LAMINA & ORS v. OYETUBO JOKOTADE ESTATE RESOURCES LTD & ANOR (2020)

LAMINA & ORS v. OYETUBO JOKOTADE ESTATE RESOURCES LTD & ANOR

(2020)LCN/14727(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, November 26, 2020

CA/L/936/2016

RATIO

APPEAL: WHAT CONSTITUTES THE RATIO DECIDENDI

It is settled law that the part of the judgment which constitutes the decision of the Court and which is appealable is the ratio decidendi. It is the principle decided that is the important thing and which constitutes the ratio decidendi that can be appealed against. The manner in which the Court hypothesizes the case in arriving at its decision is not important. See UTC vs. PAMOTEI (1989) 2 NWLR (PT 103) 244, AFRO-CONTINENTAL NIGERIA LTD vs. AYANTUYI (1995) 9 NWLR (PT 420) 411, AIC LTD vs. NNPC (2005) LPELR (6) 1 at 24-25, OLEKSANDR vs. LONESTAR DRILLING CO LTD (2015) LPELR (24614) 1 at 22-23 and SAIPEM vs. FIRS (2018) LPELR-45118 (CA). It is equally trite law that where a trial Court reached a right decision, the reason for arriving at the decision is immaterial, since the appellate Court is only concerned with whether the correct decision was arrived at and not whether the reasons are correct: NDAYAKO vs. DANTORO (2004) 13 NWLR (PT 889) 187 at 220, DAIRO vs. UBN PLC (2007) 16 NWLR (PT 1059) 99 at 161 and POATSON GRAPHIC ARTS TRADE LTD vs. NDIC (2017) LPELR (42567) 1 at 36 or (2019) 7 NWLR (PT 1672) 447. PER OGAKWU, J.C.A.
APPEAL: RULE ON FORMULATION OF GROUNDS OF APPEAL

It is abecedarian law that grounds of appeal should not be prolix. Although there is no limitation on the number of grounds of appeal, prudence dictates that it is not the number of grounds of appeal or litany or deluge of grounds of appeal that will make an appeal meritorious. See RHASIGBA vs. EVIH (1962) LPELR (40988) 1 at 6, PDP vs. SHERRIF (2017) LPELR (42736) 1 at 23-24 and G.K.F. INVESTMENT NIG LTD vs. NITEL PLC (2009) LPELR (1294) 1 at 11. PER OGAKWU, J.C.A.
APPEAL: ATTITUDE OF THE COURT TO PROLIFERATION OF ISSUES

The Courts frown at proliferation of issues for determination from grounds of appeal. See UGO vs. OBIEKWE (1989) 1 NWLR (PT 99) 366, MFA vs. INONGHA (2014) LPELR (22010) 1 at 26 and NDUUL vs. WAYO (2018) LPELR (45151) 1 at 19. It is not the number of issues for determination that determines the success of an appeal, but their content and quality. The issues for determination should be a clear and concise statement of the complaint against the judgment appealed against. The downside in proliferating the issues for determination is that it often obfuscates and obscures the real issues in the appeal such that the party leaves the substance and goes in pursuit of the shadow: OGBUANYINYA vs. OKUDO (NO. 2) (1990) 4 NWLR (PT 146) 331 at 367, CLAY INDUSTRIES (NIG) LTD vs. AINA (1997) 8 NWLR (PT 516) 208 and OGUNYADE vs. OSHUNKEYE (2007) 15 NWLR (PT 1057) 218. The issues framed for determination in an appeal should be such which is so crucial that if it is decided in favour of a party, such a party will be entitled to judgment. See UGO vs. OBIEKWE (supra) at 580, OKOYE vs. NCFC (1991) 6 NWLR (PT 199) 501, KALU vs. ODILI (1992) LPELR (1653) 1 at 21-22 and MANCHA vs. EMUKOWATE (2017) LPELR (43113) 1 at 9-12. PER OGAKWU, J.C.A.

ACTION: NATURE OF REPRESENTATIVE ACTIONS

Expounding the law on representative actions in DURBAR HOTEL PLC vs. ITYOUGH (supra), Nweze, J.S.C. stated as follows at pages 17-18:
“…it was a rule ‘founded on justice and common sense’ for all persons with the same interest …to regard the party named on the Writ as their champion … if he wins, they reap the fruit of their victory. If he fails they fail with him and must take the consequences. These are the basic principles on which representative actions are founded.” PER OGAKWU, J.C.A.
ESTOPPEL: DOCTRINE OF EQUITABLE ESTOPPEL

Equitable estoppel is a doctrine preventing one party from taking unfair advantage of another when through false language or conduct, the person to be estopped has induced another person to act in a certain way, with the result that the other person has been injured. Attorney-General, Rivers State v. Attorney-General, Akwa Ibom State (2011) 3 M.J.S.C. 1 at 131.
It is not necessary to plead estoppel in any special form so long the matter constituting estoppel is stated in such a manner as to show that the party pleading relies upon it as defence or answer. See Bullen and Leake’s Precedents of Pleading, 6th Edition 646 relied upon in Adebanjo v. Brown (1990) 6 S.C 63.
The 2nd Defendant sufficiently pleaded facts supporting the defence of estoppel in the Statement of defence.
In Yakubu Wambai v Jafaru Musa (2009) LPELR-8186, Peter-Odili J.C.A. (as she then was) held:-
‘…Thus, once a party either by his word or conduct has intimated that he consents to an act which has been done and that he will offer no opposition to it, he cannot later question the legality of the act he has sanctioned to the prejudice of those who have given faith to his word. Inyang v. Ebong (2002) 2 NWLR (Pt. 751) 284 at 334; Iga v Amakiri (1976) 2 SC 1; Horicon Limited v Wasurum (1987) 4 NWLR (Pt. 66) 646; Ikpuku v Ikpuku (1991) 5 NWLR (Pt. 193) 571; Ukaegbu v Ugoji (1991) 6 NWLR (Pt. 196) 127; Akanni v. Makanju (1978) 11-12 SC 13’
See also Menakaya v Menakaya (1996) 9 NWLR (Pt 472) 256. See also Akanni v Makanju (1978) 11-12 S. C. 76. PER OGAKWU, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

ALHAJI GANIYU LAMINA 2. ALHAJI NOJIMI IDOWU 3. ALHAJA FALILATU ANJORIN 4. MR. BABATUNDE COLE 5. MR. FATAI DISU 6. MUTIATU AFENIFUJA (For Themselves And On Behalf Of The Entire Members Of IDOWU DABIRI Family) APPELANT(S)

And

1. OYETUBO JOKOTADE ESTATE RESOURCES LIMITED 2. ATTORNEY-GENERAL OF LAGOS STATE RESPONDENT(S)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The disputed land in this matter is said to be situate at Idiroko Ogombo in Eti-Osa Local Government Area of Lagos State. Even though the Respondents referred to the land by a different name in the Certificate of Occupancy issued to the 1st Respondent, there is no confusion as to the identity of the disputed land. The land is well known to the parties. The Appellants relying on traditional history and acts of possession contend that the 1st Respondent trespassed onto the land based on a purported revocation of the land by the 2nd Respondent and subsequent allocation and issuance of a certificate of occupancy over the land to the 1st Respondent.

In consequence, the Appellants instituted proceedings before the High Court of Lagos State in SUIT NO: LD/495/2011: ALHAJI GANIYU LAMINA & ORS. (for themselves and on behalf of the entire Members of IDOWU DABIRI Family) vs. OYETUBO JOKOTADE ESTATE RESOURCES LIMITED & ANOR. The Appellants claimed the following reliefs:
“a) DECLARATION that the Claimants according to Yoruba Native law and custom are entitled to a Statutory right

of occupancy or alternatively customary right of occupancy or and any benefit and interest in respect of the portion of land situate, lying and being Idiroko Ogombo in Eti-Osa Local Government Area of Lagos State and measuring 25.0888 Hectares more particularly delineated in Composite Plan No. FSC/LA/1595/DPO1/2012 and verged GREEN.
b) A DECLARATION that any purported acquisition and subsequent allocation of the land in dispute to the 1st defendants by the 2nd defendant is null and void, illegal and unconstitutional.
c) AN ORDER setting aside the Certificate of Occupancy registered as 75/75/1006AE.
d) AN ORDER of INJUNCTION restraining the defendants by themselves, their agents or privies or otherwise howsoever and/or all persons claiming through them from entering, trespassing, alienating, interfering, erecting or demolishing or committing other acts or trespass upon the land and doing anything inconsistent with the Claimants’ right of customary possession and user of the said land.
e) A DECLARATION that the portion verged green in survey Plan No. FSL/LA/1595/DPO1/2012 consisting 11.98488 hectares does not fall within the land

purportedly acquired by Lagos State Government and allocated to the 1st defendant.
f) AN ORDER of injunction restraining the defendants, their agent and representatives from trespassing on the portion of land measuring 11.98488 hectares and verged green in the survey plan No. FSL/LA/1595/DPO1/2012
g) N5, 000.00 (Five Thousand Naira) against the defendants jointly and severally being damages for trespasses on the land by the defendants.”

The parties filed and exchanged pleadings and the matter was subjected to a full dressed plenary hearing at which testimonial and documentary evidence was adduced by the parties. At the end of the trial, the lower Court found no merit in the Appellants’ case and dismissed the same. The Appellants were dissatisfied with the said judgment and appealed against the same vide a Notice of Appeal containing eleven grounds of appeal. The judgment of the lower Court which was delivered on 24th March 2016 is at pages 320-341 of the Records, while the Notice of Appeal which was filed on 16th June 2016 is at pages 344-352 of the Records. The Notice of Appeal is also copied at pages 3-12 of the Supplementary

(Additional) Records of Appeal.

The Records of Appeal and Supplementary (Additional) Records of Appeal were compiled and transmitted and briefs of argument filed and exchanged between the Appellants and the 1st Respondent only. The 2nd Respondent did not file any brief of argument. The learned counsel for the Appellants and the 1st Respondent urged the Court at the hearing of the appeal to uphold their respective submissions in the determination of the appeal. The briefs on which the appeal was argued are:
1) Appellants’ Brief filed on 11th November 2016.
2) 1st Respondent’s Brief of Argument filed on 21st September 2017.
3) Appellants’ Reply Brief to the 1st Respondent’s Argument filed on 20th November 2017.

All the briefs were deemed as properly filed on 18th March 2019.
The Appellants distilled nine issues for determination, scilicet:
“Grounds of Appeal 4, 5 & 7
1. Having regard to the unchallenged, uncontradicted and uncontroverted pleadings and evidence, in particular evidence of traditional history, act of ownership and possession, whether the appellants have not discharged the

burden of proof that entitled them to the reliefs sought from the trial Court?
Ground 9
2. Whether there is any palpable contradiction or inconsistency and/or discrepancy in the pleading or evidence adduced by the claimants to prove their traditional history and even if there is any, is it of any moment or significant [sic] as to affect the merit of the case of the claimants?
Ground 6
3. Whether the appellants need to prove partitioning of Ogudu land before appellants’ evidence of traditional history can be conclusive in this case.
Ground 3
4. Whether the appellants have reasonable cause of action?
Ground 2
5. Whether the learned trial judge correctly directed himself to hold that the doctrine of estoppel is applicable when no parties placed it before him and parties are ad idem on the fact that the 2nd defendant had cancelled the 1981 acquisition?
Ground 1
6. Having regard to the evidence placed before him by the appellants, whether the trial judge properly directed himself to hold that the doctrine of waiver applies in this instance [sic] case.
Ground 8
7. Whether the learned trial judge was

right to have discountenance [sic] the appellants pleading and evidence of concealment, hiding of fact and misrepresentation in view of the phrase ‘‘…. his monumental act of ”fraudulent concealment of important fact” used by appellants’ counsel in his final address, and whether the appellants need to plead fraud in that regard?
Ground 10
8. Whether the learned trial judge made correct approach to the evidence led by the appellants and his findings when he failed to make positive conclusion on the effect of such findings?
Ground 11
9. Whether having regard to the pleading and uncontroverted, unchallenged and undisputed evidence led, the judgment of the lower Court made in favour of the respondents is not against the weight of evidence before the Court?”

The 1st Respondent on its part formulated three issues for determination, videlicet:
“1. Whether the dismissal of the Appellants claims by the trial Court occasioned a miscarriage of justice that would warrant the setting aside of the judgment of the Low [sic] Court. (Relates to grounds 3, 4 and 7 of the Notice of Appeal).

Whether having regard to the pleadings, burden of proof and evidence placed before the lower Court the findings of fact made by the lower Court ought to be disturbed by this Honourable Court. (relates to grounds 1, 6, 8, 9, 10 and 11 of the Notice of Appeal).
3. Whether the trial Court abdicated its role as an impartial umpire to make a case for the Respondents not borne out of the pleadings and evidence. (relates to grounds 2 and 5 of the notice of Appeal).”

reached a right decision, the reason for arriving at the decision is immaterial, since the appellate Court is only concerned with whether the correct decision was arrived at and not whether the reasons are correct: NDAYAKO vs. DANTORO (2004) 13 NWLR (PT 889) 187 at 220, DAIRO vs. UBN PLC (2007) 16 NWLR (PT 1059) 99 at 161 and POATSON GRAPHIC ARTS TRADE LTD vs. NDIC (2017) LPELR (42567) 1 at 36 or (2019) 7 NWLR (PT 1672) 447.
In view of this settled state of the law, the approach to the resolution of this appeal will be to interrogate whether the lower Court was right in its ratio decidendi and not whether the reason it gave for arriving at the ratio decidendi is correct.

Appellant are unnecessarily prolix. It is as though the Appellants wanted to appeal against every point made in the judgment. That is not good advocacy, as the success of the appeal does not depend on the number of the grounds of appeal, but the substantiality and strength of the grounds of appeal: SOSSA vs. FOKPO (2001) 1 NWLR (PT 693) 16, KUPOLUYI vs. PHILLIPS (2001) 13 NWLR (PT 731) 736 and NATSAHA vs. THE STATE (2017) LPELR (42359) 1 at 13-14.

The Appellants’ issues for determination are just as prolix and diffuse as the grounds of appeal. From the eleven grounds of appeal, the Appellants crafted nine issues for determination, which issues for the most part complain about the evaluation of evidence and ascription of probative value thereto by the lower Court. The Courts frown at proliferation of issues for determination from grounds of appeal. See UGO vs. OBIEKWE (1989) 1 NWLR (PT 99) 366, MFA vs. INONGHA (2014) LPELR (22010) 1 at 26 and NDUUL vs. WAYO (2018) LPELR (45151) 1 at 19. It is not the number of issues for determination that determines the success of an appeal, but their content and quality. The issues for determination should be a

clear and concise statement of the complaint against the judgment appealed against. The downside in proliferating the issues for determination is that it often obfuscates and obscures the real issues in the appeal such that the party leaves the substance and goes in pursuit of the shadow: OGBUANYINYA vs. OKUDO (NO. 2) (1990) 4 NWLR (PT 146) 331 at 367, CLAY INDUSTRIES (NIG) LTD vs. AINA (1997) 8 NWLR (PT 516) 208 and OGUNYADE vs. OSHUNKEYE (2007) 15 NWLR (PT 1057) 218. The issues framed for determination in an appeal should be such which is so crucial that if it is decided in favour of a party, such a party will be entitled to judgment. See UGO vs. OBIEKWE (supra) at 580, OKOYE vs. NCFC (1991) 6 NWLR (PT 199) 501, KALU vs. ODILI (1992) LPELR (1653) 1 at 21-22 and MANCHA vs. EMUKOWATE (2017) LPELR (43113) 1 at 9-12.

As evident from the judgment of the lower Court, the ratio decidendi on the basis of which the lower Court dismissed the Appellants’ case is that the Appellants’ family having entered into Terms of Settlement with the 2nd Respondent in a previous suit as a result of which there was an excision of part of the acquired land in their

favour, that the Appellants had waived or relinquished their right to the disputed land and they were consequently estopped from claiming any right to the disputed land on account of which their case did not disclose a reasonable cause of action. (See pages 332-334 of the Records). On the merits of the action, the lower Court held that the Appellants failed to conclusively prove their root of title as the traditional history they pleaded could not sustain the claim, on account of which the acts of possession relied upon were trespassory acts. (See pages 336-341 of the Records). It is against the background of the ratio decidendi that I would presently consider the pertinent submissions of learned counsel and then seamlessly resolve this appeal en bloc. Let me hasten to state that in so far as any part of the Appellants’ Reply Brief is a re-argument of the points already canvassed in the Appellants Brief, I shall not bother to review the same since that is not the purpose of a Reply Brief. See OLAFISOYE vs. FRN (2004) 1 SC (PT II) 27 or (2004) NWLR (PT 864) 580, OKONJI vs. NJOKANMA (1999) 12 SCNJ 259 at 277, ECOBANK NIG LTD vs. HONEYWELL FLOUR MILLS PLC

(2018) LPELR (45124) 1 at 9-11 and YANATY PETRO-CHEMICAL LTD vs. EFCC (2017) LPELR (43473) 1 at 27-28.

SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants’ contention on their issue numbers 1, 2, 3, 7, 8 and 9 are on evaluation of evidence. The Appellants submit that they proved the traditional history and acts of ownership and possession pleaded in order to be entitled to judgment. It was stated that being in possession, the Appellants are deemed holders of a right of occupancy vide ADOLE vs. GWAR 5 SCJL at 570, DZUNGWE vs. GBISHE (1985) 2 NWLR (PT 8) 528, ABIOYE vs. YAKUBU (2001) FWLR (PT 83) 2212 and ONONUJU vs. A-G ANAMBRA (2009) 5 M.J.S.C. (PT 1) [no page stated]. It was posited that the lower Court, having found that a Gazette was not sufficient notice of acquisition and that there was no proper service of the notice of revocation, ought to have entered judgment for the Appellants. The cases of ONONUJU vs. A-G ANAMBRA (supra) at 72-73 and TENIOLA vs. OLOHUNKUN (1999) 5 NWLR (PT 602) 280 were referred to.

It was contended that the 2nd Respondent’s pleading and evidence affirmed that the Appellants were owners in

possession of the disputed land and that the Respondents did not join issues on the Appellants’ traditional history, such that judgment should have been entered for the Appellants as the evidence was not challenged and it was not for a Court to make a case for a defendant. The cases of MORENIKEJI vs. ADEGBOSIN (2003) 8 NWLR (PT 823) 612, EWO vs. ANI (2004) 3 NWLR (PT 861) [no page stated], OLAGUNJU vs. ADESOYE (2009) 4 M.J.S.C. 76, AUDU vs. INEC (NO. 2) (2010) 13 NWLR (PT 1212) 456 among other cases were relied upon. The Appellants referred to the five ways of proving title to land and stated that the lower Court having held that the evidence of traditional history was not conclusive, ought to have considered the acts of ownership and possession which was sufficient to entitle the Appellants to judgment. The cases of EKPO vs. ITA 11 NLR [sic], KODJO vs. BONSIE (1957) 1 NLR 1223, ETALUKU vs. NBC PLC (2004) 5 NWLR (PT 896) 370, AKUNYILI vs. EJIDIKE (1996) 5 NWLR (PT 449) [no page stated] and a host of other cases were cited in support.

It was posited that the Appellants’ case was not stale, as limitation law was not pleaded and that the

Appellants’ cause of action only arose when the Respondents trespassed onto the land as there was no proper acquisition of the land. It was asserted that parties are bound by their pleadings and that a Court is not to make out a case of its own different from the pleadings or make findings not borne out by the evidence. The cases of AUDU vs. INEC (supra), OSAGIE vs. ADONRI (1994) 6 NWLR (PT 349) 131, ONIBUDO vs. AKIBU (1982) 7 SC 62 among other cases were called in aid.

The Appellant states that the typographical error in the Amended Statement of Claim where Ogunleye was pleaded as the precursor of Idowu Dabiri, instead of Ogundare should not have been relied upon by the lower Court to hold that the traditional history was inconclusive, when the same was not raised by the Respondents and the original statement of claim had correctly pleaded the chain of succession. It was maintained that the Court is to do substantial justice and not technical justice, more so when the amended processes still formed part of the Court’s record and should have been resorted to, to ascertain that it was a typographical error in the Amended Statement of Claim. The

cases of OLORUNTOBA-OJU vs. ABDULRAHEEM (2009) 6 MJ.S.C. (PT 1) 1, AMADI vs. CHINDA (2009) 4 MJ.S.C. (PT 1) 120 and GENERAL OIL vs. ODUNTAN (1990) 7 NWLR (PT 163) 423 were referred to. It was further submitted that the lower Court was wrong to have relied on Exhibit C7, the Writ of Summons and Statement of Claim in a previous suit by the larger Appellant’s family, to hold that there was contradiction as to where Appellants’ forefather, Ogudu, migrated from; especially as the Respondents never raised the same and that the Court is to decide the case on the issues raised and not make a case for the parties. It was asserted that the said contradiction was not sufficient to invalidate the Appellants’ traditional history. The cases of ONIBUDO vs. AKIBU (supra) at 62, ANAMBRA STATE vs. EKWENEM (2009) 7 MJ.S.C. (PT 1) 118, ADIMORA vs. AJUFO (1988) 3 NWLR (PT 80) 1, OLAGUNJU vs. ADESOYE (2009) 4 MJ.S.C. 76, OKHUAROBO vs. AIGBE (2002) FWLR 869 and MAKINDE vs. AKINWALE (2000) FWLR (PT 25) 1562 were relied upon.

It was further argued that the Appellants did not need to prove partitioning of the family land in order to conclusively prove their

traditional history. It was posited that the issue of partitioning was not raised in the case and that since the acquisition was invalid, judgment ought to have been entered for the Appellants who were in possession as trespass is actionable at the suit of the person in possession vide AMAKOR vs. OBIEFUNA (1974) 9 NSCC 141. It was maintained that it was wrong for the lower Court to raise the issue of partition not raised by the parties in the pleadings and proceed to decide the issue it raised on its own. The cases of NDIC vs. ORANU (2001) FWLR (PT 82) [no page stated], OSAGIE vs. ADONRI (supra), SALAMI vs. OKE (1989) 5 NWLR (PT 63) 1, AGBAISI vs. EBIKOREFE (1997) 4 NWLR (PT 502) 630 among other cases were called in aid.

It is the further contention of the Appellants that the lower Court was wrong to have discountenanced the evidence adduced on concealment, hiding and misrepresentation of facts on the grounds that the Appellants written address used the phrase “monumental act of fraudulent concealment…” and on that basis held that particulars of fraud were not pleaded. It was stated that the address of counsel cannot take the place of

evidence and so the lower Court ought to have evaluated the evidence, and not the words used in the address of counsel in order to resolve the issue. It was asserted that the lower Court failed in its duty to adequately evaluate the evidence and make appropriate findings of facts vide WILSON vs. OSHIN 2 SCNQR 1215 at 1240 and AGBANELO vs. UNION BANK (2000) 4 SC (PT 1) 233. It was opined that the lower Court did not put the evidence adduced on an imaginary scale of justice and weigh them together, as it first considered the evidence of the Respondents and believed the same before considering the Appellants’ evidence. The cases of MUSA SHA JNR vs. DA RAP KWAN (2000) 8 NWLR (PT 670) 685 at 705, WOLUCHEM vs. GUDI (1981) 5 SC 291 and AKINTOLA vs. BALOGUN (2000) 1 NWLR (PT 642) 532 at 546-547 were cited in support.

The Appellants argued the issues of disclosure of reasonable cause of action, estoppel and waiver as their issue numbers 4, 5 and 6. The meaning of reasonable cause of action was referred to and it was maintained that the averments in the Amended Statement of Claim constituted sustainable right capable of being claimed and enforced against the

Respondents and disclosed a civil right and obligation fit for determination by a Court; and the lower Court was therefore wrong to hold that the Appellants did not have a reasonable cause of action. The cases of OLAGUNJU vs. YAHAYA (1998) 3 NWLR [no part stated] 501, HARUNA vs. KOGI STATE HOUSE OF ASSEMBLY (2005) ALL FWLR (PT 279) 1373 and SEVEN-UP BOTTLING CO vs. ABIOLA & SONS (2001) 12 NWLR (PT 730) 460 at 495 were referred to.

The Appellants further argue that estoppel was not raised in the pleadings or evidence, but at address stage; and that the address of counsel cannot be used to rectify the omission in the course of proceedings vide JINADU vs. ESUROMBI-ARO (2005) ALL FWLR (PT 251) 349 at 372, EMEGOKWUE vs. OKADIGBO (1973) 4 SC 113, ADEBAYO vs. SHOGO (2005) ALL FWLR (PT253) 739 among other cases were relied upon. It was contended that estoppel cannot be sustained where it will prevent the performance of a statutory duty, such as, in this case, issuing a notice of revocation. Paragraph 150 of Spencer Bower’s Estoppel by Representation, 3rd Edition and the case of A-G BENDEL vs. A-G FEDERATION (1982) NCLR 1 at 67, 89 and 90 were called in

aid. It was opined that Ogombo Community cannot be estopped on account of the Terms of Settlement reached in the previous suit as it did not induce the Lagos State Government to believe that the revocation notices validly revoked their right of occupancy over the disputed land or that the acquisition was valid. The Terms of Settlement relied upon as constituting estoppel, it was posited, was without legal foundation.

On the issue of waiver, the Appellants submit that the Terms of Settlement in the previous suit cannot amount to a waiver of their rights as there was no valid acquisition of the land at the time the Terms of Settlement was entered into. The 2nd Respondent, it was posited, hid, concealed and misrepresented the facts before the terms of settlement were entered into, and the subsequent issuance of Certificate of Occupancy. It was stated that the parties did not make out any case of an erroneous belief that the acquisition of the land in 1981 was nullified, and that the lower Court failed in its duty by importing its own ideas into the case and basing its judgment on suspicion vide SHARON PAINT & CHEMICAL CO LTD vs. EZENWAKU (2001) FWLR (PT

43) 290, CHABASAYA vs. ANWASI (2010) 5-7 M.J.S.C. (PT 1) 1 and NDILI vs. AKINSUMADE (2000) FWLR (PT 5) 750.

The definition of waiver in the cases of AUTO IMPORT EXPORT vs. ADEBAYO (2005) 19 NWLR (PT 959) 44 and ARIORI vs. ELEMO (1983) 1 SCNLR 1 was referred to and it was stated that it is only a known privilege that can be waived. The Appellants, it was asserted, did not know about the cancellation of the 1981 acquisition until when the 2nd Respondent frontloaded the 1993 Gazette and evidence of service of notice of revocation in its processes at the lower Court. The Appellants, it was asserted, could not have waived their right to litigation, more so, when the 2nd Respondent deceitfully concealed the fact that the purported acquisition in 1981, which was the main issue in the action in which Terms of Settlement were entered, had been nullified in an earlier suit. The 2nd Respondent, it was opined, should not be allowed to take advantage of its dubious acts. The cases of BTL INDUSTRIES LTD vs. UBA (2007) 2 FWLR (PT 360) 1647 and AKIBU vs. AZEEZ (2003) FWLR (PT 149) 1490 at 1511 were relied upon.

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SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The 1st Respondent submits that the Appellants have the burden of proving their case and succeeding on the strength of their case and not relying on the weakness in the Respondents’ case. The evidence adduced by the Appellants, it was posited, fell short of the standard of proof by preponderance of evidence. The lower Court, it was stated, rightly held that the Appellants’ evidence did not establish how the land changed from Ogudu family communal land to the exclusive ownership of the Appellants. It was contended that the chain of devolution of title based on traditional history relied upon by the Appellants had a vital missing link and consequently did not establish the Appellants’ title by grant or inheritance as claimed by them. The Appellants, it was further contended did not give evidence as to when the land was founded by their progenitor. The cases of NNEJI vs. CHUKWU (1996) 10 NWLR (PT 478) 265 at 276 and LEBILE vs. REGISTERED TRUSTEE OF C & S (2003) 1 SC (PT 1) 25 at 28-29 and 30 were referred to. The lower Court, it was asserted, rightly applied the correct principles of law to the established facts and dismissed the

Appellants’ claim.

It was stated that the Appellants’ concession of the missing link in their traditional history and attributing the same to a typographical error, which they never applied to amend, but that the deposition of their witness and contradictory answers under cross examination could not be typographical errors. It was asserted that the Appellants did not have title or possession of the disputed land and that it is only where they had so established the same that they could seek reliefs challenging the compulsory acquisition of the disputed land.

The further contention of the 1st Respondent on the second issue it distilled is that the lower Court made findings of facts furnishing objective and cogent reasons to justify the findings, based on the evidence adduced and the position of the law. It was stated that the finding of the lower Court that the 1981 acquisition of the land was never set aside or nullified has not been challenged and that the suit filed by the larger Ogudu family of the Appellants challenging the 1981 acquisition was amicably settled and land excised and given to them, on the basis of which the lower Court

held that the Appellants were estopped from instituting or maintaining another action and that their claim therefore disclosed no reasonable cause of action as they could no longer claim any portion of land in which the prior title had been extinguished by the 1981 acquisition. It was posited that the Appellants did not appeal against the specific finding of the lower Court that the acts of possession they rely upon had become acts of trespass in consequence of which judgment cannot be entered for them based on acts of possession. This Court was urged not to interfere with the findings of facts made by the lower Court as the said findings were not perverse vide OLANIYAN vs. OYEWOLE (2011) 14 NWLR (PT 1268) 445 at 490 and ASHAYE vs. E. M. A. G. ENT (NIG) LTD (2011) 10 NWLR (PT 1256) 47 at 530-531.

The 1st Respondent’s argument on its third issue is that the lower Court did not abdicate its role as an impartial umpire to make a case for the Respondents that is not borne out by the pleadings and evidence. It was stated that the 2nd Respondent pleaded waiver in paragraph 22 of its Statement of Defence and that the lower Court rightly held that once

facts establishing waiver or estoppel are pleaded, estoppel and waiver can be inferred. It was further stated that the acts of possession relied upon by the Appellants were denied in paragraphs 13-15 of the 1st Respondent’s Statement of Defence and that the findings of facts made by the lower Court in this regard is borne out by the evidence on record. It was stated that it was the Appellants that pleaded in paragraph 8 of their Amended Statement of Claim that the land was partitioned and that being an integral part of the Appellants’ case, the lower Court had to pronounce on the same. It was asserted that the lower Court properly evaluated the evidence and ascribed probative value thereto. It was conclusively submitted that a plaintiff seeking a declaration of title to land must succeed on the strength of his own case and not on the weakness of the defence. The cases of WOLUCHEM vs. GUDI (1981) 5 SC 291 and OKOROAFOR vs. ABAWORONINI (1996) 2 NWLR (PT 430) (PT 430) 278 at 280 were called in aid.

APPELLANTS’ REPLY ON LAW
The Appellants contend, inter alia, that their claim was for declaration of entitlement to a right of occupancy,

but that the lower Court deviated from the claims before it and treated the case as claim for declaration of title to family land and partitioning of land which the law does not allow it to do vide ADEBIYI vs. UMAR (2012) 9 NWLR (PT 1305) 279 and LONGE vs. FBN (2010) 2-3 MJ.S.C. 128 among other cases. It was stated that the burden of proof is not static and that the 2nd Respondent having admitted the title and possessory right of the Appellants, the Appellants were entitled to judgment. The cases of BAMGBOYE vs. OLUSOGA (1996) 4 NWLR (PT 444) 520, ONOBRUCHERE vs. ESEGINE (1986) 17 NSCC (PT 1) 343 and a host of other cases were referred to.

RESOLUTION
In order to conduce to the utmost pellucidity, it is pertinent to redact the salient facts of this matter. The disputed land which is in the axis of the Lekki-Epe Expressway corridor has had a history of acquisitions and revocation of title of the land-owning families. As the revocation and acquisitions happened, litigation followed. The first acquisition was in 1981. Its spawned litigation filed by the Ojomu Chieftaincy Family in SUIT NO. ID/1883/89. The judgment in the said suit was tendered by the

Appellants as Exhibit C8. As correctly held by the lower Court at pages 329-330 of the Records, the said judgment, Exhibit C8, did not nullify the 1981 acquisition because no such relief was claimed, even though a finding was made in the judgment that the right of Occupancy of the Ojomu Chieftaincy Family was not validly or effectively revoked by the said 1981 acquisition. That was as it relates to the Ojomu Chieftaincy Family.
As a reaction to the said decision, the Lagos State Government by another gazette re-acquired the said land in 1993. Prior to this Gazette, the Appellants larger family, the Ogudu Chieftaincy Family of Ogombo Village instituted proceedings in SUIT NO. LD/2714/1991 challenging the said 1981 revocation and acquisition of the land. The said action was amicably settled out of Court and about 500 hectares was excised from the area acquired and given to the Ogudu Chieftaincy Family in settlement of the said action. It is pertinent to state that the said 1991 action was instituted in a representative capacity for and as representing the Ogudu Chieftaincy Family of Ogombo Village in Eti-Osa Local Government Area of Lagos State. The Writ

of Summons and Statement of Claim in the 1991 case was tendered in evidence as EXHIBIT C7. The Appellants herein have traced their progeny and forebear to OGUDU. So they were parties and privies in the said 1991 case which was fought in a representative capacity: DURBAR HOTEL PLC vs. ITYOUGH (2016) LPELR (42560) 1 at 8-9, 17-18 and APEH vs. PDP (2016) ALL FWLR (PT 824) 1 at 13. Indeed, the 1st Appellant herein was the 5th Plaintiff in the 1991 action. Expounding the law on representative actions in DURBAR HOTEL PLC vs. ITYOUGH (supra), Nweze, J.S.C. stated as follows at pages 17-18:
“…it was a rule ‘founded on justice and common sense’ for all persons with the same interest …to regard the party named on the Writ as their champion … if he wins, they reap the fruit of their victory. If he fails they fail with him and must take the consequences. These are the basic principles on which representative actions are founded.”
So, the Appellants joined in reaping the fruit of the victory in the negotiated settlement in the 1991 case and the excision of 500 hectares for them in the acquired land.

The 2nd Respondent in its Statement of Defence pleaded facts in respect of the 1991 action and the settlement thereof and then averred as follows at paragraph 22 of the Statement of Defence:
“22. The 2nd Defendant shall contend at the hearing of this suit that the Claimants action is caught by the doctrine of Waiver since part of the Land has been excised in favour of the Ogudu Chieftaincy family, which the Claimants are members.”
So, the question of waiver was not raised by the lower Court. It was raised in the pleadings and being properly before the lower Court, the lower Court was duty bound to consider and decide the same. See EJOWHOMU vs. EDOK-ETER MANDILAS LTD (1986) 9 SC 41 at 102-103, AKINTOLA vs. SOLANO (1986) LPELR (360) 1, MARINE MANAGEMENT ASSOCIATES INC. vs. NMA (2012) LPELR (20618) 1 at 27, ADEBAYO vs. A-G OGUN STATE (2008) LPELR (80) 1 at 17 and NKUMA vs. ODILI (2006) LPELR (2047) 1 at 17. The lower Court discharged this duty when it considered the issue of waiver and held as follows at pages 332-334 of the Records:
“The 2nd Defendant pleaded waiver.
In the case of Ariori & Ors. v. Elemo & Ors. (1983) 1 S.C

13, the Supreme Court defined waiver, as the intentional and voluntary surrender or relinquishment of a known privilege and a right. It implies a dispensation or abandonment by a party, waiving of a right or privilege which at his option, he could have insisted upon.
The claimants being a branch of Ogudu Family of Ogombo by their own showing cannot claim not to be bound by the decision of the larger family to waive or relinquish their right to Ogombo land by agreeing to the compromise with the Lagos State Government.
In his address, Claimant counsel argued that the settlement was based on the 1981 not the 1993 acquisition they are challenging. He submitted that the 1981 acquisition was nullified, that it follows that the settlement agreement which is predicated on the 1981 acquisition is based on nothing and is null and void. He relied on Macfoy v UAC (1961) 3 All E.R 1169 for this submission. He also submitted that the 2nd Defendant fraudulently concealed from the Court at the time of the settlement agreement that the 1981 acquisition had been nullified. He finally argued that the doctrine of waiver is not applicable in the circumstance.

I agree with the 1st Defendant counsel’s submission in his reply address which is trite that address of counsel cannot take the place of pleadings and evidence. Nowhere did the claimants plead fraud with the particulars with the regards to the Terms of Settlement, I therefore discountenance this submission as it goes to no issue. Also, after becoming aware of the alleged fraud, what efforts have the Claimant made to redress the situation?
Based on the admission of CW1 under cross examination, I hold that the 2nd Defendant excised the land covered by the certificate of occupancy registered as 73/73/96 to the Ogudu Family of Ogombo of which the claimants are a part. I also hold that whatever right the claimants had in Ogombo land is subsumed in the agreement conceded by the larger family. I hold that the doctrine of waiver applies.
If the settlement was null and void as contended by Claimant counsel, what about the over 500 hectares released to the Ogudu Family in 1996 well after the 1993 acquisition now being challenged? CW1 admitted under cross examination that the family did not return the land to the government. This is like eating your cake and

having it at the same time.
The Claimants are estopped from claiming any right to Ogombo land. The doctrine of estoppel by conduct applies.
Equitable estoppel is a doctrine preventing one party from taking unfair advantage of another when through false language or conduct, the person to be estopped has induced another person to act in a certain way, with the result that the other person has been injured. Attorney-General, Rivers State v. Attorney-General, Akwa Ibom State (2011) 3 M.J.S.C. 1 at 131.
It is not necessary to plead estoppel in any special form so long the matter constituting estoppel is stated in such a manner as to show that the party pleading relies upon it as defence or answer. See Bullen and Leake’s Precedents of Pleading, 6th Edition 646 relied upon in Adebanjo v. Brown (1990) 6 S.C 63.
The 2nd Defendant sufficiently pleaded facts supporting the defence of estoppel in the Statement of defence.
In Yakubu Wambai v Jafaru Musa (2009) LPELR-8186, Peter-Odili J.C.A. (as she then was) held:-
‘…Thus, once a party either by his word or conduct has intimated that he consents to an act which

has been done and that he will offer no opposition to it, he cannot later question the legality of the act he has sanctioned to the prejudice of those who have given faith to his word. Inyang v. Ebong (2002) 2 NWLR (Pt. 751) 284 at 334; Iga v Amakiri (1976) 2 SC 1; Horicon Limited v Wasurum (1987) 4 NWLR (Pt. 66) 646; Ikpuku v Ikpuku (1991) 5 NWLR (Pt. 193) 571; Ukaegbu v Ugoji (1991) 6 NWLR (Pt. 196) 127; Akanni v. Makanju (1978) 11-12 SC 13’
See also Menakaya v Menakaya (1996) 9 NWLR (Pt 472) 256. See also Akanni v Makanju (1978) 11-12 S. C. 76.
The Claimants tendered Exhibit C9 where similar argument was canvassed before Nicol Clay in LD/2347/2010. I have read the Ruling. It is not binding on me. Each case turns on its own facts. The full facts of that case are not before me only the ruling.
In all, I hold that Claimants’ case disclosed no reasonable cause of action against the Defendants.”
It is effulgent that is on account of the lower Court having held that the doctrine of waiver was applicable that it held that the Appellants, having taken benefit of the settlement in the 1991 action and the land excised in favour

of their OGUDU family, were estopped from claiming any right in the Ogombo Land, as a result of which a reasonable cause of action was not disclosed.
I have already stated that the Appellants were part of those represented in the 1991 action. They were parties and privies in the said action which was in respect of the acquisition of the Ogombo land. It is of no moment if the action was premised on the 1981 acquisition or the 1993 gazetted acquisition. The subject matter of the acquisition was Ogombo land and the subject matter of the 1991 action, just like this action, was trespass arising from the said acquisition of the Ogombo land. It is instructive that the Appellants have not contended that the trespass, cause of action in this matter was in respect of the 500 hectares that was excised for their family in the Terms of Settlement in the 1991 action. It is settled law that an action which is caught by the operation of estoppel cannot be said to disclose a reasonable cause of action. See EX PARTE ADESHINA (1996) 4 NWLR (PT 442) 254, IKE vs. UGBOAJA (1993) 6 NWLR (PT 301) 39 and OGAR vs. IGBE (2019) LPELR (48998) 1 at 22-23.

By analogous reasoning or parity of reasoning, the Appellants cannot be heard to contend that they could not have waived their right because at the time of the 1991 action which was based on the 1981 acquisition, they were not aware of the 1993 acquisition. The waiver relates to the subject matter of the action, the acquisition of the Ogombo land, whether it be 1981 or 1993 acquisition. The Appellants compromised and settled the issue of acquisition of the Ogombo land in the 1991 action and can no longer re-litigate the same under whatever guise in the present action. The legal implication of the waiver is that the Appellants are estopped from raising the issue. See ARIORI vs. ELEMO (supra), EZOMO vs. OYAKHIRE (1985) LPELR (1216) 1 at 12 and AUTO IMPORT EXPORT vs. ADEBAYO (2005) LPELR (642) 1 at 26-28.
After an insightful consideration of the facts of this matter and the law, it cannot be confuted that decision of the lower Court that the doctrine of waiver was applicable, consequent upon which the Appellants were estopped from further litigating for trespass on account of the acquisition of the Ogombo land in consequence of which the action did not disclose a reasonable cause

of action, is the correct decision.

As an intermediate appellate Court, I will not end the judgment at this stage. I will in the same commendable manner followed by the lower Court consider the merits to ascertain if the Appellants established the root of title pleaded by them so as to be entitled to judgment and whether the lower Court properly evaluated the evidence and ascribed probative value thereto. I have already set out the reliefs claimed by the Appellants. The Appellants argue that they did not claim a declaration of title to family land, but that their claim was for a declaration of entitlement to a right of occupancy. I am not enthused by this contention. The introduction of the Land Use Act in 1978 divested any claimant of radical title and limited claims to a right of occupancy. So a claim for declaration to a right of occupancy still requires the same elements required to prove a claim for declaration of title to land. See SALAMI vs. OKE (1987) LPELR (2982) 1 at 29-30 and ADOLE vs. GWAR (2008) LPELR (189) 1 at 35.
It is hornbook law that a claimant for a declaration of title to land must succeed on the strength of his case and not on

the weakness of the defendant’s case, save where the defendant’s case supports the claimant’s case. See KODILINYE vs. ODU (1935) 2 WACA 336 at 337, FAGUNWA vs. ADIBI (2004) 14 NWLR (PT 903) 544 at 568, NSIRIM vs. NSIRIM (2002) 12 WRN 1 at 141, ONWUGBUFOR vs. OKOYE (1996) 1 NWLR (PT 424) 252 and ASHIRU vs. OLUKOYA (2006) 11 NWLR (PT 990) 1 at 19-20. The Respondents did not counterclaim, so it was for the Appellants to establish the declaration of title sought over the disputed land. Therefore, the heavy burden of proving title to the disputed land rested squarely on the Appellants. There was no duty on the Respondents who did not claim any declaration to prove their title. See ADEKANMBI vs. JANGBON (2007) ALL FWLR (PT 383) 154 at 160, 163 and OWOEYE vs. OYINLOLA (2014) ALL FWLR (PT 721) 1458 at 1477.
The legal position has crystallized that there are five ways or methods of proving title to land. The proof of any of the five ways or methods will suffice for the action to succeed: IDUNDUN vs. OKUMAGBA (1976) 9-10 SC 227 and THOMPSON vs. AROWOLO (2003) 4 SC (PT 2) 108 at 155-156. The Appellants relied on traditional history and acts of

possession to prove their title to the disputed land. It is trite law that a party who relies on traditional history to prove title to land is bound to plead and prove who founded the land, how the land was founded and the names and particulars of the successors in the chain of the devolution of the land from the founder to the claimant. The Appellants pleaded the root of title of their traditional history in paragraphs 5, 6, 7, 8, 9, 10 and 11 of the Amended Statement of Claim as follows:
“5. The land subject matter of this suit forms part of the land founded and settled upon by one OGUDU who migrated from Shaki now Osun State to the land.
6. The claimants aver that at the time Ogudu arrived the land now known as Ogombo part of which form the land in dispute there was no inhabitant on the land and was in forest state.
7. Pa Ogudu deforested the land and was hunting and was also farming on the land.
8. The claimants aver that Ogudu is their ancestral father, in that:
Ogudu had nine (9) children viz – (1) Ogunremi (2) Ogunmbo (3) Ogunleye (4) Taiwo (5) Kusoro (6) Dada Omolara (7) Abeji (8) Ogundare and (9) Sadipe and upon his

death, his estate was partitioned among the 9 (nine) children and the land in dispute was apportioned to Ogundare.
9. The land in dispute form part of the vast area of land settled upon by Ogudu and allotted to Ogundare claimants are the descendants of the said Ogundare through Idowu Dabiri, a Descendant of Ogudu, in that:
a) Ogunleye begat Idowu Dabiri, Fakeye Baoku and Edunjobi
b) Idowu Dabiri begat Lamina, Wahab, Basiru, Sadiku and Rafatu
c) Lamina begat Alhaji Abdul Ganiyu Lamina (1st claimant) and Alhaja Falilatu Anjorin (nee Lamina) (3rd claimant)
d) Wahab begat Alhaji Nojimu Idowu (2nd claimant)
e) Sadiku begat Mrs. Mutiatu Ajenifuja (6th claimant)
f) Sakibu begat Babatunde Cole (4th claimant)
g) Rafatu begat Mr. Fatai Disu (5th claimant)
10. Upon the death of Ogundare, the land in dispute was inherited by Idowu Dabiri who until his death exercises maximum possession of the land.
11. Upon the death of Idowu Dabiri, the land in dispute devolved on claimants under the Yoruba Native law and customs and has been in an undisturbed possession of the land without any let or hindrance from anybody whosoever and

also ward off any attempt by anybody to encroach on the land.”
(See pages 74-75 of the Records)
The 1st Appellant as CW1 testified on the traditional history as pleaded in paragraphs 6-12 of his witness statement on oath. See pages 79-80 of the Records.
It is the trial Court that sees the witnesses, hears their testimony and observes their demeanour. It therefore has the primary duty of evaluating and ascribing probative value to the evidence adduced. In its duty of perception of evidence, id est, receive all available evidence on an issue, the lower Court admitted the documents tendered by the Appellants including the Writ of Summons and Statement of Claim in the 1991 action, which was admitted in evidence as Exhibit C7. Having admitted the testimonial and documentary evidence, the trial Court next had the duty to weigh the evidence in the context of the surrounding circumstances of the case. This is evaluation of evidence, after which it makes findings of facts on the evidence. See OLUFOSOYE vs. OLORUNFEMI (1989) 1 SC (PT 1) 29 or (1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592 and

WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51.
In the evaluation of evidence, the Court assesses the evidence to determine whether it preponderates in favour of the basic proposition which it seeks to establish: MOGAJI vs. ODOFIN (1978) 4 SC 91, ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182, AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9 and OBASI BROTHERS MERCHANT COMPANY LTD vs. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) 4 MJ.S.C. 1 at 26. In the diacritical circumstances of this matter, the Appellants pleaded that their progenitor, OGUDU, who founded the disputed land migrated from SHAKI now in Osun State to the land. The 1st Appellant testified to this in paragraph 6 of his witness statement on oath. However, in the 1991 action which the Appellants tendered as Exhibit C7, it is averred in paragraph 3 of the Amended Statement of Claim therein that the plaintiffs’ forefather came to Lagos from a place called SABE which is a village on the boundary of Oyo State and Benin Republic. I iterate that the 1991 action involved the Appellants as party and privy being a representative action. So already on the very first requirement of establishing the

traditional history as to the founder of the land, the Appellant adduced contradictory evidence. Did their progenitor migrate from SHAKI or from SABI? This immediately put the proof of the traditional history pleaded on quicksand. I duly considered the Appellants’ contention that the lower Court made out a case for the Respondents since no issue was made by them as to where the Appellants progenitor migrated from and any contradiction therein. I am unable to agree. The Appellants sought a declaration of title, they are to succeed on the strength of their case and not the weakness of the defence. Indeed, evidence even if unchallenged still has to be evaluated as such unchallenged evidence may still be insufficient to sustain the claim made by the claimant. See OGUNDIPE vs. A-G KWARA (1993) 2 NWLR (PT 313) 588, NEKA B.B.B. MANUFACTURING CO. LTD vs. ACB LTD (2004) 15 WRN 1 at 27 and HARUNA vs. SALAU (1998) 7 NWLR (PT 559) 653 at 659. It seems to me preposterous and ludicrous for the Appellants to think that the lower Court would have accepted their evidence hook, line and sinker, without evaluating the same on the ground that the issue on which the

evaluation was based was not raised by the Respondents. A judge is neither a robot nor an automation who once he is fed data produces an automatic answer. In every action taken before his Court, and in every step taken by a Judge, his discretion is called into play whether in interpreting the law or in deciding an action one way or another. Judges are intrepid by their great learning and training and can distinguish in order to render justice to whom it is due. FAWEHINMI vs. AKILU (1987) 4 NWLR (PT 67) 797 at 843 and MAGIT vs. UNVERSITY OF AGRICULTURE MAKURDI (2006) ALL FWLR (PT 298) 1313 at 1345.
To further compound the deficiencies in the proof of the traditional history pleaded by the Appellants, the evidence adduced presented a missing link in the chain of devolution of the disputed land to the Appellants. This is how the lower Court captured it at pages 337-338 of the Records:
“The question thrown up by this history is ‘who are the children of Ogundare, the son of Ogudu? It was not pleaded that Ogunleye who begat Idowu Dabiri is the only child or one of the children of Ogundare. Between Ogundare and Ogunleye, there is a missing

link. There is another Ogundare who is a direct child of Ogudu but the claimants are not claiming through him.
When under cross-examination, CW1 stated that there are 5 generations. One of the generations is missing in the traditional history. He also stated under cross examination that Ogundare had four children from one wife. The name(s) of the children of Ogundare is not pleaded.
In Eze v. Atasie (2000) 10 NWLR (Pt. 676) 470, (2000) 6 SCNJ 209, the Supreme Court per Uwaifo, J.S.C. held as follows on this issue: –
“The law is that to establish the traditional history of land relied on as root of title, a plaintiff must plead the names of the founder and those after him upon whom the land devolved to the last successor(s) and lead evidence to support without leaving gaps or creating mysterious or embarrassing linkages which have not been and cannot be explained. In other words, the pleading of the devolution and the evidence in support must be reliable, being credible or plausible. Otherwise the claim for title will fail.”
The Court has no jurisdiction to supply any missing link in the genealogical tree of progenitors of the

claimants: Awodi & Anor v Ajagbe (2014) 12 S.C (Pt. 1) 76.”
The Appellants submitted that the missing link is as a result of a typographical error in the Amended Statement of Claim and that the lower Court should have done substantial justice by having recourse to the original Statement of Claim. If arguendo, it is a typographical error, it is instructive that the evidence adduced by the Appellants is in line with the facts as pleaded in the Amended Statement of Claim. The consequence will be that any recourse to the original Statement of Claim would resultantly imply that the evidence adduced will be at variance with the pleadings and such evidence which is at variance with the pleadings goes to no issue: EMEGOKWUE vs. OKADIGBO (1973) 4 SC 113 at 117, ONWUCHEKWA vs. EZOGU (2009) LPELR (8267) 1 at 11-12 and EZE vs. ENE (2017) LPELR (41916) 1 at 6. So from whatever perspective it is approached the evidence adduced by the Appellants did not establish the chain of devolution without leaving gaps as required by law vide EZE vs. ATASIE (2000) 10 NWLR (PT 676) 470. The lower Court was therefore correct when it held that the evidence of traditional

history adduced by the Appellants was inconclusive. Such inconclusive evidence of traditional history, which is contradictory as to where the original founder of the land migrated from, and which left yawning gaps on the link of the chain of succession cannot ground a grant of declaration of title or entitlement to a right of occupancy in favour of the Appellants.
The Appellants argue that the lower Court having held that their traditional history was inconclusive ought to have entered judgment for them on the proven acts of possession. The pertinent question to ask in this regard is that since the Appellant did not establish the traditional history pleaded by them on the basis of which they claim both ownership and possession of the disputed land, what will be the quo warranto on which judgment for the declaration sought would be entered for them based on acts of possession. Without a doubt, possession is nine tenths of the law and a person in possession would have better right to the land against the whole world except the person with a better title or right to possession. The concomitance of the lower Court having held that the traditional history

pleaded by the Appellants was inconclusive meant that any possessory acts exercised by the Appellants on the disputed land are merely trespassory acts which would not defeat the interest of the Respondents and can therefore not found the declaration sought by the Appellants. See FASORO vs. BEYIOKU (1988) 2 NWLR (PT 76) 263 at 273-274, IRAWO vs. ADEDOKUN (2005) 1 NWLR (PT 905) 199 at 215, OKHUAROBO vs. AIGBE (2002) 9 NWLR (PT 771) 29 and SKYE BANK vs. AKINPELU (2010) 9 NWLR (PT 1198) 179 0r (2010) LPELR (3073) 1 at 42. In order for acts of possession to be ownership of a disputed land, the party who seeks to rely on such acts of possession must succeed in establishing the root of title to the land (in this case traditional history), such that the acts of possession will be seen as flowing from his root of title in order to properly qualify as acts of ownership over disputed land. See LAWAL vs. OLUFOWOBI (1996) 10 NWLR (PT 477) 177 at 188 and AJIKANLE vs. YUSUF (2008) 2 NWLR (PT 1071) 301 at 340. The acts of possession by a person who has no right to land remain acts of trespass: ALLI vs. ALESHINLOYE (2000) 4 SC (PT I) 111 and EZEKWESILI vs. AGBAPUONWU (2003) 4

SC (PT I) 33 at 49.
The solid findings of the lower Court that the Appellants did not prove any of the two methods of proving title to land relied upon by them are unassailable and would not be impacted upon by the Appellants’ submission as to whether the lower Court rightly held that the Appellants did not establish that there was a partitioning of the land and that it was apportioned to the Appellants. Brevi manu, it is the Appellants that pleaded that the estate of Ogudu was partitioned among his children. This made the question of partition a fact in issue in the trial which the Appellants were obligated to prove in order to establish the chain of devolution of succession of the disputed land to them.

The Appellants further argued that the lower Court was wrong when it held that the action was stale as the limitation law was not pleaded. At the outset, I stated that an appeal is against the ratio decidendi of the Court. An appeal is not directed at an obiter dictum. This is what the lower Court stated with regards to limitation of action at page 341 of the Records:
“I cannot make any declaration in favour of the Claimants because they

failed to prove conclusively their root of title. Furthermore, their claim is stale and is unenforceable. The acquisition they are complaining about was in 1993. This suit was filed in 2011.
I will say no more on this since the Defendants did not plead limitation law in their defence pursuant to Order 15 Rule 7 (2).”
It is limpid that the ratio decidendi from the above pericope is that the Appellants did not conclusively prove their root of title. The reference to the action being stale is an obiter dictum which ought not to be taken up on appeal: ABACHA vs. FAWEHINMI (2000) 6 NWLR (PT 660) 228 at 351, ONAFOWOKAN vs. WEMA BANK (2011) LPELR (2665) 1 at 46 and OLEKSANDR vs. LONESTAR DRILLING CO. LTD (2015) LPELR (24614) 1 at 69-70.

I have insightfully considered the judgment of the lower Court and I am in no doubt whatsoever that the evaluation of evidence and ascription of probative value thereto by the lower Court was done in total allegiance to the dictates and precepts of the law in that regard, and that the same cannot be faulted. It remains rudimentary law that for the determination of an appeal on issues of facts, it is not the

business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless the findings arrived at are perverse. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21 and AWOYALE vs. OGUNBIYI (1986) 4 SC 98. In the words of Idigbe, J.S.C. (of blessed memory) in BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47:
“It is now settled that if there has been a proper appraisal of evidence by a trial Court, a Court of appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial Court. Furthermore, if a Court of trial unquestionably evaluates the evidence then it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.”
Furthermore, the law is that the conclusions of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR

(PT2) 66 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. The concomitance of the decision that the lower Court properly evaluated the evidence and ascribed probative value thereto is that the Appellants have failed to displace the presumption that the conclusions of the lower Court on the facts are correct in order to upset the judgment on the facts. There is no basis for an appellate Court to interfere. This naturally sounds the death knell for the appeal. It is Nunc Dimittis!

The vessel of this judgment has been successfully navigated to the harbour. In berthing the vessel at the quays, I conclusively state that the appeal is totally devoid of merit. It fails and it is accordingly dismissed. The judgment of the lower Court, Coram Judice: Obadina, J., delivered on 24th March 2016 in SUIT NO. LD/495/2011 is hereby affirmed. The parties are to bear their respective costs of this appeal.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I concur with the thorough judgment prepared by my learned brother. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

EBIOWEI TOBI, J.C.A.: I have been afforded the privilege of reading in draft the leading Judgment of my learned

brother, UGOCHUKWU ANTHONY OGAKWU, J.C.A., and I am in consensus with my lord’s resolution on all the issues presented by counsel representing their respective clients for determination by this Court. My lord has succinctly dealt well with all the issues and resolved on them accordingly and as such, I have nothing more to say.

Appearances:

Sunday Oyeyinka, Esq. For Appellant(s)

Victor Ogude, Esq. – for the 1st Respondent.
A. O. Muheeb, Esq., Assistant Director, Ministry of Justice, Lagos – for the 2nd Respondent. For Respondent(s)

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