries of a land in dispute are facts to be established by relevant evidence and where a trial court has made specific findings on that evidence the attitude and scope and limit of interference with those finding will be governed and dictated by the general rules governing findings of fact by trial courts:- Okonkwo v. Adigwu (1985) 1 N.W.L.R. (Pt.4) 694 at p.699.
I will now proceed to consider Issue No.1 as formulated by the Plaintiffs/Appellants against the background of the various decisions of this Court on boundaries which I have stated above. In paragraph 3 of the Plaintiffs/Appellants Amended Statement of Claim the land in dispute is stated to be verged red in Plan No. JFO 6642 drawn by J.F. Ososami Licensed Surveyor. This plan was tendered in evidence as Ex. A. In Exh. A appear so many other areas obviously not belonging to the Plaintiffs viz:-
(i) Land of Ministry of Works and Transport
(ii) Moslem Cemetery
(iii) C.M.S. Cemetery
(iv) Bishop Philips Memorial Primary School
(v) Land of Bishop Olufosoye
It may well be that these areas were granted, sold or conveyed to their present owners by the Plaintiffs/Respondents but the fact remains that after divesting themselves of title to these areas of land they ceased to be the land of the plaintiffs. That alone is not sufficient to destroy the plaintiffs’ case Karimu v. Fajube & Ors. Supra. What is even worse is that no attempt was made in Ex. A to delineate the areas sold or granted as pleaded in paragraph 14 of the Amended Statement of Claim. It is thus not possible for any one to excise from the land verged Red in Ex. A the lands sold or conveyed by the plaintiffs to various people. Also in his evidence at p.111 lines 14-16 the Plaintiff, Abudu Akintujoye, deposed under cross-examination as follows:-
“The land on which the Ministry of Works and Housing is belonged partly to our farmily and partly to Idoko family.”
This is not reflected in Ex.A. The impression one gathers from Ex. A is that the entire areas occupied by the Ministry of Works lies inside the land in dispute. Again at p.111 lines 27-29 the 1st Plaintiff testified in Cross-examination:-
“……the parcel of land conveyed by the Idoko family to Chief Sasere Akinkugbe was not part of the land in dispute.”
If that parcel of land is the portion verged green in Defendant’s plan Ex.C (and there is every likelihood that it is, as both quoted similar feature as Ijapadeji Stream, Saw-mill, and land of Ministry of Works) then it will be utterly impossible to grant any declaration of title based on a plan as imprecise, as vague and as inaccurate as Ex. A.
Again the 2nd Plaintiff witness Adeyeye Akinsete in his evidence in Chief at p.119 lines 9 to 13 stated:
“South of our own land is also part of the Idoko family land separated from our land by the Ajapadiyeye stream. The land between Akure/Ondo road and Esungbin Stream does not belong to Oke Idoko family but to our family.”
The Ajapadijeye stream is shown on the Plaintiffs’ plan Ex.A. But the land on both sides of that stream is shown as belonging to the Plaintiffs. The land on which the Ministry of Works and Housing is belonged partly to our family and partly to Idoko family.”
The Ajapadijeye stream is shown on the Plaintiffs’ plan Ex.A. But the land on both sides of that stream is shown as belonging to the Plaintiffs. The southern boundary as described by Akinsete, p.w.2 is thus, at variance with the plan Ex.A.
It is thus clear that the evidence and oral description of the size and extent (not merely and solely location) of the land in dispute as given by Akintujoye (P.W.1) and Akinsete P.W.2 violently conflict with the Plaintiffs plan Ex.A. Confronted with this conflict the learned trial judge at p.169 observed:
“It is not the duty of the court to excise from a larger area of land the portion or portions of land to which the Plaintiffs are claiming title. A claim for title to land must not only be specific but must relate to an area sufficiently defined to enable the court “pin point” the area claimed otherwise the court will not grant a declaration of title ….. I will consider the omission to define the area of the land in dispute to be fatal to the plaintiffs’ case.”
I think the above is a correct statement of the law and I am in total agreement with the learned trial judge. The Court of Appeal was of the view that the consideration of the other issues in the case “must be predicated on the premises that the land in dispute between the parties is defined, ascertained and unequivocal.”
The court then continued at p.286 lines 27-30:-
“In the end he (the learned trial judge) still had to come back to the nagging question of the imprecise nature of the land in dispute between the parties. It was on this account that he dismissed the plaintiffs’ claim and in my opinion he was right to do so. “(italics ours)”.
I also agree with the Court of Appeal that no declaration of title can be made where the land in dispute is not properly defined easily ascertainable with precise boundaries. But the trial court’s failure to make findings on the issue of title and possession would have indicated to the Court of Appeal that justice would be met by a non suit or a retrial.
The Plaintiffs/Appellants in this case claimed a declaration, damages for trespass and an injunction. Such a claim should be tied on to a definite and specific area of land so that any enuring judgment for the plaintiffs may inform the defendants what the opinion of the court is as to the limits of their rights and not expose them in the exercise of such rights to the consequences of violating an injunction based on a plan like Ex. A which not containing precise boundaries leaves the land in dispute vague and imprecise. It is not for the Defendant/Respondent to find out what portions of Ex.A belongs to the Plaintiffs/Appellants and what portions do not. That is the first hurdle a claimant to land will clear i.e. to establish the precise area he is claiming.
The Appellants failed to clear this hurdle and normally their appeal should have been dismissed but for the fact that no findings were made on the issues of title based on the traditional evidence of the Plaintiffs and conveyance pleaded and testified to by the Defendant nor was any findings made on the question of possession claimed by both parties. It is only for the above reason that justice demands that both parties be given another chance to establish their claims.
In the final result and for all the reasons given above the trial court should have entered a non suit. This it did not do. The Court of Appeal should also have entered a non suit. This the Court of Appeal again did not do. I will allow this appeal and enter a non suit. I will make no orders as to costs.

NNAMANI, J.S.C.: I had the advantage of reading in draft the judgment just delivered by my learned brother OPUTA, J.S. C. I agree entirely with his reasoning and conclusions.
It cannot be said that the plaintiffs have failed in their case in toto. The main problem was of course that apart from filing their plan which showed the land in dispute, the plaintiffs by the evidence of the P.W.2 appeared to have included a land belonging to some other party in the area they were claiming. It would have been impossible in the circumstances for them to have title. I agree with my learned brother that the learned trial Judge was wrong in dismissing the plaintiffs’ claims, one of the grounds being that they claimed the areas which they had previously allocated to various persons. It is also clear from the case that the learned trial Judge did not resolve the evidence of traditional history or acts of possession raised by both sides. I think too that the justice of the case demands a non-suit rather than a dismissal of the plaintiffs’ case. I abide by all the orders made in my learned brother’s Judgment.

KARIBI-WHYTE, J.S.C.: I have had the privilege of reacting the judgment of my learned brother Oputa, J.S.C., just read. I agree entirely with the reasoning and that this appeal be allowed. I also agree with the order made therein that there should be a non-suit of the plaintiffs’ claim.
The appeal is against the judgment of the Court of Appeal Division, Benin City delivered on the 13th December, 1984. The Court of Appeal dismissed the appeal of the appellants against the judgment of the High Court of Ondo State sitting at Ondo which had dismissed the action of the Appellants, claiming against the Respondent, as follows-
1. A declaration of title under Native Law and Custom to all that piece or parcel of land situate lying and being at Okeobara, along Ondo/Akure Road, Ondo which is more particularly shown and verged Red in Plan No. JFO 6642 drawn by J.F. Ososami.
2. N1,000 being general damages for trespass.
3. Perpetual injunction restraining the Defendant, his servants, agents, and privies from committing further acts of trespass on the said land.”
Pleadings were filed and exchanged. The action was brought by the Plaintiffs in a representative capacity, for themselves and on behalf of Loduti and Ajaka family. The substance of the evidence of the Plaintiffs is that the land in dispute which is somewhere along Ondo/Akure road which originally belonged to Oba Ajilalu, the Osemawe of Ondo, devolved on his death on his son Loduti who later became head of the family. On the death of Loduti, his brother Ajaka became head of the family and inherited the land. Plaintiffs are the descendants of Loduti and Ajaka. Plaintiffs claim by right of inheritance and the exercise of acts of possession by farming the land and making grants to the Anglican Church and Moslem Community. The Defendant they claim is not a member of their family but has been selling portions of the land. The family of the Plaintiffs have made no grants of any part of the land to the Defendant.
In his evidence 1st Plaintiff described the boundaries of the land in dispute and that a foot-path from Surulere running northwards between the Anglican and Moslem cemeteries had been the boundary between his family land in dispute and that of Okedoko family adjacent to it.
On the other hand, the defendant claimed he bought the land in dispute from Chief Jomu Akinnawo, a member of the Idoko family and some other lands in the same area from Chief Jomu Akinnawo’s children. He denied selling any land on behalf of Chief Jomu Akinnawo. He was merely looking after some of the portions of the land for him. He was aware of the fact that resulting from a dispute in the Okedoko family the land was partitioned among its members including Chief Akinnawo.
In his judgment dismissing the claim of the Plaintiffs the learned Judge found on the evidence of the Plaintiffs that the area of the land claimed by them were uncertain, and included certain portions of land already alienated by them, as shown on Exhibit C. He held that the Plaintiffs were not entitled to a declaration to any of the portions of land in dispute already so alienated by their family. In the circumstances the Court was unable to determine with precision the area of the land in dispute in respect of which the plaintiffs may be entitled to a declaration of title and other reliefs sought in their claim. The learned Judge held that Plaintiffs were not entitled to the area of the land claimed as shown on Exhibit C. the plan which constituted the basis of their claim.
Again, the learned Judge held that Plaintiffs have failed to prove their claim by the strength of their own case. Their claim in substance was that defendant had trespassed on their land which belonged to the Loduti/Ajaka family. The case of the defendant was that the land was conveyed to him by Chief Jomu Akinnawo and his children after his death. The attempt of Plaintiffs to show that Chief Jomu Akinnawo was a member of the Loduti/Ajaka family failed when its own witness stated he was a member of the Okedoko family. The defendant established that the land belonged to Okedoko family to which Chief Jomu Akinnawo belonged. Finally the evidence of Plaintiffs was clearly contradictory of their plan filed and tendered in evidence.
The Court of Appeal, affirmed the judgment of the learned Judge on each of these grounds. On the position of the certainty of the land in dispute it held-
“…the position of the pieces of land actually in dispute between the parties is, to put it mildly, chaotic. Taking the opposing plans, Exhibit A and Exhibit C into consideration, one is bound to say that each of the parties was having on his mind something quite different from what the other had.”
The Court of Appeal went on to emphasise the imprecise nature of the land being claimed by the plaintiffs by referring to the evidence of the 1st plaintiff at p.112 of the record of proceedings in contradiction of the plan filed by plaintiffs – Exhibit C.
On the second ground of appeal that the learned Judge did not make findings of fact on all the issues joined, the Court of Appeal rejected the contention and held that the evidence was properly evaluated and that the conclusion that the precise nature and limits of the land in dispute was not established was right.
The Plaintiffs have appealed against this judgment. Two grounds of appeal have been filed. They are as follows –
1. The learned Justices of the Court of Appeal misdirected themselves in law when they said:
“However Chief Fawehinmi submitted that what the plaintiffs claimed’ was radical title to the land in dispute, through Loduti/Ajaka family, while the defendant claimed through the Idoko family. He submitted that what was in issue between the parties was the radical title to the land in dispute, and he cited two cases in support of this; Sanyaolu v. Coker & anor. (1983) 3 S.c. 124: And Abidu Karimu v. Fajube (1968) NMLR 151: It is clear to me that learned Counsel is mistaken about the point of decision in the two cases he has cited in relation to the case in hand. In those cases it was decided that the fact that the land claimed or a portion of it had been sold or alienated to a third party may not preclude a claim of radical title to it. But the fact still remains that the area so claimed must be clearly set out and defined. In Coker’s case, the areas of land claimed by the Cokers against Sanyaolu was well defined and unambiguous. In Karimu’s case, if the portions of land already sold to others were excised from the rest of the land in dispute, what was left was then the land in dispute. But in the instant case, the position of the pieces of land actually in dispute between the parties is, to put it mildly, chaotic. Taking the opposing plans, Exhibit ‘A’ and Exhibit ‘C’ into consideration, one is bound to say that each of the parties was having on his mind something quite different from what the other had.”
PARTICULARS OF ERROR
1. The fact that the plaintiffs’ plan of the area in dispute is disputed or controverted does not make the land in dispute undefined, unascertained and equivocal.
2. When paragraph 3 of the Amended Statement of Claim is read with paragraphs 3 and 4 of the Amended Statement of Defence, the identity of the land in dispute cannot be said to be chaotic and undefined since what was in issue between the parties was the ownership or rather the root of title of the parties to the land in dispute.
2. The learned Justices of the Court of Appeal erred in law in dismissing the appeal without considering ground 2 of the Grounds of Appeal and without exhaustively considering ground 1 of the Grounds of Appeal which if they were considered the appeal ought to have been sustained.”
The issues for determination arising from the grounds of appeal as formulated by counsel to the appellants is as follows:-
“1. Whether, having regard to the pleadings and evidence adduced at the Court below, the land in dispute could be said to be undefined, unascertained and equivocal.
2. Whether the Grounds of Appeal not considered by the Court of Appeal were material to an effective determination of the issues before it, and whether if considered, the grounds would have had any profound effect on the final decision”
Respondents’ counsel has formulated slightly different issues which are as follows-
(a) Whether the appellant is entitled to judgment (in view of) the pleadings filed, evidence adduced and the plans filed and tendered showing the extent, features and description of the land in dispute which the TWO LOWER courts have found to be inaccurate, undefined, unascertained, equivocal and chaotic.
(b) Whether in view of the Court of Appeal decision as to the identity and extent of the land in dispute…………
it was necessary to consider other subsidiary aspects the determination of which is not likely to affect the judgment or tilt the scale in favour of the appellants.”
In the interest of clarity and proper consideration of this appeal, I prefer and will rely on the formulation of the issues by counsel for the appellants which more accurately accentuates the issues. Since the central issue for dismissing the plaintiffs’ claim in the Court of first instance and the appeal in the Court of Appeal was on the uncertainty of the limits of the land in dispute, it is important to consider the effect on the case as a whole of the failure to establish that fact as against other issues raised in the pleadings.
Counsel for the Appellants and for the Respondents relied on their briefs of argument, although they elaborated on certain areas in their oral presentation of their arguments.
It was submitted on behalf of the Appellants that the fact that the plan of the area in dispute was disputed by the Respondent did not render the land in dispute undefined, unascertained and equivocal. It was argued that paragraph 3 of the amended Statement of Claim, read together with paragraphs 3 and 4 of the amended statement of defence clearly shows the identity of the land in dispute. Conceding that respondent’s contention that the appellants’ plan is “inaccurate and deficient in vital details” it was submitted that the assertion by the Court of Appeal that “……..the position of the pieces of land actually in dispute between the parties is, to put it mildly, chaotic is wrong and not borne out by the pleadings, and the evidence before the trial court. Counsel submitted that where the identity of the land in dispute is known to the parties, as in this case, no plan of the land was necessary. The cases of Atolagbe v. Shorun (1985) 1NWLR. (Pt.2) 360, 373 Etiko v. Aroyewun (1959) 4 FSC. 129. Arabe v. Asanlu (1980) 5 -7 SC. 78. 89. In the instant case the location, identity of the land were not in dispute. Counsel submitted that since issues were not joined on the location and identity of the land, in dispute, the trial Judge and the Court of Appeal ought to have found for the Appellants. In answer to the above submissions, Counsel for the Respondent submitted that it was the duty of Appellants who is asking for a declaration of title to show clearly the area to which his claim relates, and must fail if this is not ascertained. The boundaries of the land in respect of which injunction is sought must also be clearly defined. Counsel relied on Epi & Epi v. Aigbedion (1972) 10 S.C. 53. Counsel further submitted that there have been concurrent findings in the two courts below on the issue of the identity of the land which has been held to be uncertain, equivocal, inaccurate, undefined, unascertained and chaotic and appellants must make a good case to enable this court to interfere with such concurrent findings of facts. The cases of Lokoyi v. Olojo (1983) 2 SCNLR 127, Chinwendu v. Mbamali (1980) 3-5 S.C. 31 at p.83; Ibodo & ors. v. Enarofia (1980) 5-7 S.C. 42 at 55 were among numerous other cases cited and relied upon.
I am inclined to agree with the submission of counsel to the appellants that issues were not joined in this case in respect of the location and identity of the land in dispute. It was therefore not necessary for appellants to lead evidence in respect thereof – See Ehimare & anor v. Emhonyon (1985) 1 N.W.L.R. (Part 2) 177. What respondent would seem to me to have disputed is the accuracy of the plan of the Appellants. For instance in paragraph 4 of the statement of defence, respondent averred as follows:-
“that a great part of the land in dispute is correctly and fully described and delineated on a survey plan No.FD/0/2 drawn and signed by A. O. Adebogun licensed Surveyor, and is hatched with RED and further avers that the plaintiffs have no interest title or claim whatsoever to the area so hatched with RED.”
The area hatched RED as described above is the same as the land verged RED in plan No. JFO 7742 and measures 166.38 acres in paragraph 3 of Appellants’ statement of claim. There is therefore obviously no uncertainty in the location and identity of the land in dispute. See Omeregie & ors. v. Idugiemwanye & ors. What would appear to me in dispute is the precise boundaries and limits of the claim of the plaintiffs as disclosed by the evidence of plaintiffs’ witnesses. This is because there was a clear discrepancy between the boundaries claimed in the plan filed and the evidence of the witnesses. The question however is whether issues were joined in the pleadings in respect of these matters My answer is that it was not. For appellants to succeed in an action for declaration of title it is essential that the precise boundaries and limits of the area to which title is claimed ought to be stated with sufficient clarity. And this is even where the location and identity of the land in dispute is not in dispute. This is merely affirming the proposition in Kwadzo v. Adjei 10 W.A.C.A. 274 Sobanjo v. Oke 14 W.A.C.A. 593 and Epi v. Aigbedion (1972) 1 All NLR. (Pt.2) 370 that where the identity of the land is not in dispute absence of a plan of the land is not fatal to the claim for a declaration of title.
It seems obvious from the judgments in the Courts below that one of the reasons for dismissing the claim of the plaintiffs/appellants was that the courts held that the identity of the land was uncertain, equivocal, inaccurate, undefined, unascertained and chaotic. There is clearly no basis for such a holding since no issue was joined with respect thereto.
However, appellant claiming a declaration of title must establish the boundaries to which the title relates. It is in this regard that the evidence of the plaintiffs before the trial Court is sadly lacking in cogency. As was submitted by counsel to the respondents the evidence of 1st plaintiff was that the land conveyed by the Idoko family to Chief Sasere Akinkugbe was not part of plaintiffs’ land in dispute, but that land lies within the land in dispute and so delineated in Exh. A, Again, although the evidence is that plaintiffs’ land is separated from Idoko family land by Ajipajiyeje stream, but the plan filed, Exhibit A shows that plaintiffs’ land is both in the north and south of the Ajipayeje stream and the stream is wholly within plaintiffs’ land, I now turn to the second issue for determination whether the grounds of appeal not considered by the Court of Appeal were material for an effective determination of the issues before it, and whether if considered, the grounds would have had any profound effect on the final decision
Counsel to the appellants had in his brief of argument listed the matters on which issues were joined by the parties in their pleadings and submitted that the Court below did not advert to these issues. Referring to the two grounds of appeal filed in the Court below, the following issues were said to follow from these grounds –
(a) Whether the Plaintiffs or the Defendant or his predecessor in title sold land or granted leases as claimed in paragraph 14 of the amended statement of claim and contradicted in paragraphs 14 and 15 of the Amended Statement of Defence
(b) Whether or not Loduti and Ajaka family established its radical title as based on traditional history evidence.
(c) Whether or not Loduti and Ajaka family established ownership of the land in dispute by the exercise of acts tantamount to ownership like selling and leasing parts of the land in dispute as pleaded in paragraph 14 of the amended statement of claim,
(d) Whether or not the Defendant has been trespassing on the land in dispute by leasing and selling parts of the land to strangers as claimed in paragraph 13 of the Amended Statement of claim.
(e) What effect Exhibits ‘F’ and “G” have on the plaintiffs’ claim in relation to the land in dispute or part thereof
(f) Whether or not the plaintiffs proved possession in relation to the land in dispute and were therefore entitled to sue in trespass.
(g) Whether or not Exhibits “D”, “E” and “H” established the radical title claimed by the Defendant in view of the defect in them.”
It is obvious from what has already been said in this judgment that neither the learned trial Judge before whom evidence was led, nor the Court of Appeal before whom the record of proceedings containing the evidence was argued, considered the issues, or evaluated the evidence in respect of these issues. It is necessary to point out that in an action for a declaration of title, the issues relating to traditional history, exercise of acts of ownership and possession of the land in dispute are invariably relevant and essential to the determination of the claim. Hence where in the determination of the claim such issues whose determination are likely to affect the result of the litigation between the parties arc not resolved, the issues between the parties would appear not to have been determined. See Ebamawo v Fadiyo (1973) 1 All NLR. 134, Welli & ors. v. Okechukwu & ors. (1985) 2 N.W.L.R. (Pt.5) 63. Mogaji & Ors. v. Odofin & Ors. (1978) 4 S.C. 91 at 93-94.
The learned trial Judge had not considered the question of title despite evidence before him. It was difficult to appreciate how the Court below came to affirm the judgment without itself evaluating the evidence which was before the Court. Faced with this situation in which there was no finding as to title in the Appellants, or the Defendant/Respondent, this Court invited the parties to address it on the question of Non-Suit.
Mr. Adegbesan for the Appellants submitted that having not failed intoto, and the real issue being the precise boundaries, an order of non-suit will be the appropriate order. Chief Obiyemi, submitted that a non-suit is by itself a harsh oppressive and irregular order against the defendant. He however conceded a non-suit is usually considered where the plaintiff has not failed intoto. He argued that in this case the plaintiff had failed completely.
I think counsel to the respondent has ignored the fact that the Court has not considered the crucial issues relating to title, namely the traditional history, acts of ownership and possession without which the declaration claim cannot be properly determined. The appellant cannot be regarded as having totally failed where no findings have been made on such issues.
Again, there is evidence before the Court that Respondent has conceded title to the Appellants in respect of portions of the land in dispute. Similarly the Appellants have conceded portions to the Respondent. It is therefore obvious that appellants are not entitled to the whole of the land shown on the plan Exhibit A. as the land in dispute. It is therefore not possible on the evidence to excise the precise portion to which appellants would on the judgment be entitled. But this is not sufficient to enable the dismissal of appellants’ claim.
This is because since there were no findings on the evidence adduced by appellants on the land in dispute, it would be wronging them to dismiss their claim; even if they are not entitled to judgment on the evidence. A non-suit does no harm to the Respondent who had no title or interest in that portion of the land – See Onwunalu & ors. v. Osademe (1971) 1 All NLR. 14. Since there is no concurrent findings of facts on the salient issues of traditional history, exercise of acts of ownership and possession, no injustice will be caused by setting aside this appeal and ordering a non-suit.
It is for the above reasons and for the fuller reasons in the judgment of my learned brother Oputa, J.S.C. and Agbaje, J.S.C. that I allow this appeal.
I enter an order of non-suit against the plaintiffs/appellants. I abide by the costs awarded in the Judgment of my learned brother Oputa, J.S.C.

AGBAJE, J.S.C.: I have had the opportunity of reading in draft the lead judgment of my learned brother Oputa, J.S.C. I agree entirely with him that the appellants’ appeal has merit and that it be allowed. I also agree with him that the plaintiffs, the appellants, be non-suited.
In an Ondo High Court holden at Ondo the plaintiffs sued the defendant claiming:
“(1) A DECLARATION OF TITLE UNDER NATIVE LAW AND CUSTOM to all that piece or parcel of land situate lying and being at OKEOBARA, along Ondo/Akure Road ONDO which is more particularly shown and verged Red in Plan No. JFO 6642 drawn by J. F. OSOSAMI.
(2) N1,000.00k being general damages for trespass.
(3) PERPETUAL INJUNCTION restraining the Defendant, his servants, agents, and privies from committing further acts of trespass on the said land.”
Pleadings were ordered filed and delivered. In para 3 of the plaintiffs’ amended statement of claim the identity of the land in dispute was pleaded as follows:-
para. 3. “The land in dispute (i.e. the land the subject- matter of this action) is all that piece or parcel of land situate, lying and being at OKEOBARA along Ondo/Akure Road ONDO which is more particularly shown and edged or verged Red in Plan No. JFO 6642 drawn by J. F. OSOSAMI Licensed Surveyor and is the land being claimed by the Plaintiffs for themselves and on behalf of LODUTI AND AJAKA FAMILY. The said Plan is attached to and filed with this Statement of Claim.”
It follows that the identity of the land in dispute according to the plaintiffs who are making the claims to which this action relates has been clearly shown on the plan pleaded which was later put in evidence as Exh.A.
The plaintiffs further plead that they are entitled to their claim because of the following averments in their amended statement of claim:
para. 4 “The land in dispute forms portion of land which belonged absolutely very many years ago to one JILALU who was once the OSEMAWE OF ONDO several years ago.
5. JILALU exercised full rights of ownership on the said land by cultivating part of the land as farm and through his agents or servants.
6. Jilalu had two Children namely LODUTI AND AJAKE.
9. After the death of JILALU several years ago Loduti and Ajaka inherited the land (including the one in dispute) under native law and custom as Loduti and Ajaka family land.
II. During their life-time, Loduti and Ajaka farmed on the family land (including the one in dispute) by planting Kolanuts, Cocoa, Palm-trees, Mango, etc.
12. Plaintiffs are representatives of Loduti and Ajaka family.
13. The years ago a Sign-board bearing the name of the family on the land in dispute and the family has been cultivating their land (including the land in dispute as farmland for several years.
14. The Plaintiffs’ family (LODUTI and AJAKA FAMILY) granted part of the land in dispute to C.M.S. Church and the Muslims to be used as Cemetery and several Plots were sold to purchasers e.g. G. O. Akinfolarin, Ekemode, Rogers, Awosika and some others. A portion of the land in dispute was also granted as a lease to Bishop Olufosoye a member of the Plaintiffs’ family.”
The defences of the defendant to the plaintiffs’ claims against him are contained in the following portions of his statement of defence.
para. 3. “With regard to paragraph 3 of the amended Statement of Claim, the Defendant admits that the land in dispute is situate at Oke-Obara along Ondo/Akure Road, Ondo, that the land in dispute is edged and verged RED in Plan No. SFO. 6642, but the Plan is inaccurate and deficient in vital details.
4. The defendant states that a great part of the land in dispute is correctly and fully described and delineated on a Survey Plan No. FD/0/2 drawn and signed by A.O. Adebogun Licensed Surveyor, and is hatched with RED and further avers that the Plaintiffs have no interest title or claim whatsoever to the area so hatched with RED.
5. The Defendant denies paragraphs 4,5,6,7,8,9,10,11 of the amended Statement of Claim and states that the sketch of the traditional history contained in those paragraphs does not apparently arise, having regard to the Judgments affecting Okeobara including the land in dispute.
6. The Defendant denies paragraphs 12, 13, 14, 15, 16, 17, 8 of the amended Statement of Claim and puts the Plaintiffs to the proof thereof.
19. The Defendant avers that if and when he is on the land in dispute as delimited on the Defendant’s Plan, he is on the land as a lawful purchaser from the legitimate and proper owners of the land, or very infrequently as the specific agent of them and he states that the land in dispute as delimited in the Defendant’s Plan does not belong to the Plaintiffs’ Family or the Plaintiffs.
20. The Defendant will rely on all the proceedings and judgments referred to above in and other relevant documents in furtherance of his defence.”
Both sides led evidence along the lines indicated in their respective pleadings at the trial of the case before Afonja J. who in his judgment in the case given on 31st July, 1979 dismissed the plaintiffs’ claims for the following reasons in his own words:
“The whole area of land claimed by the plaintiffs is edged Red on Exhibit C. According to the evidence adduced by the plaintiffs, this area included certain portions of land sold or granted by the plaintiffs’ family to Chief Oyegba Adetula, Chief Sasere Akinkugbe, Archbishop Olufosoye, the Anglican and Moslem Missions (which pieces were since being used as cemeteries) and other grantees like Akinfolarin, Rogers, Boyejo Ekemode Awosika and Akinlosoye. The said parcel of land also included the portion of the land occupied and shown on Exhibit C as “Land of Ministry of Works and Transport” which according to the plaintiffs, was acquired compulsorily by the Government and the area edged violet on Exhibit C conveyed by the plaintiffs to Chief Akinkugbe. I find myself in agreement with the submission of the learned Counsel for the Defendant that, having regard to paragraph 14 of the amended statement of claim, those portions of the land in dispute already granted to various persons or bodies by the plaintiffs’ family before this suit was instituted no 13 longer remained vested in the family. In other words, the plaintiffs, by the grants, had stripped themselves of the title to those portions of land when they, of their own volition, transferred their title in each of them to someone else. A conveyance or grant under the English Law or in Native Law and Custom exhausts the right or title of the Vendor unless there is evidence to the contrary. See Kabiawu v. Sule Alabi Lawal (1965) 1 All NLR 329. As a result, the plaintiffs are not entitled to seek a declaration of title to any of the said portions of the land in dispute already granted or conveyed by their family to the various parties mentioned above.
I consider this omission to define the area of the land in dispute to be fatal to the plaintiffs’ case. This is more so on the evidence that the plaintiffs are clearly not entitled to the area of land claimed as shown on Exhibit C, which plan, no doubt, constituted the basis of the plaintiffs’ claim.”
The learned trial Judge having so to say, held that the plaintiffs’ claim must fail for the above technical reason proceeded to say that he would none the less consider the merits of their claims. However all he did in this regard is as follows:-
“The plaintiffs’ claim in substance was that defendant trespassed on the land in dispute which belonged to the Loduti/Ajaka family.
The defendant’s case in defence of the claim was that the land in dispute was conveyed to him partly by Chief Jomu Akinnawo and partly by the children of Chief Jomu Akinnawo after their father’s death.
The plaintiffs sought to establish through the 4th PW the Sasere Idoko, Chief James Olajide Akingbohungbe that Chief Jomu Akinnawo was a member of the Loduti/Ajaka family, and that if the said Chief Akinnawo did in fact sell the land or portion thereof to the Defendant, he had done so without the authority or consent of other members of Loduti Ajaka family. I must mention however that none of the plaintiffs stated in evidence that Chief Jomu Akinnawo was a member of their family, nor was this piece of evidence averred in their pleadings. On the other hand, the defendant and his witness went at length to show that Chief Jomu Akinnawo was a member of the Okedoko family, and tendered Exhibits D-H in support of their pleadings to establish, not only that the Okedoko family to which Chief Jomu Akinnawo belonged was not the same family as the Loduti/Ajaka family, but also that there had been previous litigations in relation to the land now in dispute or part thereof between one member of the Okedoko family and another member of the Loduti/Ajaka family.”
The learned trial Judge having considered the pleadings and the evidence in respect of the above contention then came to the conclusion that Loduti/Ajaka family was not the same family as the Okedoko family.
The learned trial Judge then held as follows:-
“In view of the foregoing and my earlier findings above on the plaintiffs’ plan as being undefined for the purpose of claim, I hold that the plaintiffs have failed to establish their ownership or possession of the land in dispute against the Defendant.
‘In view thereof, the first and second legs, of the plaintiffs’ claim fail.’
He then proceeded to dismiss the plaintiffs’ claims in their entirety.
It is evident that nowhere in his judgment did the learned trial Judge consider, let alone pronounce on, the evidence as to traditional history or acts of ownership adduced by the plaintiffs. And it appears clear too to me that the finding by the trial Judge that Okedoko family, from whom the defendant claimed he derived his title and Loduti/Ajaka family, to which the land in dispute belonged according to the plaintiffs, ‘are not one and the same family will not conclude this case on the merits against the plaintiffs. For, in view of the maxim nema dat quod non habet if the plaintiffs’ contention were correct the defendant would have acquired no valid title or interest in the land in dispute which he could set up against the plaintiffs’ claim. This is all the more so when there was no finding by the trial Court that the land in dispute belonged to Okedoko family.
It is evident that the plaintiffs’ claims have failed essentially because the plaintiffs had not by evidence established the precise boundaries of the land to which their claims relate.
It is, however, my view that the plaintiffs had by Exhibit A, the plan of the land in dispute, shown precisely the identity of the land to which the claim for title related and the boundaries of that land were shown and were ascertainable from that plan. In Kwadzo v. Adjei 10 W.A.C.A. 274 it was held that before a declaration of title to land was given the land to which it related must be ascertained with certainty, the test being whether a surveyor could from the record produce an accurate plan of such land. In the instant case there is an accurate survey plan of the land in dispute. In the circumstance, it cannot be said correctly that the claims of the plaintiffs relate to land which cannot be ascertained with certainty. It is however a different matter whether or not on the evidence the plaintiffs were entitled to the reliefs sought.
The plaintiffs appealed unsuccessfully against the decision of the trial court to the Court of Appeal Benin Division. That court dismissed the plaintiffs’ appeal solely for the technical reason the trial court gave for holding that the plaintiffs’ claims must fail. This is evident from the following passage from the lead judgment of Ete, J.C.A. in which Eboh and Okagbue JJ.C.A. concurred.
“This question of uncertainty of the areas of land claimed by the plaintiffs is further illustrated by the evidence of the 2nd plaintiffs’ witness, Adeyeye Akinsete who claimed to be, not only a member of the Loduti/Ajaka family but its chairman and head for the past ten years. At page 119 of the proceedings he said inter alia:
“South of our own land is also part of the Idoko family land separated from our land by the Ajapadiyeje Stream.”
Yet in Exhibit ‘A’ the land north and south of Ajapadijeye stream is wholly within the land claimed by the Plaintiffs. It is clear that the plaintiffs are confused as to the extent and boundaries of the land they are claiming and which is in dispute. The learned Judge held this view and relying on the case of Udofe v. Aqusisua (1973) 1 S.C. 119 in which Udofia v. Afia 6 W.A.C.A. 216 was cited with approval, held that the plaintiffs had failed to establish the identity of the land they were claiming. It is my view that on the state of the pleadings, and the evidence before the court, the plaintiffs failed to prove their claim to the land as shown in their plans Exhibits ‘A’ and ‘B’……..
For my part it is clear to me that the application of the ratio decidendi in all the cases cited by learned Counsel for the appellants is and must be predicated to (sic) premises that the land in dispute between the parties is defined, ascertained and unequivocal.
The learned Judge, rightly in my view, found as a fact that this was not so in this case. Even so he did a very creditable job of analysing and evaluating the evidence of both parties. In the end he still had to come back to the nagging question of the imprecise nature of the land in dispute between the parties. It was no (sic) this account that he dismissed the plaintiffs’ claim and in my own opinion he was right to do so.”
This is a further appeal by the plaintiffs against the dismissal of their claims.
Before us, both in the plaintiffs’ brief of argument and in oral submissions on their behalf by their counsel, it is contended that both the trial court and the lower court, the court of appeal, were wrong for dismissing the plaintiffs’ claims for the identical reasons both courts gave for doing so which I have already stated. The point was also made on behalf of the plaintiffs that it cannot be correctly said that the identity of the land in dispute and its boundaries were not clear, for, according to counsel for the plaintiffs, a plan of the land in dispute was pleaded and tendered in evidence. And since the onus was on the plaintiffs to show the precise boundaries of the land in dispute, it was further submitted that that onus had been discharged by the plan Exh. A, regardless of whatever notion the defendants might have about the land in dispute as reflected in their pleadings and the plan they put in evidence. Counsel for the plaintiffs drew the attention of this court to the fact that the trial court made no findings on the evidence as to traditional history and acts of ownership put by the plaintiffs before him and then submitted that there is no question of concurrent findings of fact by the two lower courts in this appeal.
Counsel for the defendant submitted that both the trial court and the court of appeal were right in their decisions and for the reason they gave and that we are now faced by concurrent findings of fact which must not be disturbed except in exceptional cases which according to counsel is not so here.
I have said earlier on in this judgment that because of the plan Exh. A, the identity and the boundaries of the land in dispute have been proved in evidence. So, it cannot in my view be rightly said in the instant case that the plaintiffs’ claims must be dismissed because as was stated in the leading case on the point, Baruwa v. Ogunshola 4 W.A.C.A. 159 the plaintiffs have failed in their first duty in a claim of declaration of title to land of showing clearly to court the area of land to which their claims relate.
If this were all to be considered on the point at issue I would have held unhesitatingly that both the trial court and the court of appeal were wrong in holding, in limine, that is without considering the evidence as to traditional history and acts of ownership, that the plaintiffs were not entitled to judgment on the claim for title to land. But it is not. There is the concession in the evidence for the plaintiffs which was highlighted in the judgment of the court of appeal in this case that the plaintiffs have included within the land in dispute as shown on their plan Exh. A, land which admittedly belongs to another family. Because of this, it is clear that the plaintiffs are not entitled to title to the whole of the land shown on the plan Exh. A, as the land in dispute. And since that land included in the land in dispute has not been delineated on the plan Exh. A, there is no way it can be excised from the land in dispute in order to determine the precise area of part of the land put in dispute by the plaintiffs to which on the evidence they might or might not be entitled to judgment.
It is for the above consideration that I am satisfied that both the trial court and the lower court, the Court of Appeal were right in holding without any further consideration of the evidence in this case that the plaintiffs cannot possibly succeed in their claims.
On the authority of Karimu v. Fajube 1968 NMLR 151, it appears to me that the mere fact that a plaintiff include in the land, in respect of which he is seeking a declaration of title, land which he has already sold or otherwise disposed of is no ground for dismissing his claim to title to the whole land. For the various dispositions could be regarded as acts of ownership. The trial Judge in this case thought otherwise. I am satisfied he was wrong in that respect.
However when it came to the consideration of the proper order to be made following the failure of the plaintiffs’ claims in the circumstances stated above by me I was not sure that the dismissal of their claims by the trial court which was endorsed by the court of appeal was right. I entertained the notion that a non suit in the circumstances might be the proper order to be made. My learned brothers had the same notion. So we called for further addresses on the issue of non suit in keeping with the decisions of this court that before coming to a decision on the point there must be addresses from counsel in that regard. See for instance Craig v. Craig 1967 N.M.L.R. 52.
Further addresses were taken on the point of non suit on 2/11/88. It was the submission of counsel for the plaintiff that a non suit was the proper order in the circumstances of this case because (1) it cannot be said that the plaintiffs’ claims to the whole of the land in dispute have failed in toto and (2) it will be wronging the plaintiffs to dismiss their claims as there were no findings on the evidence adduced by them on the portion of the land in dispute to which they could be entitled to judgment and (3) a non suit will not be wronging the defendants since there was no finding in this case that they had any title to or interest in that portion of land. Reliance was placed on the following cases Onwunalu & ors. v. Osademe (1971) 1 All N.L.R. 14 at 17 and Craig v Craig (supra.).
For the defendants it was submitted that a dismissal of the plaintiffs’ claims was the proper order since the plaintiffs have failed to prove their case and that they should not be given a second chance to prove their case. The following cases were cited in support. Anyakwo v. A.C.B. 1976 1 All N.L.R. C Volume 1144, at 163. Amata v. Modekwe (1954) 14 W.A.C.A. 580 and George v. U.B.A. Ltd. (1972) 1 All N.L.R. Volume 2 347 at 366.
I have no doubt that it cannot be said in the circumstances of this case that the plaintiffs have failed intoto in respect of their claim to the whole of the land in dispute. They failed only in respect of a portion thereof. There was no finding either way on title to the rest of the land on the evidence before the trial court. On their evidence if accepted the plaintiffs could be owners of that land to the exclusion of the defendant. So in my judgment it will be wronging the plaintiff if their claims were dismissed now. On the other hand, it will not be wronging the defendant if the plaintiffs were non suited for there was no acceptance or rejection for that matter of the defendant’s evidence as to title in this case. For the ground upon which the trial court found for the defendant on the merit is not, as I have earlier on shown in this judgment, valid. There is equally no question of concurrent findings of fact on the salient points in this case namely traditional history and acts of ownership, as I have shown also earlier on in this judgment.
It is for the above reasons and the fuller reasons given in the lead judgment that I will allow the appellants’ appeal, set aside the judgment of the trial court and that of the Court of Appeal dismissing their claims. In their place I will enter an order non suiting the plaintiffs. I abide by the order as to costs in the lead judgment.

WALI, J.S.C.: I have been privileged to read in advance the lead judgment of my learned brother, Oputa, J.S.C. I agree with his reasoning and conclusion that the appeal has merit and ought to succeed: and for the same reasons ably stated in the lead judgment which I hereby adopt as mine, I allow the appeal, set aside the decisions of the trial court and the Court of Appeal respectively and in substitution therefore, I enter the order of non-suit for the appellants. I abide by the order as to costs made in the lead judgment.
Appeal Allowed.
Non-suit ordered.

 

Appearances

O.A.B. Adegbesan (with him, Bode Odetoyinbo and Miss Dupe Fasan) For Appellant

 

AND

Chief A.O.A. Obiyemi (with him A.O. Akinbolore) For Respondent