The proceedings leading to this appeal were first initiated on the 14th day of February 1984 in the High Court of Justice of Oyo State of Nigeria, Holden at Ibadan. In that court, the plaintiff, Chief S.D. Akere, now deceased, instituted an action against the defendant claiming as follows:

Pleadings were ordered in this suit and were duly settled, filed and exchanged. The case accordingly proceeded to trial and the parties testified on their own behalf and called witnesses.

The plaintiff’s case as pleaded and testified to is based on sale under customary law. He purchased the land in dispute some time in 1971 from the Ayoade family through one Aderinola Ejide Ayoade, the then oldest member of the Ayoade family. Her ancestor, Akintunde was said to have acquired the land by first settlement after the Kiriji war.

Aderinola Ejide died before the institution of this action. However, her son, Raimi Aiki, who testified as P.W.6 in this suit confirmed that his mother, Aderinola Ejide, sold part of the land originally settled upon by Akintunde and comprising the land in dispute to the plaintiff. P.W. 6 explained that he joined in the execution of the agreement, Exhibit A, described as a purchase receipt in respect of this sale of the land in dispute by his mother, Aderinola Ejide to the plaintiff. The plaintiff bought the land in dispute for the sum of £1,250.00 and had since been in peaceable possession thereof through his caretaker, P.W. 5

Some time in 1983, the defendant without the leave and/or licence of the plaintiff invaded the land in dispute and bulldozed it. She further erected a wall fence thereon and dug a foundation on the land preparatory to the erection of a building thereon. Despite repeated warnings, the defendant continued her acts of trespass on the land hence this action.

The defendant, for her part, claimed that she purchased the land in dispute some time in 1977 from the Akinbode family whose ancestor was said to have settled on the land before the Kiriji war. The traditional history of the land was related to D.W.I, Busari Adekunle, who traced how ownership of the land in dispute descended by inheritance from Akinbode down the line to one Lawani Ayoade. The defendant bought the land under customary law for the sum of N3,700.00 from Lawani family. She duly paid the said purchase price and was issued with a receipt. She also went into possession of the land and dug a foundation preparatory to the erection of a building thereon. She had since applied for and was granted a certificate of statutory right of occupancy in respect of the land in dispute by the Governor of Oyo State.

At the conclusion of hearing the learned trial Judge, Adamakinwa J, after a meticulous review of the entire evidence on the 28th day of January, 1988 held as follows:

“As things are, it is my view that the Plaintiff’s claims fail in their entirety, but I am not convinced that the proper order to make in the circumstances wherein the Plaintiff has substantially established his interest in the land but has only failed to properly identify the boundaries thereof is one of dismissal. I believe that an order of non-suit will be appropriate in the circumstances, but I would like to hear learned counsel on both sides in this regard.”

Having taken the addresses of counsel on the appropriate order to make, the learned trial Judge concluded thus:

“I am convinced that an order of non-suit would be more appropriate in the circumstances so as not to permanently deprive the Plaintiff of his established interest in the whole area claimed. The Plaintiff is accordingly hereby non-suited in this case.”

It is evident that the learned trial Judge was obliged to non-suit the plaintiff for the sole reason that he considered the boundaries of the land in dispute not established. Said he:

“Be that as it may, as I have earlier observed the boundaries of the land as purchased by the Plaintiff in 1971 have not been properly identified. I am therefore not satisfied that the Plaintiff is entitled to the order for declaration sought. Similarly, although the claim for trespass is based on possession of the land and need not necessarily be tied to the success of the claim for declaration of title, there would still be the difficulty of identifying what area of land the Plaintiff has been exercising possession over, where the boundaries thereof have not been properly identified. On this ground too, the claim for trespass must fail. And, of course, an order for injunction cannot also be made in respect of an area whose boundaries are not properly identified.”

Earlier on in his judgment, the learned trial Judge had queried:

“I would prefer the evidence of the 6th P.W. (Which is in line with the pleadings) that Bello Ajileye bought portion of the land originally settled upon by Akintunde. But the question still arises as to what portion of the land originally settled upon by Akintunde was sold to Bello Ajileye and what portion of it was sold to the present Plaintiff. As had been earlier mentioned, the 6th P.W. merely stated that the boundaries of the land sold to the Plaintiff were delineated by cutting down the edges as the plaintiff was being put into possession.”

Dissatisfied with this judgment of the trial court, the plaintiff lodged an appeal against the same to the Court of Appeal, Ibadan Division. The Court of Appeal in a unanimous decision on the 26th March, 1993 allowed the appeal and entered judgment for the plaintiff as claimed but with the award of damages for trespass to the plaintiff against the defendants was assessed at N250.00.

Aggrieved by this decision of the Court of Appeal, the defendant appealed to this court.