ATOLAGBE V. SHORUN : THE DECIDENDI

‎The Facts The Parties are customary tenants of Ojora Chieftaincy Family. The land in dispute is at Ezeagwu Street, Ojo Road, Ajegunle, Apapa, Lagos State. The dispute is about which of the parties is rightly entitled as grantee to the land in dispute . The respondent /plaintiff claimed damages for trespass to the land in dispute which he possessed and the defendant / appellant demolished respondent 's/plaintiff's building on the land and then erected his own building.  Both parties tendered plans of the land and they were marked exhibits "A" and "F" but they were not counter signed by the Surveyor-General. That Notwithstanding, the identity of the land was not in doubt. Disregarding the issues joined by the parties in their pleadings, the trial judge dismissed the plaintiff's / respondent 's claim for trespass and injunction which the Court of Appeal unanimously granted. On appeal to the Supreme Court, the defendant / appellant raised the issue of identity of the land in dispute ; the competence of the Court of Appeal to re-evaluate the evidence and to ignore the findings of fact of the trial court ; and the availability of perpetual injunction to the respondent in the pleadings and evidence.  ‎ RATIO DECIDENDI  The identity of the land in dispute was known to the parties and not in dispute ; consequently no plan of the land was necessary as it is not always that a plan is necessary in a land case or that the absence of a plan is fatal to the plaintiff's claim if proper description of the land is available in the proceeding. See Etiko v. Aroyewun (1959) SCNLR 308; Arabe v. Asanlu (1980) 5-7 SC 78. Pursuant to section 3(1)(b)(ii) of the Survey Law of Lagos State, a plan which is not counter signed by the Surveyor - General is inadmissible.  Unless a specific allegation of fact is traversed specifically, a pleading that the defendant is not in a position to admit or deny is likely to be construed as placing no burden of proof on the plaintiff unless by implication from the other paragraphs of th e statement of defence the averment can be taken as having been denied. See Lewis &Peat (MRI) Limited v. Akhimien (1976)1 All NLR 460 Parties are bound by their pleadings and issues are settled on these pleadings. Judges cannot raise issues for the parties if they are not raised in their pleadings. Matters not pleaded go to no issue and evidence of such matters ought not to be admitted but if inadvertently admitted, the trial judge has a duty to expunge such evidence from his record or at least not to use such evidence in coming to his decision.  Although the evaluation of evidence and findings of fact are matters within the exclusive competence of a trial court, an appellate court will interfere with such evaluation and finding if they are found to be perverse and mis- apprehensive to the facts. See the full principles in (1985)1 NWLR (Pt. 2) page 360 et al.