HON. OLADELE OLOWE & ANOR v. CHIEF AJEWOLE ALUKO (2014)

HON. OLADELE OLOWE & ANOR v. CHIEF AJEWOLE ALUKO

(2014)LCN/7613(CA)

In The Court of Appeal of Nigeria

On Monday, the 8th day of December, 2014

CA/I/65/2010

RATIO

LAND LAW IDENTIFICATION OF LAND; WHETHER THE LAND TO WHICH A DECLARATION OF TITLE IS SOUGHT MUST BE SUFFICIENTLY IDENTIFIED

In the case of Yesufu Ogedengbe & Ors. vs. V. J. B. Balogun & Ors, (2007) 3 – 4 SCNJ 227 @ 234 paragraph 5, the Supreme Court held thus:
“It is now firmly settled in a plethora of decided authorities, that land to which a declaration of title is sought must be sufficiently identified. See the case of Ezeoke & Ors. vs. Uga & Ors. (1962) 1 ANLR (Pt.1) 482, 484. In other words a claim of title must be made to a defined area with certainty, See the case of Amodu Rufai vs. Ricketts & 5 Ors, (1934) 2 WACA 95.”
A claimant can prove the identity of the land he is claiming, usually by tendering a survey plan. But there have been several decided cases to the effect that a survey plan is not a sine qua non; that the identity of the land in dispute can be established either by a survey plan or by describing the land in dispute in his pleadings in such a clear manner that a surveyor could from it draw an accurate survey plan. See:Ogunsina vs. Ogunleye (1994) 5 NWLR (pt.346) 625 @ 635.
However, it is settled in law that where the parties to a dispute know the land in dispute, the proof of identity of same is dispensed with or becomes unnecessary. In Yesufu Ogedengbe & Ors. vs. Chief J. B. Balogun & Ors. (supra), the Supreme Court in this respect has this to say at page 235 paragraph 5, thus:
“As a matter of fact and this is also settled, where the identity of the land in dispute is known to the parties and not in dispute, no plan is necessary. Absence of a plan is not fatal to a plaintiff’s claim if proper description of the land is available in the proceedings.” per. MOHAMMAD AMBI-USI DANJUMA, J.C.A.

PRACTICE AND PROCEDURE; WHETHER THE PLAINTIFF MUST SUCCEED ON THE STRENGTH OF HIS OWN CASE AND NOT ON THE WEAKNESS OF THE DEFENDANT’S CASE
It is trite in law that the Plaintiff must succeed on the strength of his own case and not on the weakness of the Defendant’s case unless the Defendant’s case supports his claim. See: Kolidinye vs. Odu (1935) 2 WACA 336 and Adeleke vs. Iyanda (2001) 6 SCNJ 101 @ 107. In other words, while the claimant must succeed on the strength of his case, he can take advantage of the case of the Defendant if it supports his own case. It is equally trite that it is the duty of the Plaintiff to prove his title clearly, emphatically, satisfactorily and cogently. See: Onibudo vs. Akibu (1982) 7 SC 60 @ 84 – 85; Olaoti vs. Balogun (1996) 4 NWLR (Pt.440) 44 @ 54. In this regard, this court had the opportunity to pronounce on the burden of proof of title to land. In the case of Ekanem vs. Akpan (1991) 8 NWLR (Pt.211) 616 @ 631, thus:
“In an action for declaration of title to land, it is trite law that the Plaintiff must prove title or prove to have been in possession as approved in the case of Ekpo vs. Ita II NLR 68 and held further in the case of Idundun vs. Okumagba (1976) NMLR 200.” per. MOHAMMAD AMBI-USI DANJUMA, J.C.A.

LAND LAW: TITLE TO LAND; THE EFFECT OF A PARTY SHOWING BETTER TITLE TO LAND
The position of the law is that once a party has shown a better title to a land in dispute, the possession of the other party becomes an adverse possession and the law does not recognize concurrent possession by two adverse claimants to title. per. MOHAMMAD AMBI-USI DANJUMA, J.C.A.

LAND LAW: A TRESPASS; WHETHER A TRESPASSER CANNOT TAKE POSSESSION BY HIS OWN TRESPASS

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMAD AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

1. HON. OLADELE OLOWE
2. MR. ISAAC OLOWE
(For themselves and on behalf Of Gidigbi Family of Ilesha) Appellant(s)

AND

CHIEF AJEWOLE ALUKO Respondent(s)

MOHAMMAD AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice F. O. Ogunsola of the High Court of Justice, Ilesa Division,Osun State delivered on 10/05/2001 in favour of the Plaintiff/Respondent.
The claim of the Plaintiff/Respondent at the trial court against the Appellants, as per his Statement of Claim dated 5/3/95 was for the following:
(1) A Declaration that the Plaintiff is entitled to possession of the farmland situate, lying and being at Okutuope, along Ilesha Akure Express Road, Ilesa which was in dispute in Suit No.HIL/34/81 between the parties to this case and finally settled by the Court of Appeal, Ibadan on 15th June, 1993 in Appeal No.CA/I/118/86. The plan of the land adjudicated in the case will be filed later by the Plaintiff.
(2) The sum of N50,000.00 representing damages for trespass committed by the Defendants on the said land by themselves, their agents, servants and privies or otherwise howsoever.
(3) INJUNCTION restraining the Defendants by themselves, their agents, servants and/or privies or otherwise howsoever from further trespassing on the said land.

FACTS RELEVANT TO THIS APPEAL
The case over this land in dispute has a chequered history. Firstly, in 1950, the ancestors of the Plaintiff/Respondent sued the ancestors of the Defendants/Appellants in Suit No.69/50 at the Divisional (Customary) Court at Ilesa and judgment was given for the Plaintiff/Respondent’s ancestors. There was no appeal against that judgment. Instead of appealing that judgment, about 30 years thereafter, the Appellants’ family brought Suit No.HIL/34/81 against the Respondent’s family in respect of the same land at the High Court of Osun State, Ilesa Division and judgment was given in favour of the Appellants’ family. Dissatisfied, the Respondent’s family appealed that High Court judgment to the Court of Appeal in Appeal No.CA/I/118/86 and the judgment of the High Court in Suit No.HIL/34/81 in favour of the Appellants’ family was set aside and an order for retrial was made by the Court of Appeal. Instead of pursuing the retrial of their case, the Appellants went into their cocoon and slumbered because they are in possession, until 1995 when the Respondent brought the suit that culminated in this appeal for the court to give effect to his subsisting judgment in Suit No. 69/50. At the conclusion of trial and after listening to respective counsel addresses, the learned trial judge in a considered judgment delivered on 10/5/2001 granted all the reliefs of the Plaintiff/Respondent.

Dissatisfied, the Defendant/Appellant filed a Notice of Appeal dated 11/2/2010 containing five Grounds of Appeal. In compliance with the rules of this court, parties filed their respective Briefs of Argument. Appellants’ Brief of Argument was settled by O. C. Ogbewe (Esq.), dated and filed on 9/8/2010 but deemed properly filed on 19/01/2012. Kazeem A. Gbadamosi (Esq.) settled the Respondent’s Brief of Argument dated 31/5/2012 and filed 1/6/12, but deemed properly filed on 11/04/2013.
At the hearing of the appeal on 19/9/2014, O. C. Ogbewe (Esq.) adopted the Brief of Argument of the Appellants and formulated three issues for determination of this appeal as follows:
(1) Whether the Plaintiff’s action before the trial court did not amount to abuse of court process having regards to the order of the Court of Appeal for retrial (Ground 1).

(2) Whether the Lower Court could rely on mere averments in Pleadings to hold that the Plaintiff has proved the identity of the land in dispute by merely relying on proceedings in previous cases without oral evidence (Ground 2).

(3) Whether the Plaintiff having regards to the pleadings and evidence before the trial court has discharged the burden of proof placed on him and therefore entitled to judgment (Grounds 3, 4 and 5).

The Respondent’s Brief of Argument was adopted by Kazeem A. Gbadamosi (Esq.) who also distilled three issues for resolution in this appeal, thus:
1. Whether the Plaintiff was entitled to file and maintain an action against the Defendants for trespass in view of the acts of the Defendants and judgment in Suit No. CA/I/118/86 (Exhibit “D”) which dismissed the claim of the Defendants/Appellants (covers Ground 1).

2. Whether the trial court was right to have held that the identity of the land in dispute is and is as contained in Exhibit “A” and does not require the calling of a Surveyor (covers Ground 2).

3. Whether in view of the pleadings and evidence placed before the trial court, the trial Judge was right in holding that the Plaintiff/Respondent has proved his case and was therefore entitled to judgment (Covers Grounds 3, 4 and 5).
It is obvious that the three issues raised by the Appellants are similar in substance with that of the Respondent. I shall adopt the three issues raised by the Appellants in resolving this appeal.

ISSUE I
“Whether the Plaintiff’s action before the trial court did not amount to abuse of court’s process having regards to the Order of the Court of Appeal for retrial.”
On this issue, firstly it was observed by learned counsel for the Appellants that the claim of the Plaintiff/Respondent at the trial court depends solely on Suit No.HIL/34/81 and Appeal No.CA/I/118/86 involving the same parties in those cases and in the case now on appeal. Further, that on 27/5/2010, the Honourable court granted leave to the Appellants to raise and argue other grounds/issues not raised and determined in the judgment of the court below delivered on 10/5/2001 by Hon. Justice F. O. Ogunsola of Osun State High Court in Suit No.HIL/66/94: Between Chief Ajewole Aluko vs. Chief Okere Gidigbi & Ors. and/or to raise new point or issues not taken in the court below and/or to raise new points or Grounds of Appeal in this case as Grounds of facts and/or Grounds of mixed law and facts. Counsel stated that by virtue of this subsisting order, that Ground 1 and the issue distilled from same is competent.

Counsel submitted quite forcefully that the judgment of the Court of Appeal in Appeal No.CA/I/118/86 on Suit No. HIL/34|81 directed a re-trial of Suit No. HIL/34/81: Chief Okere Gidigbi & Anor vs. Ajewole Aluko by another Judge and not the filing of a new suit, i.e. HIL/66/94: Chief Ajewole Aluko vs. Chief Okere Gidigbi & Anor which was heard and judgment delivered by Hon. Justice F. O. Ogunsola; and which gave rise to this appeal. He relied on the case of Duru vs. Onwumelu (2001) 12 SCNJ 306 @ 326 to submit that the purpose of a retrial order is to ensure that justice is done to both parties since neither party is entitled to judgment. He referred to Yesufu vs. Cooperative Bank (1994) 9 SCNI 67 @ 85. Counsel argued that the judgment of the Court of Appeal delivered on 15/6/93 which has not been appealed against remains valid and binds the parties. He relied on the case of Yakubu vs. Omolaboje (2006) 23 WRN 171 @ 180.
Counsel referred to Section 54 of the Evidence Act to the effect that judgment is conclusive proof as against parties and privies of facts directly in issue in the case actually decided by the court and appearing from the judgment itself to be the Ground on which it was based, unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved. Counsel agreed that parties and the Lower Court has no choice but to obey the order of Court of Appeal for a retrial of the case by another Judge of Osun State judiciary. He called in aid the case of Rossek vs. ACB Ltd (1993) 8 NWLR (Pt.312) 382 to submit that a judgment of court of competent jurisdiction remains valid unless and until it is set aside by another court of competent jurisdiction or overruled by that same court that made same.
At this juncture, counsel submitted that since the trial court was aware by virtue of Exhibit D which is the judgment of the Court of Appeal in Appeal No.CA/I/118/86, ordering a retrial of Suit No.HIL/34/81, the trial court’s judgment must be held to be nullity as same amounted to an abuse of court process.

Counsel submitted that the Appellants did plead at paragraph 10 of their Statement of Defence and orally testified at page 33 lines 28 and 29 that the judgment of the Court of Appeal in Appeal No. CA/I/I18/86 was for retrial of the case by another judge and not refilling of new suit as the Respondent did. He relied on the case of Adigun vs. Secretary Iwo Local Government & Anor (1995) 5 SCNJ 209 @ 218 to submit that the Respondent wanted to subvert the order of retrial made by the Court of Appeal and same must be condemned as a blatant abuse of court process. Counsel cited the Supreme Court decision on what amounts to abuse of court process in the case of Ashley Agwasim & Anor vs. David Ojichie & Anor (2004) 4 SCNJ 199 @ 205 and urged us to allow the appeal.

Reacting on this issue, the learned counsel for the Respondent vide his Issue I, observed that it was after the judgment in Appeal No.CA/I/118/86 between Chief Ajewole Aluko vs. Emmanuel Olowe that the Respondent filed Suit No.HIL/66/94 that culminated in this appeal. He further observed that the Appellants predicated their Ground 1 in this appeal and the issue formulated therefrom on the interpretation of the judgment of the Court of Appeal in Appeal No.CA/I/118/86 which was tendered before the trial court as “Exhibit D”, and therefore submitted that Exhibit D show clearly that Plaintiff/Respondents’ (Appellants’ herein) claim then was dismissed in its entirety. He referred to page 30 lines 30 to 31 lines 1 – 5 of Exhibit D. Counsel submitted that the Court of Appeal expressed an alternate opinion in Exhibit D for the benefit of the Supreme Court when it was said “if they were wrong in dismissing the claim of the Plaintiff in Suit No: HIL/34/81”. He relied on the case of Elelu Habeeb & Ors. vs. A. G. Federation & Ors. (2012) 3 SCM 75 @ 114 – 115 to the effect that the Court of Appeal can express alternative opinion for the benefit of the Supreme Court in a matter. Counsel argued that the phrase “if I am wrong and the appeal on Issue 3 fails, then the appeal is allowed on Issue 2”, presupposes the expectation of a decision of a higher Appellate Court on the judgment should there by an appeal on the judgment; and there is indeed no appeal on the said judgment, Exhibit D by the Appellants herein. Therefore the Appellants are still bound by Exhibit D which dismissed their claim. Counsel further referred to the holding of the Court of Appeal in Appeal No.CA/I/118/86 (Exhibit D) on the Cross Appeal which was also dismissed at page 32, lines 10 to 25 therein as reinforcing the fact that the claim of the Appellants herein were dismissed in Exhibit D.

Counsel argued that Exhibit D cannot by any stretch of imagination be construed as making any order for retrial. All it did was to express an opinion which, had the judgment been appealed, the Supreme Court may have made an order for retrial; but there was no appeal. Counsel submitted that agreeing without conceding, that Exhibit D made a retrial order, the retrial would have been a retrial of Suit No.HIL/34/81 and not a prohibition order against the Respondent from filing a claim against the Appellants for acts of trespass on the Respondent’s land at Okutuope. By this token, counsel submitted that the case of Prince Yahaya Adigun vs. Secretary Iwo Local government (1995) 5 SCNJ 209 @ 218, is not relevant to this case.
Finally, counsel submitted that the claim of the Respondent in Suit No.HIL/66/1994 given rise to this appeal is a separate and fresh suit premised on the earlier judgment as in Exhibit A – F which affirmed ownership of the land in dispute on the Respondent and therefore does not constitute abuse of court process in any form. He urged us to resolve this issue for the Respondent.

RESOLUTION OF ISSUE I
In resolving this Issue 1, it is pertinent to state that the concept of abuse of judicial process is both imprecise and elastic. It involves situation of infinite varieties and conditions. The abuse of the process may lie in both a proper and improper use of the judicial process in litigations. However the use of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and interference with the efficient and effective administration of justice. In the case of Agwasim vs. Ojichie (2004) 4 SCNJ 199 @ 205 paragraphs 10 to 20, the Supreme Court opined thus:
“Clearly, that was an abuse of judicial process. It is trite law that the abuse of judicial process is the improper use of the judicial process by a party in litigation. It may occur in various ways such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue or a multiplicity of actions on the same matter between the same parties. It also occurs by instituting in different courts even though on different grounds; where two similar processes are used in respect of the exercise of the same right; for example, a cross appeal and Respondent’s notice e.t.c”

The contention of the Appellant in this appeal is that the institution of the suit that culminated in this appeal is an abuse of court process in view of the fact that the Court of Appeal had in Suit No. CA/I/118/86 ordered a retrial by the High Court of Osun State of Suit No.HIL/34/81 instituted by the Appellants herein. In other words, Appellants herein instituted Suit No.HIL/34/81 and judgment was made in their favour. Respondent herein appealed against that judgment in Appeal No.CA/I/118/86 and the Court of Appeal set aside the judgment in Suit No.HIL/34/81 in favour of the Respondent herein, and in its place ordered a retrial of Suit No.HIL/34/81. To be deduced from this factual situation is the fact that there is no judgment standing in favour of the Appellants herein by virtue of Suit No.HIL/34/81 which has been set aside by the Court of Appeal in Appeal No.CA/I/118/86. Also, it was the suit of the Appellants herein that the Court of Appeal set aside placing a duty on the Appellant herein to pursue their suit to a logical conclusion by ensuring that their suit is retried by another judge of the Osun State High Court.
At page 31 paragraphs 5 to 15 of Exhibit D the Court of Appeal held thus:
“Now when an appeal is allowed for failure of the learned trial Judge to make findings of fact on material and important issues, the appellate court will consider whether it will order a retrial or enter judgment for the Appellants. In the instant appeal, I am satisfied that the failure of the trial court to make findings of fact as to the root of title of the Plaintiffs is not a matter which depends wholly, or in part on the credibility of witnesses for me to say that this court is in as a vantage a position as the trial court, consequently the only course open to this court is to order a retrial.”
Finally at page 32 paragraph 5 of the same Exhibit D, the Court of Appeal held as follows:
“In the result the appeal is allowed on Issue 2. The judgment of the court below is set aside. The case is remitted to Osun State High Court of Ilesa Judicial Division for retrial before another Judge.”
This order,the Appellants herein failed to obey then to their own peril. One would have expected the Appellants herein being aware that there is no judgment anymore standing in their favour and the fact that the Respondent herein still has the subsisting judgment of Ilesa Customary Court in their favour which has not been appealed against, to vigorously and diligently pursue the retrial of their Suit No.HIL/34/81. Unfortunately for the Appellants herein, they went into their cocoon and slumbered as it were because they had possession they are not entitled to, until 1995, approximately two years after the Court of Appeal made the order, when the Respondent brought the suit that culminated in this appeal to enforce their right pursuant to the subsisting judgment of Ilesa Customary Court in 1950 in their favour.

It is clear that it was the suit of the Appellants herein that the Court of Appeal ordered to be retried and not the suit of the Respondent herein. Therefore there is no duty placed on the Respondent herein to ensure that Suit No.HIL/34/81, which was not his suit, is retried. A party who disobeys a clear court order, does so at his own peril. In the case of Ibafon Co. Ltd. vs. Nigerian Ports Plc (2000) 8 NWLR (pt.667) 86 @ 111, this court, per Aderemi, JCA (as he then was) had this to say regarding disobedience of court orders, thus:
“Generally, orders of the court must always be seen to be obeyed if the authority and administration of the court are not to be brought into disrepute, scorn or disrespect. So, disobedience of court’s orders is a matter to be viewed seriously; it is tantamount to contempt of court. It must be remembered that the principles enshrined in the law of contempt are there to uphold and ensure the effective administration of justice. They are the means by which the law vindicates the public interest in the due administration of justice.”
Also in the same vein, this court in the case of Tewogbade & Sons Ltd. vs. Governor of Oyo State (1991) 2 NWLR (Pt.171) 52 @ 519, per Sulu-Gambari, JCA opined thus:
“The Supreme Court in the Ojukwu’s case has made it clear that it would not and this court equally would not lend its machinery in aid of person who has and still continues to be in contempt of an order of court by indulging further the person who is still in contempt”
On the strength of the above factual situations and the authorities cited, it is clear that it was the Appellants herein that refused or neglected to obey the order of the Court of Appeal in Appeal No. CA/I/118/86, directing them to pursue a retrial of their Suit No.HIL/34/91 to their own peril and must not be heard to complain that that order has not been complied with. On this note, Issue One in this appeal is resolved against the Appellants.

ISSUE TWO
“Whether the Lower Court could rely on mere averments in pleadings to hold that the Plaintiff has proved the identity of the land in dispute by merely relying on proceedings in previous cases without oral evidence.”
Addressing this issue, learned counsel for the Appellants submitted that in a claim for declaration of title, the first duty of the claimant is to describe the land he is claiming with such reasonable degree of certainty and accuracy that the identity of said land will not be in doubt. He relied on the cases of Ezeokeke vs. Uga (1962) 2 SCNLR 199; Onataire vs. Omopkasa (1984) 12 SC 19. Learned counsel referred to leg I of the Plaintiff/Respondent’s claim and submitted that in proving the said Claim I, all the Respondent did was to tender certified copies of court’s proceedings and suruey plan such as previous Statement of Claim and Statement of Defence in Suit No.HIL/34/81; the judgment of Court of Appeal in CA/I/118/86, Record of Proceedings and a dispute survey plan. Counsel submitted that while paragraph 6 of the Respondent’s Statement of Claim contained on page 2 of the Record of Appeal, states that the land he was claiming is “lying at Okutuope along Ilesa-Akure Road, Ilesa”, whereas in his oral evidence at page 31 of the Record of Appeal, he testified that the land is “lying at along Ilesa-Akure Road at Okutuope via Imilu.” Counsel argued that the Respondent’s pleading and oral evidence cited above are contradictory and must go to no issue by virtue of the Supreme Court decision in the case of Shell Petroleum Development Company of Nigeria Ltd, vs. Kwameh Ambah (1999) 2 SCNJ 152.
Again, counsel submitted that at page 12 of the Record of Appeal, Respondent pleaded as follows: The Plaintiff will rely on the said plan filed by the Defendants in Suit No: HIL/34/81 at hearing whereas under cross-examination, the Respondent admitted that he surveyed the land in dispute and that the survey plan is before the court. Counsel submitted that the two pieces of evidence are contradictory since the Respondent did not produce any survey plan prepared by him; and “Exhibit A” which is a dispute survey plan tendered through PW1, did not corroborate the evidence of the Respondent that the land in dispute is at “along Ilesa/Akure Road at Okutuope via Imilu.” Learned counsel submitted that Exhibit A and features therein showed that the land in dispute belongs to the Appellants and not the Respondent. That there is no connection between Exhibit E and the land in dispute since Exhibit E did not state that the parcel of land earlier litigated upon is the same as that now lying at along Ilesa/Akure Road, Okutuope, Ilesa. Counsel reiterated that in a claim for declaration of title to land, that the identity of the land as pleaded must be proved with certainty, otherwise the claim will be dismissed. For this proposition, he relied on the case of Onwuchekwa vs. Ezeogu (2002) 9 SCNJ 125 @ 132 to 133.
Learned counsel further submitted that all the Respondent did was to mention the name of the land in dispute but did not identify clearly the area of the land he is claiming. That that is not enough description of the land he was claiming. He relied on the case of Odiche vs. Chibogwu (1994) 7 NWLR (Pt.354) 78. He finally submitted that the trial court was wrong to have relied on Exhibit A (the survey plan) and Exhibit B (the Statement of Claim) without any oral evidence to explain and connect the land in dispute with Exhibit A; and moreso when Exhibit A was not mentioned in Exhibit C (the judgment in Suit No. HIL/34/81). He urged us to resolve this issue for the Appellants.

Reacting, the learned counsel for the Respondent vide his Issue No. 2, submitted that the Appellants’ counsel, in raising this issue, did not advert his mind to relief No.1 of the Plaintiff/Respondent’s claim and paragraph 7 of the Statement of Claim wherein the Respondent described the identity of the land and pleaded to rely on the survey plan filed by the Defendants in Suit No.HIL/34/81 at the hearing of the case at the trial court. Counsel submitted that the said plan in the earlier suit was pleaded to show that the boundary and extent of the land is known to both parties. That that informed the Respondent’s decision to subpoena PW1, a Senior Registrar of the trial court to tender Certified True Copy of the survey plan of the land earlier litigated upon in Suit No.HIL/34/81 and the said survey plan was tendered as Exhibit A.
He submitted that PW1 also tendered the Certified True Copy of the judgment in Suit No.HIL/34/81 as Exhibit C; the judgment of the Court of Appeal is same as Exhibit D, while the proceedings and judgment of the Divisional Court in Suit No.69/50 as Exhibit E. Counsel therefore submitted that from Exhibits A, C, D and E, no one was in doubt about the identity of the land in dispute. And moreso, PW2 at page 31 lines 16 to 35 of the Record of Appeal, gave evidence that there had been a suit in court in respect of the land, the subject matter of this suit and reference was made to Exhibits C, D and E.

Learned counsel submitted that DW1’s evidence at page 32 lines 34-35 of the
Record of Appeal corroborated the evidence of the Respondent with regard to the identity of the land in dispute when DW1 testified as follows:
“I know the farmland in dispute. It is called Okutu-ope”.
And under cross-examination, DW1 admitted the existence of Exhibit A when he testified at page 33 lines 21 to 24 of Record of Appeal, thus:
“It is true we filed a plan in the action I instituted in 1981.
The same plan is the one in respect of the present land in dispute. The action that I instituted between my family and the plaintiff’s family is in respect of the farmland at Okutu-ope.”
Counsel submitted that the combined effect of the evidence of both the PW2 and DW1 is that the identity of the land in dispute is not in issue between the parties. On this note, counsel submitted that it is not possible to fault the holding of the trial court thus:
“I therefore hold that the farmland in dispute is as in Exhibit A. Further I agree with learned counsel for the plaintiff that evidence of a surveyor if available is desirable but not necessary where proof of identity of the land in dispute was unnecessary as applicable in this case.”

Learned counsel submitted quite strongly that the evidence of both parties showed that they were ad idem as to the identity of the land in dispute and same is supported by Exhibits A, C, D and E. he relied on the case of Awoyoola vs. Aro (2006) AFWLR (pt.308) 1319 @ 1333 paragraphs A – E; Aromire vs. Awoyemi (1972) 2 SC 1 @ 12. Finally on this issue, counsel called in aid the cases of Ogbu vs. Wokoma (2005) 14 NWLR (pt.944) 118; Makanjuola vs. Balogun (1989) 5 SCNJ 42 @ 50 to the effect that where parties by evidence, both oral and documentary are ad idem on the identity of the land in dispute, the mere fact that different names are given to the land or the area where the land is located is not fatal to the party claiming such land. Having submitted this much, learned counsel urged us to resolve this issue for the Respondent.

RESOLUTION OF ISSUE TWO
The submission of the Appellants’ counsel to the effect that in a claim for declaration of title to land, the identity of the land in dispute must be proved with certainty, otherwise the claim must be dismissed as correct as it is notorious. In the case of Yesufu Ogedengbe & Ors. vs. V. J. B. Balogun & Ors, (2007) 3 – 4 SCNJ 227 @ 234 paragraph 5, the Supreme Court held thus:
“It is now firmly settled in a plethora of decided authorities, that land to which a declaration of title is sought must be sufficiently identified. See the case of Ezeoke & Ors. vs. Uga & Ors. (1962) 1 ANLR (Pt.1) 482, 484. In other words a claim of title must be made to a defined area with certainty, See the case of Amodu Rufai vs. Ricketts & 5 Ors, (1934) 2 WACA 95.”
A claimant can prove the identity of the land he is claiming, usually by tendering a survey plan. But there have been several decided cases to the effect that a survey plan is not a sine qua non; that the identity of the land in dispute can be established either by a survey plan or by describing the land in dispute in his pleadings in such a clear manner that a surveyor could from it draw an accurate survey plan.

See:Ogunsina vs. Ogunleye (1994) 5 NWLR (pt.346) 625 @ 635.
However, it is settled in law that where the parties to a dispute know the land in dispute, the proof of identity of same is dispensed with or becomes unnecessary. In Yesufu Ogedengbe & Ors. vs. Chief J. B. Balogun & Ors. (supra), the Supreme Court in this respect has this to say at page 235 paragraph 5, thus:
“As a matter of fact and this is also settled, where the identity of the land in dispute is known to the parties and not in dispute, no plan is necessary. Absence of a plan is not fatal to a plaintiff’s claim if proper description of the land is available in the proceedings.”
Having said this much as regards the necessity of identification of any land in dispute, the poser now is whether it can be said that the identity of the land in dispute in the instant case is in issue. In other words, whether it can be said that the land in dispute in this case is not known by the parties. The contention of the Appellants in this regard is that the Respondent vide his paragraph 6 of his Statement of Claim, identified the land he is claiming as “lying at Okutu-ope along Ilesa-Akure Road, Ilesa” while in his oral evidence at page 31 of the record of appeal, he identified the land he is claiming as “lying at along Ilesa-Akure Road at Okutu-ope via Imilu.” Counsel argued that this is contradictory identification.
It is settled law that a party who testify and contend otherwise than pleaded is tantamount to making a case contrary to pleadings. A party cannot approbate and reprobate. However, for contradictions to be able to defeat a party’s case, it must be substantial. In this regard, this court had the opportunity to pronounce on contradictions that will affect a party’s case in the case of Ezekwesili vs. Onwuagbu (1998) 3 NWLR (Pt.541) 217 @ 242, thus:
“The state of the law is that contradictions, in order to upset a judgment on appeal must be material or of some magnitude. They must amount to a substantial disparagement of the witness in terms of veracity. Minor contradictions of title or no substance, hanging on the periphery of the case, will not result in the reversal of a judgment on appeal.”

Did the addition of the phrase “via Imilu” by the Respondent’s oral testimony amount to contradiction substantial enough to discredit his testimony? I think not. I have carefully considered that piece of evidence in conjunction with other pieces of evidence in this case and found that the Respondent’s description of the land he was claiming as “lying at along Ilesa-Akure Road, at Okutu-ope via Imilu” is just another way of identifying the same piece of land “lying at Okutu-ope along Ilesa-Akure Road, Ilesa.” This is so given the fact that other evidence show that the parties are in agreement as to the identity of the land in dispute. For example, DW1, Emmanuel Olowe orally testified in-chief at page 32 line 34 thus:
“I know the farmland in dispute. It is called Okutuope.”
Furthering on this agreement, DW1 under cross-examination at page 33 lines 21 – 24 testified thus:
“It is true we filed a plan in the action I instituted in 1981. The same plan is the one in respect of the present land in dispute. The actions that had instituted (sic) between my family and Plaintiff’s family is in respect of the farmland at Okutuope.”
It is trite that where parties agree on the identity of the land in dispute, the fact that different descriptions or name are given to the said land in dispute is of no moment and cannot be regarded as contradictory. In the case of John I. Ogbu vs. Best Wokoma (2005) 14 NWLR 118 @ 139 paragraph B, the Supreme Court in this regard held thus:
“The law is also settled that where the parties, by evidence adduced both oral and documentary, are ad idem on the identity of the land in dispute, the fact that different names are given to the land or the area where the land is located is called different names is not fatal to the party claiming such land.”
In any case, even if the oral testimony of the Respondent that the land he is claiming is “lying at along Ilesa-Akure Road, at Okutu-ope via Imilu” is held to contradict his pleading that the land he is claiming is “lying at Okutu-ope along Ilesa- Akure Road, Ilesa” and jettisoned from the record of court, that would still not put the identity of the land in dispute in issue given the fact that DW1 had testified as reproduced above that he knows the land in dispute. It is therefore clear that that Respondent’s averments in his pleadings were corroborated by both his oral testimony and that of the DW1. The learned trial Judge was right to have held that the identity of the land in dispute was not in issue and as such survey plan is desirable but not necessary. To this extent, this Issue No. 2 is also resolved against the Appellants.

ISSUE THREE
“Whether the Plaintiff having regards to the pleadings and evidence before the trial court has discharged the burden of proof placed on him and therefore entitled to judgment.”
In arguing this case, learned counsel for the Appellant submitted that in land cases, the claimant must succeed on the strength of his case and not on the weakness of the Defendant’s case. He relied on Kodilinge vs. Mbanefo Odu (1935) 2 W.A.C.A. 336; Adeleke vs. Iyanda (2001) 6 SCNJ 101 @ 107. Counsel submitted that in an attempt to prove his case, Respondent tendered through PW1, Exhibits A, BI and BII, D and E without more. Further, learned counsel submitted that contrary to the pleadings of the Respondent as contained in paragraphs 6 and 19(i) of the Statement of Claim (pages 12 and 13 of the Record of Appeal) the Respondent who testified as PW2 described the land in dispute as that lying at along Ilesa/Akure Road, at Okutu-Ope via Imilu which in the main is contradictory. Counsel argued that when evidence is at variance with settled pleadings, such evidence goes to no issue. He relied on Abubakar vs. Joseph (2008) 50 WRN 1 @ 28 – 29 lines 25 to 50; Shell BP vs. Abadi (1974) 1 S.C. 23 @ 45.

Counsel submitted strongly that Exhibit E did not in any way suggest that the land earlier litigated upon is the same as the one in dispute now and there is no evidence on record to link Exhibit A to the land in dispute. Counsel argued that PW2 testified in-chief that he has economic crops and buildings on the land in dispute and yet that Exhibit A did not show any crops, farmland and/or buildings as belonging to the Respondent rather that Exhibit A seeks to confirm that the land in dispute belongs to the Appellants who planted the economic crops and buildings on the land.

At this juncture, counsel submitted that it is the duty of learned trial Judge to carefully examine the evidence, understand and appreciate the issues he has to resolve in a case and then proceed to resolve them on the basis of what is in issue and what has been demonstrated upon by evidence by parties. He relied on the cases of Bornu Holdings Ltd. vs. Bagoco (1971) 1 ALL NLR 324 @ 330; Adeniyi vs. Adeniyi (1972) 4 SC 10 @ 17, Learned counsel called in aid the case of Duru vs. Onwumelu (supra) to the effect that where as in this case, the claimant based his claim for declaration of title to land and possession, on long possession, he must prove acts of ownership and possession of the land in dispute over a sufficient length of time numerous and positive enough to warrant the inference that he is the exclusive owner.

Counsel then submitted that the evidence of acts or ownership and possession led by the Respondent is not enough given the fact that the Dispute Survey Plan tendered by him could not show the crops and buildings he alleged he has on the land in dispute. Learned counsel finally submitted that the judgment of the trial court made in favour of the Respondent was perverse, wrongful and unsupportable by the evidence led by the Respondent. He urged us to resolve this issue for the Appellants and set aside the judgment of the trial court.

Reacting, learned counsel for the Respondent submitted that in an effort to prove his case, the Respondent tendered Exhibits A, BI and BII, C, D, E and F, and testified that he sued the father of the Appellants in Suit No.69/50 and won and which judgment is contained in Exhibit E. Counsel argued that even though the Appellants denied knowledge of the Suit No. 69/50, he admitted under cross-examination at page 33 of the Record of Appeal that his father’s name was Olowe Gidigbi also known as David Olowe Gidigbi. Counsel submitted that the judgment in Exhibit E is binding on the Appellants who are heirs of Olowe Gidigbi. He relied on Kamalu vs. Umunna (1997) 5 NWLR (Pt.505) 321 to the effect that a native court judgment may operate as estoppel per rem judicata or issue estoppel; and same was the position of the Court of Appeal in Exhibit D in this case.
Learned counsel further submitted that the law is that where there is no difficulty in identifying the land, a declaration should be made with or without it being based on a survey plan. He called in aid Etiko vs. Aroyewon (1959) 4 FSC 129 and Ajibade Garba vs. Abu Akacha (1966) NMLR 62.
Counsel reiterated that the learned trial Judge gave judgment based on oral evidence, survey plan and previous judgment already given in favour of the Respondent and as such proper and justified. He relied on Atolagbe vs. Shorun (1985) 4 SC 2 54 @ 275; Awoyoola vs. Aro (supra).

Counsel submitted that a party can rely on previous judgment in his favour to predicate a claim against any party who trespasses on his land, and that only a person in possession can maintain an action in trespass. And that when the issue is as to which of the two claimants has a better right to possession, the law will ascribe such possession to the party who proves a better title. Equally, that when two persons are on land claiming possession, trespass can only be at the suit of that party who can show that title to the land is in him. He relied on Umeobi vs. Otukoya (1978) 4 SC 33.
Further, learned counsel called in aid the case of Agunla vs. Sijuwola (1984) 1 SCNLR 410, to the effect that it is trite that once party has shown a better title to a disputed land, the possession of the other party becomes an adverse possession and the law does not recognize concurrent possession by two adverse claimants to title and a trespasser cannot take possession by his own trespass.
Counsel submitted that the evidence of the Appellant on this matter is not that of possession but encroachment which led to the institution of this suit and the damages awarded by the trial court is therefore justified.
Finally, counsel submitted that it is equally trite that where the findings of fact by trial court are supported by evidence on record as in the instant case, such findings will not be disturbed by the appellate court. He urged us not to disturb the findings and decision of the trial court in this matter and disallow this appeal.

RESOLUTION OF ISSUE THREE
It is trite in law that the Plaintiff must succeed on the strength of his own case and not on the weakness of the Defendant’s case unless the Defendant’s case supports his claim. See: Kolidinye vs. Odu (1935) 2 WACA 336 and Adeleke vs. Iyanda (2001) 6 SCNJ 101 @ 107. In other words, while the claimant must succeed on the strength of his case, he can take advantage of the case of the Defendant if it supports his own case. It is equally trite that it is the duty of the Plaintiff to prove his title clearly, emphatically, satisfactorily and cogently. See: Onibudo vs. Akibu (1982) 7 SC 60 @ 84 – 85; Olaoti vs. Balogun (1996) 4 NWLR (Pt.440) 44 @ 54. In this regard, this court had the opportunity to pronounce on the burden of proof of title to land. In the case of Ekanem vs. Akpan (1991) 8 NWLR (Pt.211) 616 @ 631, thus:
“In an action for declaration of title to land, it is trite law that the Plaintiff must prove title or prove to have been in possession as approved in the case of Ekpo vs. Ita II NLR 68 and held further in the case of Idundun vs. Okumagba (1976) NMLR 200.”
In an effort to prove his case, a party is at liberty to marshal any evidence he hopes would assist his case. It is for the court to determine the relevance and admissibility of such evidence and the ultimate probative value to be attached to same. Towards this end, the Respondent, tendered (1) Exhibits & a Certified True Copy of the Survey Plan of the land in dispute earlier tendered in Suit No.HIL/34/81. (2) Exhibit BI and BII which are Certified True Copies of the Statements of Claim and Defence respectively in Suit No. HIL/34/81. (3) Exhibit C which is Certified True Copy of the High Court Judgment in Suit No. HIL/34/81. (4) Exhibit D which is Certified True Copy of the judgment of Court of Appeal in Appeal No. CA/I/118/86. (5) Exhibit E was the Certified True Copies of Record of Proceedings and Judgment of the Divisional Court in Suit No.69/50. (6) Exhibit F was a Certified True Copy of a letter from Ilesa Local Government dated 5/12/1979 tendered in Suit No.HIL/34/81. It is on record that all these exhibits were pleaded. The first contention of the Appellants on this issue is the alleged variance of the Respondent’s pleading that the land he is claiming is at “along Ilesa/Akure Express Road, Ilesa” with his oral evidence that the land he is claiming is along “Ilesa-Akure Road, at Okutuope via Imilu” has been taken care of while resolving Issue No. 2 in this appeal. I need not say more on that. On the second contention of the Appellants’counsel on this issue to the effect that Exhibit E does not suggest that it was the same land litigated upon in Suit No. 69/50 that is in dispute in the instant case. The status of Suit No.69/50 in relation to the land in the present suit has been settled by the Court of Appeal in Appeal No. CA/I/118/86 (i.e. Exhibit D), At page 28 of Exhibit D, paragraph 15 and 20, this court held as per the status or connection of suit No.69/50 to the land in dispute, thus:
“I have read the whole of the proceedings in suit 69/50 and as I have said earlier, the Defendant David Olowe defended action on behalf of Gidigbi family. I have therefore come to the conclusion that all the essential elements of the plea of res judicata have been established in this case. In my judgment, the successful plea of res judicata raised by the Defendant ousts the jurisdiction of the court below in which it was raised. The answer to the third issue therefore is that the learned trial Judge was wrong in rejecting the defence of res judicata relied upon by the defendant.’
This finding of fact by this court in Appeal No.CA/I/118/86 has not been appealed against and we see no reasonable cause to overrule same now in this appeal.
Finally on this issue, the Appellants contend that where as it was in this case the Plaintiff based his right to a declaration of title to the land on the fact of long possession, the law is that he must prove acts of ownership and possession of the land in dispute over a sufficient length of time numerous and positive enough to warrant the inference that he is the exclusive owner, While I agree with the above submission as the position of the law, I make haste to point out that that does not apply to the facts at stake here, because the Appellant by virtue of the evidence he tendered to establish his case, he was not just proving his right to title and possession of the land in dispute, rather he is seeking the court to give effect to the declaration of the Native Court of Ilesa, made in his favour in Suit No.69/50 which has neither being appealed against nor set aside by any appellate court. All the Exhibits he tendered bears this out.
The position of the law is that once a party has shown a better title to a land in dispute, the possession of the other party becomes an adverse possession and the law does not recognize concurrent possession by two adverse claimants to title.

A trespasser, no matter how long he is in possession cannot take possession by his own trespass. In the case of Chukwueke & Anor. Vs. Okoronkwo & Ors. (1999) 1 NWLR (Pt.687) 410 @ 418, the Supreme Court, per Belgore J.S.C. in this regard held thus:
“Any act of trespass remain so and the rightful owner of the land once he is aware of the trespass can complain. The very fact that the Defendants encroached on the land to carry act of quarrying without consent of the Plaintiff, is an act of trespass and cannot become act of possession. As for the land in dispute, the parties at the court were ad idem and there is certainty about that. The evidence of the Defendants supports that of the Plaintiff. As two previous cases on the same land favoured the Plaintiff res judicata applied.”
In this regard also, Section 59 of the Evidence Act, 2011 becomes pertinent. Section 59 provides as follows:
“The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, is relevant fact, evidence of which is admissible when the question is whether such court ought to take cognizance of such suit or to hold such trial.”
In view of this position of the law and the fact that the Respondent pleaded and led evidence on Exhibits A, B1 and B2, C, D and especially E in this matter, I am inclined to, and I so hold that the Respondent did not predicate his suit that culminated in this appeal on long possession but on previous subsisting judgment on Exhibit E. On this note, this Issue 3 is also resolved against the Appellants.

Having resolved the three issues in this appeal, against the Appellants, this appeal fails in its entirety and is accordingly dismissed as lacking in merit. Therefore, the judgment of Hon. Justice F. O. Ogunsola of the High Court of Justice, Osun State, Ilesa Division in suit No.HIL/66/94 delivered on 10th day of May, 2001 is hereby affirmed. I make no order as to cost in view of the chequered history of this case.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother Mohammed Ambi-Usi Danjuma, JCA, just delivered. His Lordship has painstakingly considered and ably resolved all the issues canvassed in this appeal.

I agree entirely with his reasoning and conclusions. I also find no merit in the appeal. I dismiss it accordingly. I abide by the consequential order(s) contained in the lead judgment.

JAMES SHEHU ABIRIYI, J.C.A.: I agree

Appearances

O. C. Ogbewe Esq.For Appellant

AND

Kazeem A. Gbadamosi with B. D. PhillipsFor Respondent