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CHIEF AJIBOLA ADENIYI FALUYI & ORS v. ENGINEER SAMSON OLUSEGUN OGUNSEYE & ORS (2019)

CHIEF AJIBOLA ADENIYI FALUYI & ORS v. ENGINEER SAMSON OLUSEGUN OGUNSEYE & ORS

(2019)LCN/13594(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of June, 2019

CA/IB/149/2013

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

Between

1. CHIEF AJIBOLA ADENIYI FALUYI

2. PRINCE O.E.O. FAWEMIMO

3. RASIDI ADEJARE FALUYI

(On behalf of themselves and other members of the Faluyi family of Ijako-Ota) – Appellant(s)

AND

1. ENGINEER SAMSON OLUSEGUN OGUNSEYE

2. JOSHUA AKANBI ODEDIRAN

3. KOLAJO AFUWAPE OLAOMO

(On behalf of themselves and other members of Ijako Community)

4. MR. IDOWU OPEODU

5. PRINCE SOLOMON ADEWALE GBADEBO

6. MR. AYO FAPOHUNDA

7. MR. SEGUN ADEOYE

8. MADAM WURAMOTU ADUKE LAWAL – Respondent(s)

RATIO

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO IT

It is the settled law that it is the duty of the trial Court to evaluate and ascribe evidential value or weight to both oral and documentary evidence admitted by it. Where the trial Court has dutifully and correctly evaluated the evidence and correctly assigned due weight to them before arriving at its decision, the Appeal Court will not interfere. However, where the trial Court shirked its duty of evaluating such admitted evidence; the Appellate Court is well placed to do what the trial Court failed to do. See Bello v. FRN (2018) LPELR 44465 (SC); Olaosun v. Ogunsina (2018) LPELR 45031 (CA) and Abidoye & Ors v. Alawode & Ors (2001) 6 NWLR (pt.709) 463. PER TSAMMANI, J.C.A.

THE APPLICATION OF ISSUE ESTOPPEL

Now, issue estoppel is recognized by Section 174 of the Evidence Act, 2011. The application of issue estoppel is based on the principles of law that, a party is not allowed to contend the contrary of any specific point which had been distinctly put in issue and determined with certainty against him. For issue estoppel to apply, the following conditions must be satisfied:

(a) the parties in the previous and the current proceedings are the same;

(b) the issues are the same;

(c) the issues are material to the cause of action in the previous and in the latter suit; and

(d) the issue must have been resolved in the previous case.

See the cases of Bwacha v. Ikenya & Ors (2011) 3 NWLR (pt.1235) 610; Ebba & Ors v. Ogodo & Ors (2000) 10 NWLR (pt.675) 387; Oyerogba & Anor v. Olaopa (1998) 13 NWLR (pt.583) 509 and Oshoboja v. Amida & Ors (2009) 18 NWLR (pt.1172) 188. Obviously, it would be the duty of the party who relies on issue estoppel to plead and lead evidence of that fact. In other words, the specie of estoppel relied on must be pleaded and proved. See Okonkwo & Ors v. Kpajie & Ors (1992) 2 NWLR (pt.226) 633; and Lawal v. Union Bank of Nigeria Plc (1995) 2 NWLR (pt.378) 407. PER TSAMMANI, J.C.A.

WHETHER OR NOT DOCUMENTARY EVIDENCE IS THE BEST EVIDENCE

In other words, a document tendered in Court is the best evidence in proof of the contents thereof, and no oral evidence will be allowed to either discredit or contradict the contents thereof except where fraud has been alleged in the pleadings. See Olanlege v. Afro Continental (Nig.) Ltd (1996) 7 NWLR (pt.458) 40; Emeje v. Positive (2010) 1 NWLR (pt.1174) 48 at 69 and Tafida & Anor v. Garba (2013) LPELR 22076 (CA). However, where a party has led both oral and documentary evidence on an issue, but it is found that the oral evidence contradicts the documentary evidence, tendered, the evidence on the fact in issue cannot be said to be credible. As my learned brother, Abiru, JCA observed in Odum v. Chibueze (2015) LPELR 40895 (CA): It is elementary law that where oral evidence and documentary evidence tendered by a party in proof of a fact say different things, the party cannot be said to have led credible and cogent evidence in proof of that fact. PER TSAMMANI, J.C.A.

HARUNA SIMON TSAMMANI, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Ogun State High Court holden at Ota delivered on the 28th day of October, 2011 in Suit No: HCT/133/2000.

The suit subject of this appeal was instituted as Suit No: HCT/133/2000 by the Appellants herein as Plaintiffs against the Respondents as Defendants. However, by a Suit No: HCT/6/1989, the said Respondents in this appeal, had instituted their own claim against one Chief Odutola for trespass on a part of the land in dispute in this appeal. Considering the pleadings in the two suits, the Court below consolidated same in order to avoid multiplicity of actions. The two suits having been consolidated, were heard and determined together. This appeal is however limited to the determination of the trial Court in Suit No: HCT/133/2000.

The suit instituted by the Appellants against the Respondents was initiated by a Writ of Summons and Statement of Claim. While the Writ of Summons was dated and filed on the 28/4/2000, the Statement of Claim was dated the 16/10/2000 but filed on the 19/10/2000. The Statement of Claim was amended,

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with the last and final amendment being the 2nd Further Amended Statement of Claim and Plans dated and filed on the 17/6/2009. Therein, the Plaintiffs/Appellants claimed as follows:

(i). A Declaration that the Plaintiffs for themselves and other members of Faluyi Family are entitled to the Statutory Right of Occupancy over a piece or parcel of land situate, lying and being at Ijako, near Ota, Ogun State and verged Black on Composite Plan No. BO/DISP01/2005/OG dated 5/12/2005 drawn by B. O. Oleyele Registered Surveyor.

(ii). Declaration that the 1st Defendant has no valid or good title, right or interest to pass to the 2nd, 3rd, 4th, 5th, 6th and 7th Defendants in respect of any land which falls within the area verged Red on Plan No. OG/545/2005/LID-01 dated 19/11/2005 and made by F. B. Elegbeleye, Registered Surveyor, situate and being at Ijako Village, Otta, Ogun State and composited on Plaintiffs Plan No. BO/DISP01A/2005/OG dated 28/6/2005.

(iii). The sum of N400,000.00 being special and general damages for continuing trespass committed by the 1st and 2nd Defendants on the said land, sometime in 1996 and which still

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continues.

(iv). The sum of N400,000.00 being special and general damages for continuing trespass committed by the 1st and 3rd Defendants on the said land, sometimes in 1996 and which still continues.

(v). The sum of N400,000.00 being special and general damages for continuing trespass committed by the 1st and 4th Defendants on the said land, sometime in 1996 and which still continues.

(vi). The sum of N400,000.00 being special and general damages for continuing trespass committed by the 1st and 5th Defendants on the said land, sometime in 1996 and which still continues.

(vii). The sum of N400,000.00 being special and general damages for continuing trespass committed by the 1st and 6th Defendants on the said land, sometime in 1996 and which still continues.

(viii). The sum of N400,000.00 being special and general damages for continuing trespass committed by the 1st and 7th Defendants on the said land, sometime in 1996 and which still continues.

(ix). Injunction restraining the Defendants, their agents, privies, servants or assigns from committing further trespass on the said land.

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In response, the initial 1st Defendant, Chief Zaccheus Oderinde (now deceased and substituted with the 1st 3rd Respondents herein), filed a Statement of Defence. However, same was amended several times with the last amendment being the 6th Further Amended Statement of Defence and Plan dated the 15/7/2010 but filed on the 19/7/2010. Therein, the 1st 3rd Defendants/Respondents denied the claim against them as being misconceived, speculative, vexatious and an abuse of the process of the Court. The 2nd 7th Defendants, (now 4th 8th Respondents) filed a Joint Statement of Defence which was also amended by their Amended Statement of Defence dated the 5/5/2010 and filed the same day. Therein, the said 2nd 7th Defendants urged the Court to dismiss the Plaintiffs/Appellants claims as being misdirected, frivolous, vexacious and constitute an abuse of process. The Plaintiffs/Appellants filed an Amended Reply to 6th Further Amended Statement of Defence of the 1st Defendants (1st 3rd Respondents).

At the trial, the Appellants herein, called six (6) witnesses who testified as the DW1 DW6 and also tendered Exhibits

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AL AQ respectively. The 1st 3rd Respondents who were the 1st 3rd Defendants in this Suit No: HCT/133/2000, called fourteen (14) witnesses and tendered Exhibits A Z. The 2nd 7th Defendants (4th 8th Respondents herein), called four (4) witnesses who testified as DW9 DW12 and also tendered Exhibits AV AZ4. At the close of evidence, parties filed and exchanged Written Addresses and in a well-considered judgment delivered on the 28/10/2011, the learned trial Judge dismissed the Plaintiffs/Appellants claims. The Appellants being unhappy with the judgment have filed this appeal.

The Original Notice of Appeal was dated the 24/01/2012 but filed on the 25/1/2012. Same was duly amended with the extant Notice of Appeal being the Further Amended Notice of Appeal dated the 23/5/2018 and filed on the 24/5/2018. It consists of nine (9) Grounds of Appeal. The parties complied with the Rules of this Court by filing Briefs of Arguments. The Appellants Brief of Arguments is the Amended Appellants Brief of Arguments

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dated the 23/5/2018 and filed on the 24/5/2018. Therein Nine (9) issues were distilled for determination as follows:

(1). Whether the Appellants lack locus standi to sue the 4th, 5th, 6th and 8th Respondents. (Ground One).

(2). Whether, from the totality of the evidence before the Lower Court, the Learned Trial Judge was right to dismiss the case of the Appellants against the 7th Respondent. (Ground 2).

(3). Whether the Learned Trial Judge was right when he held that the Judgment in Suit Nos. 23CV/75 and AB/13A/84 (Exhibits J and A) cannot avail the Appellants. (Ground 3).

(4). Whether the Learned Trial Judge was right when he dismissed the entire claim of the Appellants against the 1st to 3rd Respondents based on the evidence that one of the Appellants ancestor granted a small portion of the land delineated Exhibit AL to the 1st Defendants father. (Ground 4).

(5). Whether the Learned Trial Judge was right to hold that the Appellants traditional evidence collapsed because it lacks substructure. (Ground 5).

(6). Whether it can be said from the totality of the evidence before the

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Learned Trial Judge that the 1st to 3rd Respondents version of traditional history is preferable to the Appellants version. (Ground 6).

(7). Whether from the totality of the evidence before the Court, the Learned Trial Judge was right to refuse the reliefs sought by the Appellants. (Ground 7).

(8). Whether the Learned Trial Judge was right to grant the 1st to 3rd Respondents claim to a declaration of title to the entire area verged Red excluding the portion verged Black as described and delineated in Survey Plan No: OG/545/2005/LID-1. (Ground 8).

(9). Whether the Judgment of the Learned Trial Judge is against the weight of evidence. (Ground 9).

The extant Respondents Brief of Arguments is the consequential Amended Brief of Arguments dated and filed on the 14/9/2018. Therein, three issues were formulated for determination as follows:

1. Whether the Learned Trial Judge was wrong in calling for address on the issue of locus standi raised by 2nd 7th Defendants/Respondents (now 4th 8th Respondents) on the portions they allegedly occupy which are shown to have been acquired by Ogun

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State Government. Alternatively, whether Appeal against holding on locus standi or acquisition is competent having regard to the fact that the holding was based on consent of the parties at the Court below.

(Ground 1).

2. Whether the Learned Trial Judge was wrong in failing to make order of trespass against the 5th Defendant in respect of the portion marked No.5 on Plan, Exhibit AL, when the 5th Defendant (now 7th Respondent) was not linked to any portion of the land to warrant finding of trespass against him.

(Ground2).

3. Whether the findings and conclusions of the Learned Trial Judge were perverse and or unsupported by evidence on record as to warrant interference by Appellate Court. (Grounds 3 9).

Now, before I wade into the substantive issues in this appeal, let me remind myself that the Respondents have raised and argued a Preliminary Objection in their Brief filed on the 14/9/2018. In pages 3 7 of the said Brief of Arguments, Alhaji A Lasun Sanusi, SAN who settled the Respondents Brief of Arguments raised a Preliminary Objection to all the Grounds of Appeal on the ground that

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the said grounds offend the provisions of Order 7 Rule 2(2) and (3) of the Court of Appeal Rules, 2016. That the grounds are either without particulars or with particulars that are patently unrelated to the grounds of appeal. Referring to Order 7 Rule 2(2) of the Court of Appeal Rules, 2016 it was submitted that, each ground of appeal must show particulars of error in law or misdirection as the case may be. Furthermore, that the ground must not be argumentative or narrative. That aside Ground 9 which alleges that the judgment is against the weight of evidence, the other grounds are not competent. That, rather than specifying the particulars of error in law or misdirection, the Appellants only embarked on following each ground of appeal with arguments or narrations in violation of the Rules of this Court. The case of Nwokoro v. Onuma (1999) 12 NWLR (pt.631) 342 at 352 paragraph D was then cited to submit that it is trite law that any ground of appeal not supported by particulars is incompetent and ought to be struck out.

Upon the above arguments, learned senior counsel for the Respondents went on to argue that, even if it is conceded that the narrations or

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arguments in each of Grounds 1, 2, 3, 4, 5, 6 and 8 constitute particulars, they cannot be so treated as particulars, because each speaks a different language from the Grounds to which they relate. The cases of Agip v. Agip (2010) 5 NWLR (pt.1187) 348 at 411; Anibire v. Womiloju (1993) 5 NWLR (pt.295) 623 at 635 paragraphs D E; Nwadike v. Ibekwe (1987) NWLR (pt.67) 718 at 747 paragraph C; Globe Fishing Industries Ltd v. Coker (1990) 7 NWLR (pt.162) 265 at 300; Shahim v. Akinola (1993) 5 NWLR 9pt.294) 434 at 446 and Kano . v. G & H (Nig.) Ltd (2002) 2 NWLR (pt.751) 420 at 444 paragraphs D F were cited in support. Learned Counsel then argued extensively on each of the Grounds of Appeal he contends are either argumentative; narrative, or do not support the Grounds of Appeal. We were accordingly urged to uphold the objection and to strike out all the Grounds of Appeal save for Ground 9 which attacks the weight of evidence.

In response, J. A. Badejo, SAN who settled the Appellants Brief contended that Ground A of the Preliminary Objection was not argued in the Respondents Brief filed on the 14/9/2018 and therefore deemed

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abandoned. That the remaining objections relate to technical point; and learned senior counsel for the Respondents raised no objection when the Amended Notice of Appeal was regularized by order of this Court. Learned Senior Counsel for the Appellants however submitted that Grounds 1 8 of the Further Amended Grounds of Appeal are concise, succinct, explicit and sufficient enough to keep the Respondents in no doubt as to the complaints of the Appellants against the judgment of the Lower Court; and therefore satisfy the requirements of Order 7 Rule 2(1), (2) and (3) of the Court of Appeal Rules, 2016.

It was therefore submitted by learned counsel for the Appellants that, Grounds 1 8 have particulars which explain the Grounds further without arguments and are discernible; the essence of which is not to take the Respondents by surprise. In other words, that the Respondents have not been kept in the dark as to the case they are meeting on Appeal; and that the objective test for determining the competence of a Ground of Appeal is as espoused by the Supreme Court in Aderounmu v. Olowu (2000) 4 NWLR (pt.652) 253 at 265 266 paragraphs F

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A and 277 paragraphs B D and Attorney-General of the Federation v. A.N.P.P. (2003) 15 NWLR (pt.844) 600 at 645 paragraphs E H. That all the authorities cited and relied upon by the Respondents were decided before the year, 2010 but subsequent decisions of this Court and of the Supreme Court have leaned towards guaranteeing an Appellants Constitutional Right of Appeal. The case of Melaye v. Tajudeen (2012) 15 NWLR (pt.1323) 315 at 330 331 paragraphs F B was cited in support.

Learned Senior Counsel for the Appellant also contended that, assuming (but not conceding) that, any portion of Grounds 1 8 are argumentative and/or narrative, they have afforded sufficient notice and information to the Respondent of the precise nature of the complaint of the Appellants and the issues that are likely to arise in the appeal. Furthermore, that none of the Grounds 1 8 can be described as vague and clueless; as they had afforded the Respondents the opportunity of formulating their own issues from the Grounds complained against. That the Preliminary Objection therefore lack substance as the Rules of Court are

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made as aids to doing substantial justice. Order 7 Rule 5 of the Court of Appeal Rules, 2016 were referred to, and to uphold the objection will be tantamount to denying the Appellants right to fair hearing. We were accordingly urged discountenance the Preliminary Objection and dismiss same.

Now, Order 7 Rules 2(2), (3) and 3 of the Court of Appeal Rules, 2016 stipulate that:

2(2). Where a ground of appeal alleges misdirection or error in law, particulars and the nature of the misdirection or errors shall be clearly stated.

(3). The Notice of Appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.

3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.

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The above cited rules of this Court provide for the requirements of a valid notice and grounds of appeal. A valid Ground of Appeal must therefore be concise and distinctly stated; and must not be argumentative. It must be clear and explicit as to disclose a reasonable ground of appeal. It must therefore not be vague or general in terms. Thus, any Ground of Appeal that is argumentative or set in a narrative form; or that is vague or general in terms is liable to be struck out.

It should however be noted that a Ground of Appeal is intended to convey to the Court and the Respondent the nature of the complaint the Appellant intends to canvass or present before the appeal Court. That is why the Rules of this Court require that each Ground of Appeal, save for the omnibus ground, must be accompanied by particulars. The particulars explain the nature of the complaint in the ground of appeal and thereby go to inform the Respondent and the Court of the nature of the errors or misdirection complained of. For that reason, there must be synergy between the ground of appeal and the particulars thereof. Where the particulars support the grounds of appeal, the complaint of

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the Appellant will be clearly conveyed to the Court and the Respondent. Accordingly where the grounds are vague or narrative; or there is a disconnect between the grounds and the particulars thereof, such ground would be defective and incompetent. See Federal Medical Centre Ido-Ekiti v. Olajide (2011)11 NWLR (pt.1258) 256; Aribo v. Central Bank of Nigeria (2011) 12 NWLR (pt.1260) 133 and Olufeagba v. Abdul-Raheem (2009) 18 NWLR (pt.1173) 384.

As stated earlier, the purpose of supporting grounds of appeal with particulars is to convey to the Court and the Respondent, the complaint of the Appellant against the judgment. Accordingly where the grounds of appeal together with the particulars have sufficiently disclosed the nature of the complaint of the Appellant, the ground of appeal will be sustained, notwithstanding that it is vague or narrative; or that the particulars do not appear to support the grounds. See Nwosu v. PDP & Ors (2018) LPELR 44386 (SC); Regd Trustees of C.A.C. v. Dada (2017) 2 NWLR (pt.1548) 61 at 77 and Ifaramoye v. State (2017) 18 NWLR (pt.1568) 457 at 477. Thus, once the grounds of appeal have disclosed the

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Appellant?s complaint against the decision he is displeased with, the lack of or defective particulars thereof will not necessarily render the ground of appeal incompetent. See also, Professor E.A. Abe v. University of Ilorin & Anor (2013) LPELR 20643 (SC).

I have carefully perused the Grounds of Appeal as set out in the Further Amended Notice of Appeal filed on the 24/5/2018. Having thus considered same, I cannot see how the nature and form of the particulars have affected the substance of the Appellants complaints against the judgment appealed against. The grounds of appeal are clear and precise and the particulars thereof in respect of each ground have clearly set out the substantive law that the Appellant alleged have led to the error or misdirection complained of in the grounds of appeal. I refer here to the case of Dakolo v. Rewane-Dakolo & Ors (2011) LPELR 915 (SC) where the Supreme Court stated thus:

Grounds of Appeal are to be differentiated from their particulars; while the grounds of appeal must clearly state what the Appellant is complaining about, whereas the essence of the particulars of a ground of

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appeal is to set out briefly the aspect of the substantive law or procedural law that is affected by the error or misdirection identified or complained of in the grounds of appeal.

On that note, it is my view that the Preliminary Objection lacks merit. It is accordingly dismissed.

On the substantive appeal, learned senior counsel for the Appellant began by arguing issue 1. Therein, learned counsel for the Appellant argued that, the trial Court held that the 4th, 5th, 6th and 8th Respondents land fell within the portion acquired by the government; and therefore the Appellants lack the locus standi to maintain the claim against them. Furthermore, that since the 1st 3rd Respondents admitted that having sold the land to the 4th 8th Respondents they had no title to the land, the Appellants claim against the 1st 3rd Respondents for declaration of title had become belated. That, the learned trial Judge also found that there is no averment in the pleadings of the Appellants in relation to acquisition of any portion of the land in dispute, and therefore, the Appellants are deemed to have admitted the acquisition

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as pleaded by the 4th 8th Respondents.

Learned Counsel for the Appellant then submitted that, the conclusion of the learned trial Judge on locus standi is in error. That locus standi of a Plaintiff is determined from the totality of the averments in the Statement of Claim, and that it is the Statement of Claim alone that has to be scrutinized to ascertain whether or not the Plaintiff has disclosed his interest and how such interest has arisen in the subject matter of the action. The case of Josian Kayode Owodunni v. Regd Trustees of C.C. of C. & 3 Ors (2000) 10 NWLR (pt.675) 315 was cited in support and to submit that the learned trial Judge fell into grave error in making his finding on locus standi following his finding on the issue of government acquisition. It was then submitted that, the Appellants having pleaded their root of title and alleged that the Respondents trespassed upon their said land, it was sufficient to establish their standing to sue; and that the claim of the Respondents that the area they were alleged to have trespassed upon had been acquired was an issue to be proved at the trial with the Respondents under the

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burden to prove the acquisition. We were accordingly urged to hold that the dismissal of the Appellants? case against the 4th 8th Respondents on the basis of locus standi based upon purported acquisition by the Ogun State Government is perverse. The case of Clifford Nkemjika Osuji v. Ekeocha (2009) 16 NWLR (pt.1166) 81 at 117 was cited in support.

In response, learned senior counsel for the Respondents contended that, it is apparent that the 4th 8th Respondents raised the issue of the locus standi of the Appellants to litigate on the portions occupied by them due to the fact of acquisition of those portions of land. Furthermore, that the 1st Defendant now (1st 3rd Respondents) pleaded in paragraphs 9(a), (b) and (c) of their 6th Further Amended Statement of Claim, that part of the land being litigated upon had been acquired. That the Appellants filed an Amended Reply to the 6th Further Amended Statement of Defence but the averments relating to acquisition were not denied. That the 4th 8th Respondents also pleaded the facts of acquisition in paragraphs 18 and 26 of their Joint Statement of Defence and contended that

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the Appellants lack the locus standi to maintain any action on portions occupied by them (4th 8th Respondents). The cases of Honika SawMill (Nig.) Ltd v. Hoff (1994) 2 NWLR (pt.326) 252 at 270; Cardoso v. Daniel (1986) 2 NWLR (pt.20) 1 at 43; Elendu v. Ekwoaba (1998) 12 NWLR (pt.578) 320 at 331; Olowoofoyeku v. Olowoofoyeku (2011) 1 NWLR (pt.1227) 177 at 202 and Akudo v. Guinness Nig. Ltd (2012) 15 NWLR (pt.1322) 150 at 171 were then cited to submit that, in law, what is not denied is deemed admitted. It was then submitted that, the issue of locus standi arose from the pleadings of the parties and the learned trial Judge invited the parties to address him on it after the close of evidence.

Learned Counsel for the Respondent went on to submit that, it is a misconception to argue that issue of locus standi cannot be looked into outside the Statement of Claim. That, it is a different thing if the issue of locus standi is being raised in limine; in that case, the Court and the parties would be restricted to the Statement of Claim. The cases of Oyewole v. Akande (2009) 15 NWLR (pt.1163) 119 at 148 and E.S.U.S.T v. I.J.M.E. Ltd (2010) 11 NWLR (pt.1205)

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297 at 320 were cited in support. Furthermore, that there is no law that locus standi cannot be resolved after evidence, if the evidence or findings show lack of locus standi. The case of Jitte v. Okpulor (2016) 2 NWLR (pt.1497) 542 at 574 575 paragraphs G A was cited in support. The cases of Effiom v. C.R.O.S.I.E.C. (2010) 14 NWLR (pt.1213) 106 at 133 134; Owners of MVBACO Liner v. Adeniji (1993) 2 NWLR (pt.274) 202 and Stanbic I.B.T.C. Bank Plc v. L.G.C. Ltd (2018) NWLR (pt.1626) 96 at 142 were also cited to contend that locus standi affects the jurisdiction of the Court and can therefore be raised at any time, even for the first time in the Supreme Court.

To determine this issue, it will be necessary to understand what locus standi is all about. The phrase locus standi simply means the legal capacity a person has to institute proceedings in Court in respect of a particular matter. A person is therefore said to possess the locus standi to sue in a particular matter if he is able to show to the satisfaction of the Court that his civil rights have been or are in danger of being infringed upon. To satisfy the test of locus standi, the

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person must be able to disclose that there is a dispute between him and another, and that the dispute is justiciable. See Emezi v. Osuagwu & Ors (2005) 12 NWLR (pt.939) 340; Ojukwu v. Ojukwu (2008) 18 NWLR (pt.1119) 439 and Amaechi v. Governor of Rivers State & Ors (2017) LPELR 43065 (CA). Thus, in the case of Barbus & Co. (Nig.) Ltd & Anor v. Okafor-Udeji (2018) LPELR 4450 (SC), My Lord, Okoro, JSC said:

From the definition of locus standi, it is clear that for a person to have legal capacity to sue over a matter, he must show sufficient interest in the subject matter of litigation and that will give him access to institute proceedings in a Court of Law. As was the case in relation to ascertaining reasonable cause of action, the pleadings of the party seeking to sue must disclose a cause of action vested in the Plaintiff and the rights and obligations or interest of the Plaintiff which have been violated before he can be vested with locus standi to sue.

Generally, it is the Statement of Claim that will disclose whether or not the Plaintiff is not a meddlesome interloper but a person whose rights have

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been infringed upon and that the nature of the right is such that it is justiciable, i.e. that the Court can validly exercise judicial powers of hearing and determining on the matter. The Supreme Court, and by extension this Court has held in a legion of cases, that to determine whether a Plaintiff has locus standi, it is the Statement of Claim only that receive the attention of the Court. See Owodunni v. Regd Trustees of C.C. of C. (2000) 10 NWLR (pt.675) 315; Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) 423 and Prince Abdul Rasheed A. Adetono & Anor v. Zenith Bank International Plc (2011) LPELR 8237 (SC).

The issue of locus standi being one of jurisdiction can be raised at any stage of the proceedings by either party or by the Court itself. It therefore means that, it can be raised any stage of the proceedings in the trial Court before judgment; or on appeal before this Court, and even for the first time at the Supreme Court. Accordingly, where in the course of the proceedings or at the close of evidence any of the parties discovers that the Plaintiff had no locus standi to institute the action in the first place, or the Court sees so

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from the evidence adduced, the issue may be raised and determined one way or the other. This is because, locus standi is a condition precedent to the initiation of any process, which may have the effect of affecting the jurisdiction of the Court to hear and determine the case. Once there is absence of locus standi, the Court that hears the matter and the parties would have labored in vain. See Okafor v Ezenwa (1992) 4 NWLR (pt.237) 611 at 618; Pam v. Mohammed (2008) 16 NWLR (pt.1112) 1; and Klifco Ltd v. Philip Holzmann (1996) 3 NWLR (pt.436) 276.

In the instant case, the Appellants claims against the 4th, 5th, 6th and 8th Respondents was pleaded in paragraphs 7 and 46 of the 2nd Further Amended Statement of Claim and Plan that the 3rd 8th Respondents had trespassed on their land verged Red in the dispute Plan No. BO/DISP.01/2005/OG dated the 28/6/2005. They also pleaded by way of traditional history how they came to acquire title to the land in dispute. By so doing, they have sufficiently pleaded their legal interest to the land which they allege the Respondents had trespassed upon. Whether or not such claim will succeed at the end of the

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trial is another matter altogether.

It should be noted that the issue of locus standi was raised by the 4th 8th Respondents in paragraphs 26 of their Amended Statement of Defence at pages 51 57 of the Additional Record of Appeal transmitted on the 24/4/15 but deemed transmitted on the 6/5/15. After pleading how they acquired their various titles to the parcels of land they are alleged to have trespassed upon, they pleaded that the parcels of land in question had been acquired by the Federal Government who later de-acquired and transferred same to the Ogun State Government. That realizing that fact, they had entered into negotiation with the Ogun State Housing Corporation so as to normalize the ownership and/or possession of the land. They then pleaded at paragraph 26 of the said Amended Statement of Defence as follows:

26. The 2nd to the 7th Defendants will contend vide a preliminary objection that the Plaintiffs in this suit lacks the locus standi to institute this action as the disputed parcel of land has been acquired by the Ogun State Government.

The 2nd 7th Defendants (now 4th ? 8th

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Respondents) did not however raise the issue of locus standi by way of preliminary objection as pleaded. It was the learned trial Judge who raised suo motu the issue of locus standi. Truly, the 4th 8th Respondents, pleaded that they will raise the issue by way of a Preliminary Objection but they never did. By so doing, it would be validly presumed that they had waived or abandoned same. However, at page 207A 207B, the learned trial Judge is recorded as follows:

While writing the judgment, I saw the need for counsel in the case to give further address on the competence of the Plaintiffs claim in 133/00.

The learned trial Judge then ordered counsel to address him on, inter alia whether the Plaintiffs have locus standi to maintain the claim. After considering the addresses of counsel, the learned trial Judge found upon the facts and held that the Appellants did not join any issue with the 4th 8th Respondents on the fact of acquisition, and are therefore deemed to be aware of the acquisition. Referring specifically to the Appellants witness (DW4) the learned trial Judge held at page 226

26

line 24 227 line 12 of the Record of Appeal as follows:

The question that arises in the circumstances is the locus standi of the Plaintiffs to sue for damages for trespass and injunction on acquired land. By the provision of Section 28 of the Land Use Act, 1978, valid acquisition of land as in this case, extinguishes the original owners rights and interest in the acquired land. There is no doubt that enforceable right on acquired land is vested in the acquiring authority and in this case by the unchallenged evidence led, in the Ogun State Housing Corporation. The Plaintiffs herein have not shown any enforceable right that inures in them on the portion verged Purple in Exhibit AL for them to have locus standi to prosecute the claim against the 2nd 6th Defendants. For a litigant to have locus, he must show that the act of which he complains, affects rights and obligations peculiar or personal to him, he must show that his rights and obligations have been or are in danger of being infringed or injured. Trespass, it is trite, is a tort against right of possession. The Plaintiffs cannot be

27

said and indeed are not shown by evidence to be in possession of the acquired land. Therefore, not being in possession, I find and hold that the Plaintiffs have no locus standi to sue for damages for trespass and injunction on the various portions verged Green within the acquired land verged Purple in Exhibit AL. In the circumstances, the claim against the 2nd, 3rd, 4th and 6th Defendants fails for lack of locus standi and it is dismissed.

It is obvious that, the claims of the Appellants against the 4th 8th Respondents was dismissed on the basis that the parcels of land alleged trespassed upon, had been acquired. Apparently, the issue of acquisition of the land was introduced by the 4th 8th Respondents. It was introduced as their defence against the claims of the Appellant against them. It is my view that, once justiciable legal interest has been disclosed by the Statement of Claim, a defence raised by a Defendant should not operate to deny a Plaintiff of his right of being heard in Court. It should be noted that lack of locus standi operates to shut out a Plaintiff from being heard by the Court, as in that

28

instance he has nothing upon which the Court can exercise its constitutional duty to adjudicate upon. The moment a Plaintiff has disclosed his legal interest which is justiciable, he cannot be shut out on the basis of lack of locus standi.

It is not the law that once the pleadings of a Plaintiff have disclosed his locus standi, his claim must succeed. In the same token, a Defendant who has pleaded his defence, must lead credible evidence thereon. In the instant case therefore, I am of the view that the learned trial Judge erred when he held that the Appellants had no locus standi to sue the 4th 8th Respondents for damages in trespass. The 4th 8th Respondents who alleged acquisition, had the burden of proving same.

Now, on the issue of acquisition, learned senior counsel for the Appellant contended that, the Appellant joined issues with the 4th 8th Respondents on the issue. That the Appellants pleaded that they were aware of the purported acquisition and wrote the Ogun State Housing Corporation on the issue on the 22/5/2010 but there was no response. That the Appellants denied being compensated and claimed that although the

29

Federal Government acquired part of the land for military purposes but same was released in 1985; and also denied knowledge of transfer of that part of the land to the Ogun State Government. Learned Senior Counsel drew our attention to the fact that the 1st 3rd Respondents never denied sale of the land to the 4th 8th Respondents. It was then submitted that there was no evidence in the form of a Gazette or Instrument transferring any portion of the land to the Ogun State Government. That the Respondents who pleaded acquisition and who had the burden of proof of such acquisition did not adduce any scintilla of evidence to sustain their assertion.

Learned Senior Counsel further contended that, where the issue is whether land in dispute has been validly acquired, the relevant Government is a necessary party and ought to be joined in the suit by the person claiming such acquisition. The cases ofAlhaji Ali Na Baba-Iya v. Mustapha Mai Sikeli & 6 Ors. (2006) 3 NWLR (pt.968) 508 at 535 was cited in support and to further submit that, failure by the Respondents to join the Ogun State Government is therefore, fatal to their case as relates the

30

issue of acquisition. The case of Alahaji Isiaku Yakubu v. Impresit Bakolori Plc & Ors (2011) 6 NWLR (pt.1244) 564 at 583 was cited in submit. We were urged to hold that the dismissal of the Appellants? claims against the 4th ? 8th Respondents for lack of locus standi on the basis of acquisition has no substance and should be set aside.

In response, learned counsel for the Respondents contended that, the Appellants rightly observed that the issue of acquisition is a matter of evidence. That in view of the denial of the Appellants, the learned trial Judge reviewed the evidence and properly resolved the issue of acquisition, and rightly held that the parcels of land the Appellants claim against the 4th 8th Respondents had been acquired. Referring to the testimonies of PW2, PW7, DW5, DW9 and DW12, learned senior counsel submitted that the fact of acquisition was duly proved by the evidence on record. That the evidence in denial led through DW5 was contradictory. That while the DW5 (1st Appellant) denied acquisition but on another turn, stated that his family processed application for compensation for crops on the land. That,

31

interestingly, Exhibit AN which is the List of those paid compensation, the name of the said Appellant is on the said List. That the names of members of the Appellants family that collected compensation are on Exhibit AW as Nos. 507, 508, 511, 512 and 514 while those of the 1st 3rd Respondents Family are Nos. 708, 709, 710, 711, 712, 729, 769 and 794 of the said Exhibit AW.

Learned Senior Counsel for the Respondents went on to submit that, in any case, the issue of acquisition was reached by consent of the parties. That curiously, one Chief Adeyemi of Counsel who represented the Appellants in the Court below, had while arguing the issue stated that they have seen the area of acquisition in Exhibit AL. The cases of Kayode v. Odutola (2001) 1 NWLR (pt.725) 666 at 675; Adeogun v. Fashogbon (2011) 8 NWLR (pt.1250) 427 at 453; Njaba L.G.C. v. Chigozie (2010) 16 NWLR (pt.1218) 166 and Donald v. Saleh (2015) 2 NWLR (pt.1444) were cited in support. That, the argument of the Appellants that the acquisition was not Gazetted has been disproved by Exhibit AV

32

tendered through the DW9. Furthermore, that the issue of not joining the Ogun State Government was neither raised before the trial Court nor pronounced upon by the trial Court. The case ofHeritage Bank Ltd v. Bentworth Finance (Nig.) Ltd (2019) 9 NWLR (pt.1625) 420 at 436 was cited in support.

Still on the issue of acquisition, learned Senior Counsel submitted that, the validity of the acquisition was not in issue before the trial Court, as to require the joinder of the Ogun State Government. The cases of Idufueko v. Pfizer (2014) 12 NWLR (pt.1420) 96; Tella v. Usman (1997) 12 NWLR (pt.531) 171 at 173 and Ikem v. Ezianya (2002) 4 NWLR (pt.757) 245 at 262 were cited in support. We were accordingly urged to hold that the decision of the trial Court on the issue of acquisition is not perverse. The cases of Dakat v. Dashe (1997) 12 NWLR (pt. 531) 46; UBN v. Blue Construction (2002) 12 NWLR (pt.781) 424 at 436; Baker M.V. v. Chevron (Nig.) Ltd (2006) 13 NWLR (pt.997) 276 and Mini Lodge v. Ngei (2009) 7 NWLR (pt.1173) 254 at 287 were cited in support.

In reply on points of law, learned Counsel for the Appellant argued that, the fact of acquisition, as

33

relied upon by the Respondents is a matter of evidence which must be discharged by the Respondents. The case of Ezemba v. Ibeneme (2004) 14 NWLR (pt.894) 617 was cited in support. It was then contended that to discharge the burden, the Respondents led evidence through DW9 and DW12 and also tendered Exhibit AV a Federal Government Gazette dated 16/5/1973 but that there is no evidence that the procedure for the acquisition was duly followed. That, the Respondents merely raised the issue of acquisition in order to defeat the Appellants Claims but it failed as neither the Federal Military Government nor the Ogun State Government who are necessary parties was joined. It was then submitted that there was no personal service of notice of acquisition served on the Appellants, even though, the Appellants got to know of the acquisition through a signboard erected on the land.

Learned Counsel for the Appellants went on to submit that, the validity of acquisition is dependent on the procedure laid down in Sections 5 and 9 of the Public Land Acquisition Act, Cap.167, Laws of Nigeria and Ogun State. The cases of A.G; Bendel State & Ors v. Aideyan

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(1989) 4 NWLR (pt.118) 646 and Ibafon Company Ltd & Anor v. Nigerian Ports Plc (2000) 8 NWLR (pt.667) 86 at 101 were cited in support. It was then submitted that a sober and calm consideration of the arguments of the Respondents cannot sustain a defence of acquisition. Furthermore, the arguments of the Respondents that the parties had acquiesced to acquisition is not borne out from the record of Appeal. The case of Ogunyade v. Oshunkeye (2007) 15 NWLR (pt.1057) 218 was then cited to submit that the Respondents had the burden to prove the facts of acquisition and cannot rely on the weakness of the Appellant case.

Now, it is not in doubt that the fact of acquisition was pleaded by the 4th 8th Respondents in their paragraphs 14, 15, 19, 20, 21, 24, 25 and 26 of the Amended Statement of Defence filed on the 05/5/2010. The law is that, he who alleges or asserts must prove the existence of that which he has alleged or asserted. It therefore means that the 4th -8th Respondents who pleaded that the parcels of land against which the Appellants claim they (4th -8th Respondents) had trespassed upon had been acquired by the Federal

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Government and later transferred to the Ogun State Government had the burden to proof the acquisition. See Section 131(1) & (2) of the Evidence Act, 2011. See also, Union Bank v. Ravih Abdul & Co. Ltd (2018) LPELR 46333(SC); Olaleye v. Trustees of ECWA (2011) 2 NWLR (pt.1230) 1 and Adediji v. Kolade & Anor (2012) LPELR 14171 (CA). In Bulet Intl (Nig.) Ltd & Anor v. Olaniyi & Anor (2017) LPELR 42475 (SC), My Lord, Eko, JSC said:

Whoever desires a Court of law to give him judgment as to any legal right dependent on the existence of facts he asserts, has the burden or onus of proving that those facts exist. Failure to prove or establish positively asserted facts leads to assumption, admittedly, that those positively asserted facts do not in fact exist.

Having considered the pleadings and the evidence in respect of acquisition as pleaded by the 4th-8th Respondents, the learned trial Judge held at page 226 lines 2 8 of the record of appeal as follows:

I must admit that there is no averment in any of the pleadings of the Plaintiffs in 133/00 in relation to acquisition of

36

any portion of the land in dispute. However, not only did the Plaintiffs fail to join issue with the 2nd – 7th defendants who raised the allegation of acquisition in paragraphs 14, 18, 19, 20 and 21 of their Amended Statement of Defence, in which case they are deemed to have admitted the fact that the Plaintiffs were aware of the acquisition manifested in their evidence on oath.

Having referred to the testimonies of DW4 and DW5, the learned trial Judge went on to hold at page 226 lines 17 24 of the record of appeal as follows:

The later part of his evidence that they were not paid any money till date was proved to be false by exhibit AW in which the DW5s name variously appeared as one of those paid compensation. I cannot see a better admission against interest. It is now clear that the fact of acquisition was deliberately kept out of their pleadings because the Plaintiffs wanted to eat their cake and have it. In the circumstances, I find as a fact that the portion verged Purple in exhibit AL had been acquired by the Government and the parcels of land marked 2, 3, 4, 6 and 7 respectively, verged

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Green fall within the acquisition.

Having carefully perused the record of appeal, and particularly the pleadings and evidence led thereon, I am of the view that the findings of the trial Court cannot be faulted. Indeed, the Appellants did not file any Reply to the 2nd 7th Defendants (4th 8th Respondents) Amended Statement of Defence. It therefore means that the Appellants did not join issue with the 4th 8th Respondents on the pleadings on the issue of acquisition. The 4th 8th Respondents called DW9, DW10, DW11 and DW12 who gave clear evidence of the fact of the acquisition of the parcels of land the Appellants are suing the 4th- 8th Respondents for trespass thereon. The Gazette as evidence of the acquisition was tendered and admitted in evidence as Exhibit AV. Furthermore, the Appellants were undoubtedly aware of the acquisition and indeed actively participated by applying for and collecting compensation thereon as evidenced by Exhibit AW. The DW5 (Sule Faluyi), the original 1st Plaintiff (now deceased) testified extensively and was also extensively cross-examined stated

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under cross-examination at page 125 of the records as follows:

It is not true that the land occupied by the 2nd 7th defendants is subject of Government acquisition. It is not true that my family and Okeremi Akinwunmi family were informed of the acquisition by the Government.

The DW5 however admitted that his family (Appellants) processed application for compensation for crops on the land but have not been paid any money. However, Exhibit AW put a lie to the testimony of the DW5 that his family did not collect any compensation. In any case, the validity of the acquisition was not in issue at the trial as the parties did not join issue on same. The Appellant having not specifically denied the pleadings on acquisition are deemed to have admitted same, as the law concludes that a material fact which is pleaded should be specifically denied, otherwise it would deemed to be established. In such a circumstance, there would be no need to call evidence in proof of that pleaded fact. See Achilihu v. Anyatonwu (2013) 12 NWLR (pt.1368) 256; Pali v. Abdu & Ors (2019) LPELR 46342 (SC) and CBN v. Interstella Communications Ltd & Ors

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(2017) LPELR 43940 (SC). On that note, I am of the view that the parcels of land marked or numbered 2, 3, 4, 6 and 7 and verged Purple on Exhibit AL having been acquired by Government, the Appellants could not sue for trespass on same. In that respect, issue one (1) is hereby resolved against the Appellants.

On issue two (2), learned Senior Counsel for the Appellants contended that, the learned trial Judge found that the portion marked 5 and verged Green on the Appellants Survey Plan (Exhibit AL) fell outside the purported Government acquisition. That, while the learned trial Judge located the 2nd, 3rd, 4th and 6th Defendants (4th, 5th, 6th and 8th Respondents) as occupying the areas marked Green, all of which were held to fall within the purported Government acquisition, but acknowledged that the number given to the exact portions verged Green represent each of the Defendants/Respondents as sued. That, the learned trial Judge then concluded that, it follows that the portion marked 1 is for 1st Respondent while the portion marked 5 is for Segun Adeoye – 5th Defendant

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(now 7th Respondent). Learned Senior Counsel argued that, it cannot be so because, having located the 4th, 5th, 6th and 8th Respondents within the acquired land, it follows that the portion marked 5 cannot belong to the remaining the Respondent.

Learned Senior Counsel for the Appellant went on to submit that, despite the obvious inference open to the trial Court, the learned trial Judge ignored his findings and dismissed the claim against the 7th Respondent on the grounds of the testimony of the DW5. That, having found that the 4th Respondent was occupying the parcel of land marked 2 within the area acquired, the learned trial Judge erred deeply when he held that the identity of the land held by the 7th Respondent was not proved. It was then submitted that, civil cases are determined on a balance of probabilities and therefore, the learned trial Judge ought to have made his findings based on which side the balance of probabilities titled on the imaginary scale. That, at page 227 of the record of appeal, the learned trial Judge found that the portion marked as No.5 was possessed by the 7th Respondent. Furthermore, that DW5

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specifically identified the 4th Respondent (Ope-Odu) as the trespasser on the portion marked as No.5 or Exhibit AL. We were therefore urged to hold that the learned trial Judge erred in holding that the land occupied by the 7th Respondent has not been proved. The case ofAkingbehin Tinubu v. Khalil & Dibbo Transport Ltd. (2000) 11 NWLR (pt.677) 117 was cited in support.

Learned Senior Counsel for the Respondents contended that, contrary to the settled principle of law that he who asserts must prove, the Appellant failed to prove the person who allegedly trespassed on the portion marked as No.5 on Exhibit AL. Referring to Section 133 of the Evidence Act, 2011 and the cases of Dikwa v. Modu (1993) 3 NWLR (pt.280) 170; Okonkwo v. Okagbue (1994) 9 NWLR (pt.368) 301 and Eboh v. Ogbu (1994) 5 NWLR (pt.347) 703, learned Senior Counsel contended that, Exhibit AL tendered by the Appellants shows that the portion verged Green and numbered were occupied by the 4th 8th Respondents. That the portions verged Yellow in the said Exh. AL fell within the area acquired, and outside the area marked Green,

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only two portion marked as Nos. 1 and 5 appear outside the one verged Purple in Exhibit AL. That the Appellants, case was that, the portions marked 1 5 were occupied by the 2nd 7th Defendants (4th 8th Respondents) but that DW5 gave contrary evidence as he failed to link the two portions outside the acquisition to the 1st and 5th Defendants (now 1st and 7th Respondents). That ironically, the Appellants did not adduced any iota of evidence that linked the portion marked as No.5 on Exhibit AL to the 7th Respondent (Segun Adeoye). That the Appellant merely argues that the trial Court should have presumed that the portion marked No.5 was occupied by the 7th Respondent.

Learned Counsel for the Respondent went on to argue that, the Appellants merely distorted the record because the learned trial Judge did not make any finding that Segun Adeoye is No.5 or that 1st Respondent is on portion marked as No.1. That, the fact of who is on which portion of the land is a matter to be proved by evidence but that such evidence was not forth coming. Referring to the findings of the learned trial Judge at page 227 of the

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Record of Appeal, learned counsel submitted that, the DW5 gave evidence which failed to link Segun Adeoye (7th Respondent) to the portion marked as No.5 or any other portion of the land allegedly trespassed upon. See Edokpolo & Co. Ltd v. Ohenhen (1994) 7 NWLR (pt.358) 519 at 536. Furthermore, that the inference learned Senior Counsel argued could have been made by the trial Court is not backed by evidence and therefore speculative. The case of Ezeadukwa v. Maduka (1997) 8 NWLR (pt.518) 635 at 663 was then cited to submit that inferences are not drawn in vacuum, especially when the pleadings of the Appellants and evidence are completely silent on Segun Adeoye as regards the claim against him for trespass. We were urged to hold that the findings of the trial Court that the portion marked as No.5 on Exhibit AL was not linked to any of the Respondents is unassailable; and therefore the allegation of trespass against the 7th Respondent is unmeritorious.

Replying on points of law, learned Senior counsel for the Appellant argued that if the finding of the trial Court upon consideration of Exhibit AL is that the number given to

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each portion verged Green represents the Respondents as trespassers as sued, it follows that portion 1 is for the 1st Respondent and portion 5 is for Segun Adeoye sued as the 5th Respondent. That, it would be incongruous to hold that portion 5 would not be linked to the 5th Defendant (now 7th Respondent) in view of the testimony of DW5. The cases of Odibendi v. Okoli & Anor (2010)13 NWLR (pt.1210) 45 at 60 and Osuji & Anor v. Ogualaji (2002) 16 NWLR (pt.792) 136 were cited in support, and to hold that Exhibit AL was tendered and admitted without objection; and therefore, if the Respondents wanted to make an issue out of the plan tendered by the Appellants, he should clearly and specifically say so in his pleadings. The cases of Mini Lodge Ltd v. Ngei (pt.1173) 254; Woluchem v. Gudi (1981) 5 S.C. 291 and Akintola v. Balogun (2000) 1 NWLR (pt.642) 532 were cited in support and to urge us to set aside the finding of the trial Court.

It is the settled law that it is the duty of the trial Court to evaluate and ascribe evidential value or weight to both oral and documentary evidence admitted by it. Where the trial Court has dutifully and

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correctly evaluated the evidence and correctly assigned due weight to them before arriving at its decision, the Appeal Court will not interfere. However, where the trial Court shirked its duty of evaluating such admitted evidence; the Appellate Court is well placed to do what the trial Court failed to do. See Bello v. FRN (2018) LPELR 44465 (SC); Olaosun v. Ogunsina (2018) LPELR 45031 (CA) and Abidoye & Ors v. Alawode & Ors (2001) 6 NWLR (pt.709) 463.

The findings of the Court below is at page 227 of the record of appeal. Therein, the learned trial Judge held as follows:

As shown on exhibit AL, two of the portions verged Green (i.e No.1 and No. 5) fell outside the acquired land. If it is taken as submitted by Chief Adeyemi, that the number given to each portion verged Green represents the Defendants as sued, it follows that portion 1 is for first defendant, the late Zaccheus Oderinde while portion 5 is for Segun Adeoye. However, the DW5 gave a different account when he said under cross-examination that:

The lands of the 2nd 7th defendants are in the same area. The land of Ope-Odu is in Ijako

46

Village. The land of Prince Solomon Adewale Gbadebo 3rd defendant is at the entrance of the town The land of Ayo Fapohunda is not within Government acquisition. The 7th defendants land is about a mile to Ijako.

The learned trial Judge then went on to hold at page 227 lines 24 35 of the record of appeal as follows:

If the above pieces of evidence is considered along with exhibit AL, both are obviously at cross-purpose. By the DW5 evidence, five of the defendants have their properties outside the acquired area while exhibit AL shows only two. It is obvious the DW5 was trying to be clever by half. What is however important is that there is no convincing identification of which of the defendants occupies the Green portion No.5. While exhibit AL by its numbering shows it is Segun Adeoye, the DW5 said it is Ope-Odu; the 2nd defendant. The consequence of the contradiction in the evidence is that the Plaintiffs could not link the Green portion No.5 with any of the defendant on record. The question is who trespassed on the Green portion?. It is trite the burden of proof

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is on the plaintiffs to show the identity of the land on which a party is sued or his claim relates failing which the claim must fail. Having failed to link the Green portion No.5 with Segun Adeoye, the claim against him must fail.

The crucial issue here is whether, the Appellants were able to link the 5th Defendant; Mr. Segun Adeoye (now 7th Respondent) to any of the portions of the land verged Green on Exhibit AL which are areas allegedly trespassed upon by the 4th – 8th Respondents. With the tendering of Exhibit AL no difficulty should arise in resolving the issue, but the learned trial Judge was of the view that the testimony of the original 1st Defendant (now deceased) as DW5, the 5th Defendant (now 7th Respondent) was not linked to any of the parcels of land allegedly trespassed upon.

It should be noted that Exhibit ?AL? was tendered by the Appellants. By Section 128(1) of the Evidence Act, 2011, oral evidence is not allowed to contradict, alter, add to or vary any documentary evidence. In other words, a document tendered in Court is the best evidence in proof of the contents thereof, and no

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oral evidence will be allowed to either discredit or contradict the contents thereof except where fraud has been alleged in the pleadings. See Olanlege v. Afro Continental (Nig.) Ltd (1996) 7 NWLR (pt.458) 40; Emeje v. Positive (2010) 1 NWLR (pt.1174) 48 at 69 and Tafida & Anor v. Garba (2013) LPELR 22076 (CA). However, where a party has led both oral and documentary evidence on an issue, but it is found that the oral evidence contradicts the documentary evidence, tendered, the evidence on the fact in issue cannot be said to be credible. As my learned brother, Abiru, JCA observed in Odum v. Chibueze (2015) LPELR 40895 (CA):

It is elementary law that where oral evidence and documentary evidence tendered by a party in proof of a fact say different things, the party cannot be said to have led credible and cogent evidence in proof of that fact.

In the instant case, the Appellants led both oral and documentary evidence in respect of the land allegedly trespassed upon by the 2nd 7th Defendants (4th 8th Respondents). I have carefully studied Exhibit AL. The area verged Purple is the area

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acquired by the Government. The portions numbered 2, 3, 4, 6, and 7 fall within the area acquired by the Government. The learned trial Judge linked those portions to the 2nd, 3rd, 4th, and 6th Defendants while the claim against the 7th Respondent was withdrawn by the Appellants. It should be noted however, that the portions numbered 1 and 5 fall outside the area acquired by the Government. Having calmly reflected on the portion of the testimony of the DW5 cited and relied on by the trial Court, I do not find any contradiction in the testimony of the DW5 with Exhibit AL. That portion of the testimony of DW5 merely conveyed to the trial Court that the portions numbered 1 and 5 on Exhibit AL fell outside the area acquired by the Government.

It should be remembered that the claim against the Respondents was for trespass to those portions of land sold to the 4th 8th Respondents by the 1st 3rd Respondents. It was the 4th 8th Respondents who raised the issue that the portions of land sold to them by the 1st 3rd Respondents had been acquired by the Federal Government. The burden was therefore on the

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Respondents to prove the acquisition. Thus, the learned trail Judge having found that the portions of land occupied by the 2nd, 3rd, 4th and 6th Respondents fell within the area so acquired, it would logically follow that occupiers of portions 1 and 5 could not take the benefit of the defence of acquisition. From the records, the 2nd, 3rd, 4th and 6th Defendants are the 4th, 5th, 6th and 8th, Respondents in this appeal. The 1st and 5th Defendants are the 1st 3rd and 7th Respondents in this appeal. A quick interpretation of Exhibit AL clearly show that the portion held by the 1st 3rd and 5th Respondents fell outside the area acquired by the Federal Government. The conclusion of the learned trial Judge would therefore be that the portion sold to the 5th Respondent did not fall within the area so acquired and therefore his claim of acquisition was not proved. The logical effect is that, the Appellants could validly proceed with their claim against them. Whether or not the Appellants would succeed would depend on the outcome of the Appellants claims against the 1st 3rd Respondents. This issue, issue two, is therefore

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resolved in favour of the Appellants.

Now, the learned Senior Counsel for the Appellants argued issues, 3, 4, 5, 6, 7, 8 and 9 together. I shall therefore consider the issues in the sequence followed by learned Senior Counsel.

Learned Senior Counsel then contended that the learned trial Judge suo motu formulated an issue of whether this suit is caught by the principles of res judicata and proceeded to observe that counsel in their addresses had agreed not to pursue the issue. That surprisingly, the learned trial Judge summersaulted by considering the effects of the judgments and held that res judicata does not avail the parties in view of the judgments in suit Nos. 23/CV/75 and AB/13A/84 (exhibits J and A). Learned counsel (Silk) then contended that, in the first place, the Appellants did not plead res judicata specifically, or that title had been decreed to them. That, the issue of res judicata had been settled by the Supreme Court in SC/144/99 (Exhibit R) to the effect that Exhibits J and A could not support a plea of res judicata. It was then submitted that the Supreme Court

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decision in SC/144/99 has no relevance or merit to the Appellants case as the Appellants did not plead res judicata and therefore, the heavy weather made of the judgment in SC/144/1999 is uncalled for.

Learned Counsel (Silk) for the Appellants went on to submit that, the pleadings and evidence of the Appellants reveal that Exhibit J and A are relied on not as res judicata but as evidence to aid the Court in determining on which side the preponderance of evidence tilts and not as evidence to prove that title had been decreed in favour of the Appellants. Paragraphs 4, 5 and 6 of the Appellants Further Amended Statement of Claim was reproduced to contend that in the Customary Court Judgment (exhibit J), the predecessors of the 1st 3rd Respondents had claimed for declaration of title against the Appellants but failed. That the said decision was affirmed on appeal to the High Court in AB/63/76 (Exhibit A). That, though the judgment in Exhibit J appear to have been narrowed to the area occupied by one Mr. Olusegun Osundairo, the Court made findings on the whole of Ijako

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land and confirmed the presence of the Appellants in Ijako land. That at pages 45 48 of Exhibit J, the trial Customary Court made far reaching findings of facts on the position of the Appellants vis–vis the 1st 3rd Respondents and their status on Ijako land. That by Exhibit A, the High Court affirmed the decision of the Customary Court, and which decision has not been over turned on appeal.

Learned Counsel (Silk) for the Appellants went on to submit that, it is clear from Exhibit J that, the Customary Court, upon inspection of the land made specific findings against the Respondents on the matter of ownership of the land in dispute in favour of the Appellants. Furthermore, that after debunking the claims of the 1st ? 3rd Respondents, the customary Court listed several acts of possession and/or ownership of the land in dispute, done by the Appellants. The cases of Egba & Ors v. Appah & Ors (2005) 10 NWLR (pt.934) 464) and Ezewani & Anor v. Onwordi & 3 Ors (1986) 4 NWLR (pt.33) 27 were then cited to submit that, Exhibits J and A are of great

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avail to the Appellants, not as res-judicata but as evidence to be considered in determining the claims of the parties to ownership of the land in dispute. In other words, that they raise issue estopped against the 1st ? 3rd Respondents. The cases of Igwego & Ors v. Ezeugo & Anor (1992) 6 NWLR (pt.249) 561 at 587; Ukaegbu & Ors v. Ugoji (1991) 6 NWLR (pt.196) 127; and Sections 59, 169, 173 and 174 of the Evidence Act, 2011 were cited in support.

On this issue, learned counsel (silk) for the Respondents began by contending that there is nowhere counsel for the parties agreed not to pursue the issue of res judicata or issue estoppel in this suit as relates to Exhibits J and A. Learned counsel narrated the sequence of events regarding Exhibits J and A as averred in paragraphs 4 and 5 of the Further Amended Statement of Claim and Plan, and the reaction of the 1st ? 3rd Respondents in paragraphs 5 and 17 of their 6th Further Amended Statement of Defence. That, the 1st 3rd Respondents had averred that Exhibit J affected only 3 acres and the High Court ordered

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retrial but the case was discontinued. That, in any case, Chief Adeyemi of learned Counsel who represented the Appellants in the trial Court had urged the Court to hold that this Suit No: HCT/133/2000 as constituted is not caught by res judicata or issue estoppel. It was then submitted that, the contention that the parties did not agree not to pursue issue of res judicata or issue estoppel is misleading.

Learned Senior Counsel for the Respondent then cited the cases of Fadiora v. Gbadebo (1978) All NLR (reprint) 42 at 54 and HR. Sanyaolu v. Mrs Shola Coker & Anor (1983) S.C. 124 at 131 to submit that the appeal of Odutola in respect of res judicata in Exhibits J and A went to the Supreme Court but same was dismissed vide Exhibit F wherein the Supreme Court held that there was no definite finding on traditional history in suit No: 23/CV/75 (exhibits J and A). That, in the circumstances, the Appellants have no basis to rely on Exhibits J and A. That, in any case, since the effect of Exhibits J and A was not contested as

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the parties agreed not to pursue the issue by urging the trial Court to make its own findings afresh, the appeal on that ground is a mere exercise in futility. The cases of Tella v. Usman (1997) 12 NWLR (pt.531) 168 at 173; Ikem v. Ezianya (2002) 4 NWLR (pt.757) 245; University of Calabar v. Inyang (1993) 5 NWLR (pt.291) 100 and UBN v. Ikwen (2000) 3 NWLR (pt.648) 223 were cited in support. The case of Ajide v. Kelani (1985) 3 NWLR (pt.12) 248 was also cited to further argue that, the Appellants tried to approbate and reprobate at the same time when they initially argued that they did not plead res judicata or issue estoppel but summersaulted to argue that Exhibits A and J can be basis of issue estoppel.

It was further contended by learned counsel for the Respondents that, in their attempt to predicate their case on moribund judgment of the Customary Court, the Appellants moved forward and backward by changing strategy by contending that they did not rely on exhibits J and A as res judicata but as issue estoppel. That, ironically, the Appellants could not point to a single paragraph in their pleadings

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wherein issue estoppel was pleaded or led in evidence. The cases of George v. Dominion Flour Mills Ltd (1963) All NLR (reprint) 70 and Oladipo v. Moba L.G. (2010) 5 NWLR (pt.1186) 117 were cited in support; and to further submit that in any case, the judgment in Exhibits J and A had been declared null and void and a retrial ordered. Furthermore, that the Court cannot predicate its judgment upon evidence adduced in a previous proceeding which is only relevant for cross-examining a witness as to credit. Section 46 of the Evidence Act, 2011 was cited in support. We were accordingly urged to hold that the massive quotation from Exhibits J and A is an exercise in futility.

In reply, learned counsel for the Appellant submitted that, Exhibits J and A had gone beyond the test of admissibility having been admitted in evidence and acted upon by the trial Court. That Exhibits J and A are final judgments and conclusive of the issues decided therein. That they are not evidence in previous proceedings but tendered as conclusive proof of facts actually decided

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therein as stipulated by Section 173 of the Evidence Act, 2011. The cases of Adedayo v. Babalola (1995) 7 NWLR (pt.408) 383 and Tinubu v. Khalil & Dibbo Transport Ltd (2000) 11 NWLR (pt.677) 171 were then cited to urged us to hold that the Respondents are caught by issue estoppel.

The issue here is whether Exhibits J and A constitute estoppel per res judicata, or issue estoppel. The relevance of this issue lies in the fact that, when issue estoppel is raised in a judicial proceeding it operates to bar a party from re-litigating an issue that had been conclusively decided in a previous suit. In other words, issues which had been raised in a previous proceeding by the same parties or their privies on the same subject matter, and conclusively settled by a Court of competent jurisdiction cannot again be raised in a subsequent proceeding. See Chief Agbaka v. Chief Jeremiah Amadi (1998) 7 SCNJ 367; Adedayo v. Babalola (1995) 7 NWLR (pt.408) 383 and Akujobi v. Ekenan (1999) 1 NWLR (pt.585) 96. Issue estoppel is governed by Section 174 of the Evidence Act, 2011 and generally arises incidentally in a judicial proceeding between the

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same parties or their privies.

Estoppel per rem judicatam on the other hand arises where an issue of fact had been judicially determined to finality by a Court of competent jurisdiction between the same parties or their privies, and the same issue of fact comes directly in question in a subsequent proceeding between the parties or their privies. In such instance, the parties are estopped from instituting fresh action before any Court on the same facts and on the same issues already decided by the Court in the previous suit. Estoppel per rem judicatam is governed by Section 173 of the Evidence Act, 2011. See Adigun v. A.G. Osun State & Ors (1995) 3 NWLR (pt.385) 513; Umeh v. Iwu (2008) 8 NWLR (pt.1089) 225 and Ezewani v. Onwordi (1986) 4 NWLR (pt.33) 27.

It is the law that res judicata or the facts in support thereof must be pleaded. In other words, a party who seeks to rely on res judicata has the burden to plead and establish it to the satisfaction of the Court. See Adebo v. Omisola (2005) 2 NWLR (pt.909) 149; Akayepe & Anor v. Akayepe (2009) LPELR 326 (SC) and Ohiaeri & Anor v. Akabeze & Ors (1992) LPELR 2360 (SC).

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It should however be noted that res judicata is generally pleaded as instrument of defence rather than of offence. It is pleaded as a shield rather than a sword. See Yoye v. Lawani Olubode & 2 Ors (1974) 10 S.C. 209; Osunrinde & Ors v. Ajamogun & Ors (1992) 6 NWLR (pt.246) 156 and Ikotun v. Oyekanmi & Anor (2008) 10 NWLR (pt.1094) 100. Since a successful plea of res judicata has the effect of ousting the jurisdiction of the Court to hear and determine the action in which it was raised, it is inconceivable that a plaintiff will raise such a plea that will oust the jurisdiction of the Court to entertain the action he has brought before it.

In the instant case, the Appellant as Plaintiffs in Suit No: HCT/133/2000 pleaded the judgments in Suit Nos: 23/CV/75 and AB/13A/84 (Exhibits, J and A) in paragraphs 4, 5 and 6 of the 2nd Further Amended Statement of Defence. Therein, the Appellants pleaded as follows:

4. In 1975, the 1st Defendants family fought and action in Suit NO: 23/CV/75 against the Faluyi family claiming declaration of title in respect of the land shown and edged Red on Plan No:

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OG/790/76, a copy of which is hereby pleaded. The Plaintiffs hereby plead the proceedings and judgment in the said suit.

5. The judgment in the Suit went in favour of Faluyi family. The Court found as a fact that the land marked Red on the Plan belong to Faluyi family. The judgment was confirmed by the High Court on Appeal in Suit No: AB/13A/84. Plaintiff shall rely on the said judgments of the customary Court and High Court on Appeal, at the trial.

6. The plaintiffs aver that the customary Court held that the 1st Defendant was not a descendant of the original owner (Ijako) of the land in dispute, but that Plaintiffs were. The Court held that the Faluyi family is the owner of the land in dispute.

In view of the response of the 1st 3rd Respondents in paragraphs 9, 9A, 10, 11, 12, 13 and 14 of their 6th Further Amended Statement of Defence and Plan, the learned trial Judge invited Counsel to address him on the issue of res judicata or issue estoppel. Counsel duly addressed on it. At page 223 lines 24 25 of the record of appeal, the learned trial Judge held as follows:

In their respective further addresses

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however, all counsel agreed not to pursue the issue. So be it.

The above finding of the trial Court is not borne out of the record, as the parties duly filed Further Written Addresses on the issue of res judicata or issue estoppel. Perhaps the learned trial Judge later realized that fact, when he addressed the effects of Exhibits J and A at pages 228 229 of the record of appeal. Therein the learned trial Judge considered the effects of the judgment in Suit Nos: 23/CV/75 (Exh. J) and AB/13A/84 (Exh. A) on the instant case, and proceeded to hold as follows:

Suit No: 23/CV/75 between Chief Zacchaeus Oderinde, Baale of Ijako (for himself and on behalf of entire community of Ijako) and Olusegun Osundairo & Ors is Exhibit J in these proceedings while Suit NO:AB/13A/84, the judgment on appeal to the High Court in exhibit A. I have carefully read both exhibits and it suffices to say that there is nowhere title in respect of the land subject matter of the action was decreed in favour of the plaintiffs herein. Though the plaintiffs claim was

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dismissed, the defendants in the case (plaintiffs herein) did not set up counter claim. The law is settled that the dismissal of a plaintiffs claim is not tantamount to judgment in favour of the defendant who did not counter-claim It follows therefore and I so hold that the judgments in 23/CV/75 and AB/13A/84 Exhibits J and A cannot avail the plaintiffs.

I am of the view that the pronouncement of the learned trial Judge above, is correct in law. However, the Appellants have argued here that, he pleaded the two judgments, not as res judicata but as issue estoppel. In other words, that they did not plead exhibits J and A as evidence that title was decreed to them, and that, the Supreme Court had already settled the issue of res judicata in SC/144/1999 (Exhibit R) wherein the Supreme Court held that Exhibits J and A cannot support a plea of res judicata. A careful perusal of paragraphs 4, 5 and 6 of the 2nd Further Amended Statement of Claim support the position of the Appellants. To arrive at a reasonable decision, it would be

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necessary to consider what issue estoppel is all about.

Now, issue estoppel is recognized by Section 174 of the Evidence Act, 2011. The application of issue estoppel is based on the principles of law that, a party is not allowed to contend the contrary of any specific point which had been distinctly put in issue and determined with certainty against him. For issue estoppel to apply, the following conditions must be satisfied:

(a) the parties in the previous and the current proceedings are the same;

(b) the issues are the same;

(c) the issues are material to the cause of action in the previous and in the latter suit; and

(d) the issue must have been resolved in the previous case.

See the cases of Bwacha v. Ikenya & Ors (2011) 3 NWLR (pt.1235) 610; Ebba & Ors v. Ogodo & Ors (2000) 10 NWLR (pt.675) 387; Oyerogba & Anor v. Olaopa (1998) 13 NWLR (pt.583) 509 and Oshoboja v. Amida & Ors (2009) 18 NWLR (pt.1172) 188. Obviously, it would be the duty of the party who relies on issue estoppel to plead and lead evidence of that fact. In other words, the specie of estoppel relied on must be pleaded and proved.

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See Okonkwo & Ors v. Kpajie & Ors (1992) 2 NWLR (pt.226) 633; and Lawal v. Union Bank of Nigeria Plc (1995) 2 NWLR (pt.378) 407. A careful perusal of the pleadings reveal to me that the facts relating to issue estoppel are as pleaded in paragraph 6 of the 2nd Further Amended Statement of Claim and Plans. Therein, it was contended that, the customary Court held in 23/CV/75 that the 1st 3rd Respondents are not descendants of Ijako the founder of the land in dispute; but the Appellants are. I will revisit this issue later in the course of this judgment. It suffices here to state that estoppel per rem judicata was not pleaded and does not avail the Appellants.

Now, I shall consider the issue of identity of the land in dispute. Here, learned senior counsel for the Appellants referred to the findings of the trial Court at page 229 of the Record of Appeal, to submit that, the pleadings show that the Appellants and the 1st 3rd Respondents are disputing title, and the fact that the 1st Respondents father was granted a portion marked Blue in Exhibit AL by the Appellants is a relevant evidence for the purpose of

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determining the ownership of that portion and the entire land being litigated upon. That, if the 1st 3rd Respondents own the large expanse of land litigated upon, their predecessors and themselves cannot be tenants on the portion marked Green with the vast land being in dispute. The case of Idundun v. Okumagba (1976) 6 ? 10 S.C. 140 (reprint) was then cited to further submit that, a litigant seeking title may prove title by showing, inter alia, that he exercised various acts of ownership on the land in dispute; and that it includes showing that the Respondents and others have been customary tenants in identified portions of the land.

Learned Counsel for the Appellants went on to submit that, the learned trial Judge erred when he held that the Appellants did not plead the description of the land nor the extent and boundaries of the land which they claim. That, in view of the issue of boundaries, the traditional history given by the Appellants collapsed. It was then contended that, the boundaries of the land claimed by the Appellants were clearly pleaded and proved. That in any case, the parties did not dispute the boundaries of

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the land being litigated upon. That two plans, Exhibits AK and AL were tendered and admitted in evidence without objection and that the Respondents did not dispute in their pleadings, the boundaries of land claimed.

It was further contended that the land claimed by the Appellants is larger than the land being claimed by the 1st 3rd Respondents for Ijako Community. That the land being claimed by the Appellants is verged Black on the Composite Plan and that the 1st ? 3rd Respondents had no right to pass interest to the 2nd 7th Defendants in the portions of the area verged Red on the Plan (Exhibit P); and which areas are clearly marked in the Composite Plan Exhibit L. Referring to the findings of the learned trial Judge at page 232 of the Record of Appeal, learned counsel for the Appellant contended that the land in dispute was not in doubt and the parties knew exactly what was being claimed by the Appellants. The cases of Odibendi v. Okolie & Anor (2010) 13 NWLR (pt.1210) 45 at 60 and Osuji & Anor v. Ogualaji (2002) 16 NWLR (pt.792) 136 at 152 paragraphs A B were

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cited in support; and to further submit that, where a Survey Plan is tendered and admitted without objection, the other party is presumed to have admitted the identity of the land as delineated on the plan. We were accordingly urged to hold that the identity of the land was therefore not an issue.

In response, learned senior counsel for the Respondents contended that, the trial Court did not dismiss the Appellants claims on the ground that one of the Appellants ancestors granted a small portion of land in Exhibit AL to the 1st Defendant (1st 3rd Respondents). That in fact there was no finding as to grant as the 1st 3rd Respondents denied the grant and the Court did not disbelieve him. In other words, that the trial Court did not make any finding that Appellants granted land to the 1st Respondent, but that the Court merely opined that, if going by the Appellants pleadings, the 1st Respondent was a grantee of the Appellants, the relief of the Appellants ought to be for an order for forfeiture.

Let me quickly point out here that, I have read the portion of the judgment of the trial Court referred to by the

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Appellants. At page 229 of the Record of Appeal, and particularly lines 2 7 thereof, the learned trial Judge referred to paragraphs 7(k) and 7(j) of the Appellants 1st Further Amended Reply to the 1st 3rd Respondents 6th Further Amended Statement of Defence, to observe that, if the Appellants aver grant by Falolu, one of the Appellants ancestors to the 1st 3rd Respondents family, then a claim for declaration of title would not be appropriate. That, in the circumstances, a claim for forfeiture would be most appropriate. Based on that legal principle, the learned trial Judge proceeded to hold in lines 11 19 of the Record of Appeal as follows:

It follows therefore that, the right and interest of a customary grantee is only determinable not by declaration of title but by an action for forfeiture; neither can a tenant be liable for damages in trespass on the land he was granted. There is no proven act of misconduct or a claim for forfeiture against the 1st Defendant. In the circumstances, I answer question posed in the negative and hold that the claims against the 1st Defendant are

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not available to the Plaintiffs and such must fail. The outcome of the issue raised by the Court is that claims (i) (ix) of the Plaintiffs in 133/00 failed and are dismissed.

I have carefully read the entire judgment of the trial Court. Specifically at page 223 of the Record of Appeal, the learned trial Judge considered the issue; whether the claim of the Plaintiffs in 133/00 against the Defendants is sustainable. That question was reiterated at page 224 of the records, where the learned trial Judge particularized that issue and posed the question under item (c) as follows:

“(c). Whether the declaratory claim against the 1st Defendant is maintainable.

Now, the declaratory claims of the Appellants are as stated in paragraph 45 of the 2nd Further Amended Statement of Claim and Plan (page 14 of the Additional Record of Appeal). The Appellants also linked the 1st 3rd Respondents to all the claims of trespass against the 4th 8th Respondents. Thus, it was in response to the traditional history of the 1st 3rd Respondents ownership of the land in dispute, that the Appellants pleaded

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in response in paragraphs 7(a) 7(o) of the said 1st Further Amended Reply to the 6th Further Amended Statement of Defence and Plan of the 1st 3rd Respondents that the Appellant pleaded in paragraphs 7(i) and (k), that Falolu granted a portion of land to Oderinde, one of the ancestors of the 1st 3rd Respondents for farming purposes. It is my view that the pleadings in paragraphs 7(j) and (k) of the 1st Further Amended Reply did not in anyway aver customary tenancy between Falolu, one of the ancestors of the Appellants and Oderinde, one of the ancestors of the 1st 3rd Respondents. In any case, such grant was denied by the 1st 3rd Respondents by paragraphs 7(j) and (k) of the Further Further Amended Reply of the 1st Defendants (1st 3rd Respondents) to the Appellants 1st Further Reply to the 6th Further Amended Statement of Defence and Plan, that Falolu did not grant any land at Ijako to Oderinde.

It should also be noted that the pleadings in paragraphs 7(j) and (k) of the 1st Further Amended Reply did not aver that the entire land in dispute was granted by Falolu to Oderinde. If

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anything, it merely averred grant of a small portion to the said Oderinde by Falolu. It was therefore erroneous for the learned trial Judge to infer customary tenancy by Oderinde on the entire land claimed by the Appellants. The learned trial Judge equally erred in dismissing the Appellants claims (i) (ix) on the ground that, the Appellants pleaded tenancy by Oderinde and therefore could only sue the 1st 3rd Respondents for forfeiture due to act of misconduct. However, the learned trial Judge proceeded, though in the alternative, to decide on the claims for declaration of title. Thus, having held that the learned trial Judge erred dismissing the Appellants claims in the manner stated above, I find it incumbent to proceed to resolve the issue of declaration of title.

It is the law that in an action for declaration of title to land, the first duty of a Claimant is to establish the identity of the land in dispute. The arguments of the Appellants on the identity of the land in dispute had been summarized in the course of this judgment. It remains to state that, learned counsel for the Respondents argued that, there was a conflict

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between the Plan tendered and the size of the land claimed in the pleading. That the land pleaded is more than 500 acres. That, there are no averments in the Appellants pleadings as to the identity of the land but the Appellants only relied on Exhibits AL. Furthermore, that apart from the fact that there is no pleading on the identity of the land claimed by the Appellants, the Appellants still had to lead evidence on those pleadings otherwise such pleading would be deemed abandoned. The cases of Iniama v. Akpabio (2008) 17 NWLR (pt.1116) 225; Ogunjemila v. Ajibade (2010) 11 NWLR (pt.1206) 559 and Agbaje v. Ibru Seafoods (1972) 5 S.C. 50 were cited in support. It was then submitted that the only reference to any land is in paragraphs 10 and 11 of the Further Amended Statement of Claim; but that nothing in those paragraphs gives the boundaries or identity of the land.

Learned Counsel for the Respondents went on to submit that, the Appellants complicated the question of identity of the land by their averment in paragraph 2 of their 1st Further Amended Reply to the 6th Further Amended Statement of Defence. That incidentally, the parties

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new_anno are agreed that, the judgment in Suit Nos: 23/CV/75 and AB/13A/84 covered only 3 acres and therefore, a parcel of land covering 7.770 acres as per Exhibit AL cannot be said to form part of only 3 acres. Furthermore, that DW5 who was the 1st Defendant (now deceased), gave conflicting evidence regarding the identity of the land; and that such contradiction has cast doubt on the identity of the land claimed by the Appellants. The case of Ayanwale v. Odusami (2010 2013) 6 SCNJ 413 at 418 was cited in support.

It was further contended by learned senior counsel for the Appellant that, the notes on the Appellants Plan (Exhibit AL) indicate the Faluyi family land to be verged Red but the Appellants pleaded in paragraph 46 of 2nd Further Amended Statement of Claim and Plans, that the portion of land is verged Black on composite Plan Exhibit AQ. That the Composite Plan show the exact portion claimed by the 1st 3rd Respondents in their Plans (Exhibits N and P) which therefore justifies the findings of the trial Court in pages 232 234 of the Record of Appeal. The case

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ofZubairu v. Joseph (2016) All FWLR (pt.853) 1725 1726 paragraphs G C was then cited to submit that, contrary to the argument of the Appellants that once a Survey Plan is tendered and admitted without objection, the identity of the land is deemed admitted, it is the trite law that evidential description of the land in dispute must tally with the dispute Plan. The cases of Dakur v. Dapal (1998) 10 NWLR (pt.571) 573; Adedoyin v. Amoo (2018) LPELR 44978 (CA); Odofin v. Ayoola (1990 1993) 2 SCNJ 160; Okosun Epi & Anor v. Aigbedion (1972) 1 All NLR (reprint) 805 at 809 810 were then cited in support, and to further submit that, the fact that Exhibits AL and AK produced from Exhibit AS show the land of Faluyi to be more than 500 acres, whereas Exhibit AS conforms with the size claimed by the Respondents is clear evidence of conflict. We were accordingly urged to resolve the question of identity in favour of the Respondents.

In reply on points of law, learned counsel for the Appellants argued that, since the Respondents have no complaint by way of cross-appeal,

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or Respondents Notice, the arguments that the identity of the land was not established go to no issue. The cases of Ezeanah v. Atta (2004) 7 NWLR (pt.873) 486 and Osazuwa v. Isibor (2003) 3 NWLR (pt.859) 16 at 32 33 were cited in support. It was then submitted that, in law, where the identity of the land claimed is not in dispute, the requirements for its proof would not arise. The cases of Aremu v. Adetoro (2007) 16 NWLR (pt.1060) 244; Ogunleye v. Jaiyeoba (2011) 9 NWLR (pt.1252) 339 were cited in support; and to further submit that the Respondents did not make an issue of the identity of the land in dispute by disputing either the location, name or features in the Appellants Plan. That, at page 212 line 21 of the Record of Appeal, the trial Court found that the identity of the land in dispute was known to the parties.

Now, as pointed earlier in the course of this judgment, the first duty of a Plaintiff claiming for a declaration of title to land is to plead with certainty the identity of the land in dispute. Thus, proof by a Plaintiff of the identity of land in dispute is a condition precedent in an action for declaration of title to

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land. The onus of such proof therefore rests on the Plaintiff who seeks the Court to exercise its discretion by declaring title to the land he claims in his favour. See Makanjuola v. Balogun (1989) 1 NWLR (pt.108) 192; Otanma v. Youdubagha (2006) 2 NWLR (pt.964) 337; Momoh & Ors v. Umoru (2011) LPELR 8130 (SC) and Aremu v. Adetoro (2007) 16 NWLR (pt.1060) 244.

It should however be noted that, the necessity to adduce evidence in proof of the identity of the land in dispute, would be in issue at the hearing, only where the defendant has specifically disputed either the area or the size or the features or the location of the land as shown on the Plaintiffs Plan. See Garba & Ors v. Chibiri & Ors (2013) LPELR 22614 NWLR (pt.1272) 22; Nwankwo v. Ofomata (2009) 14 NWLR (pt.1162) 525 and Anyanwu & Ors v. Uzowuaka & Ors (2009) 13 NWLR (pt.1159) 445.

In the instant case, the learned trial Judge found and held at page 212 lines 7 25 of the Record of appeal as follows:

Let me say straightaway that the parties in their pleadings did not make an issue of the identity of the land being claimed by them respectively.

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However, as it behooves a Claimant for declaration of title to identify with certainty the land which his claim relates, at the trial, the Plaintiffs in 6/89/ tendered Exhibit N, Plan No. OG/545/2005/LID/-2 which shows the land being claimed by the Plaintiffs and the portion allegedly trespassed upon by the Defendant verged Green; and as the 1st Defendant in 133/00, tendered another Plan Exhibit P Plan No. OG/545/2005/LID/01 showing portions occupied by the 2nd 7th Defendants and on which they are sued. In both Plans, the land being claimed by the Plaintiffs as Ijako Community land is the same and thereon edged Red while on Exhibit P the portion being claimed by the Plaintiffs in 133/00 is verged Yellow and shown to be the same as the land being claimed by the 1st Defendant. The Plaintiffs in 133/00 also put in evidence Plan No. BO/DISP01/2005/OG admitted in evidence as Exhibit AL whereon the land said to be in dispute and being claimed by the Plaintiffs in 6/89 and 1st Defendant in 133/00 is shown verged Black. In effect, the identity of the land in dispute between the

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protagonists is known to the parties. It is the parcel of land verged Red on Exhibits N and P and Black on Exhibit AL. It should be noted however, that the land said to belong to Faluyi family the Plaintiffs in 133/00 on Exhibits AK and AL is larger, indeed about twice in size of the land in dispute.

Though the learned trial Judge found that the land claimed by the Appellants herein is larger in size than the land in dispute, his finding and conclusion was that the land in dispute is known to the parties. It should be noted that, the Respondents neither cross-appealed nor filed a Respondents Notice. It logically means that the Respondents had no disagreement with the findings of the trial Court that the land in dispute is one that is known to the parties.

I note also that from pages 230 236 of the Record of Appeal, the learned trial Judge made extensive findings on the issue of the extent and boundaries of the land claimed by the Appellants. It should be noted that, the Appellants had pleaded in paragraph 10 of the 2nd Further Amended

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Statement of Claim and Plan that the area specifically trespassed upon are as shown in Plan No: BO/DISP.01A/2005/OG dated 28/6/2005. The area he sought declaration upon was pleaded as that depicted in Plan No. BO/DISP01/2005/OG dated 5/12/2005 drawn by B.O. Oyeleye, Registered Surveyor. The Plans are in evidence as Exhibits AK and AL respectively. The area of land claimed by the Appellants is verged Red in both Exhibits AK and AL. While Exhibit AK was tendered to show the portions of land trespassed upon by the 4th 8th Respondents, Exhibit AL is a composite Plan of the issues involved in the Appellants claim or dispute between the parties. Both Plans were tendered and admitted without objection. It should be noted that the Respondents did not Counter-Claim in Suit No: HCT/133/2000, which is subject of this appeal. Perhaps the learned trial Judge confused the 1st 3rd Respondents Claims in Suit No. 6/89 against one Alhaji M. O. Odutola, which was consolidated and heard together with HCT/133/2000, as a Counter-Claim. It was nothing but a separate

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claim to which the Appellants were not a party and therefore, the pleadings thereon was not binding on the Appellants. To that end, I find that the 1st 3rd Respondents had no claim in HCT/133/2000 as they had no Counter-Claim.

Having found as above, I am of the view that the Respondents were bound by the Appellants Plans Exhibits AK and AL which depicted the size, features and location of the Appellants Faluyi family. It was therefore erroneous for the trial Court to have limited the land claimed by the Appellants to the area verged Black on Exhibit AL. The area marked Black on Exhibit AL is the area allegedly claimed by the 1st 3rd Respondents as Ijako land. In any case, the learned trial Judge having found that the land in dispute is known to both parties, it was not necessary to insist on proof of the identity of the land in dispute.

It should be noted that Exhibit AS was tendered by Appellants and admitted without Objection. Similarly, Exhibit AK and AL were tendered and admitted without objection. Exhibits

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AK and AL are said to have been culled from Exhibit AS; and therefore the area claimed by the Appellants in the instant Suit is that as depicted in Exhibit AK and AS. The Appellants are therefore clear and specific on the land being claimed especially when the previous suits between the parties have been held not to operate as res judicata between them. The learned trial Judge therefore erred when he held in page 136 of the record of appeal that the Appellants in this suit did not know the extent of the land settled upon by Ebisa. Afterall, the learned trial judge had found that both parties knew the land they were disputing on. Thus, in Ayuya & Ors v. Yonrin (2011) 10 NWLR (pt.1254) 135, the Supreme Court held that:

It is common occurrence in land matters for parties to refer to the same piece or parcel of land by different names and also indicate in their respective plans different features but the bottom line remains the fact that the parties know the land in dispute otherwise there would be no dispute at all; what is usually in dispute is the ownership of the particular

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land being claimed by the plaintiff. It follows therefore that where a plaintiff claims ownership of a piece or parcel of land against his neighbour and describes the boundaries of the said land in a Survey Plan which is tendered and admitted in evidence, that survey Plan clearly refer to the particular piece or parcel of land in dispute and it cannot be said that the identity and extent of the said land is unknown. What the Plaintiff/Claimant now needs to do is to prove/establish his title to the said undisputed land by one of the five ways/methods of proving ownership or declaration of title to the land and to also testify as to the features etc. on the land in issue.

That is exactly what transpired in this suit subject of this appeal. I now proceed to determine whether the Appellants proved their claim of exclusive title to the land in dispute. This is more so because in the absence of a Counter-Claim, it is the Plaintiffs Survey Plan that determines the extent of the area of the land in dispute. See Duru v. Onwumelu (2001) LRCN 3146 and Ogunkoya v. George (2013) LPELR 20686 (CA).

On the claim for title, learned counsel for

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the Appellants contended that, there are overwhelming evidence on the records which show that the decision of the trial Court that the traditional evidence of the 1st 3rd Respondents is preferable to that of the Appellants is perverse. That incredibly, the learned trial Judge believed the evidence that the entire Ijako Community which consists of indigenes and non-indigenes own the land in dispute. That as pleaded in paragraph 14 of the 1st Further Amended Reply to 1st 3rd Respondents defence, it is obvious that the 1st 3rd Respondents did not plead facts of how non-indigenes became owners of the land. That the 1st 3rd Respondents were instituting and defending actions on behalf of the entire Ijako Community and not Ijako or Ebisa family. It was then submitted that, the description of the 1st 3rd Respondents as representing themselves and other members of the Community is strange as it presupposes that the 1st 3rd Respondents are representing non-family members or non-indigenes. That the 1st 3rd Respondents who had the burden of proving such legal entity failed to so prove. The case of

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Ewo v. Ani (2004) 3 NWLR (pt.861) 611 was cited in support.

Learned Counsel for the Appellants contended that there are two many contradictions in the pleadings and evidence of the 1st 3rd Respondents which destroy their traditional history. Learned Senior Counsel listed about eight (8) such contradictions which space will not permit me to reproduce here. Furthermore, that in treating the traditional history of the Appellants, the learned trial Judge proceeded with the mindset of finding contradictions in the evidence of DW5 and DW6, where none existed. That in finding the traditional history of the 1st 3rd Respondents more convincing, the trial Court took a route that is narrow and ignores the various pieces of evidence which should have been placed on imaginary scale. That, the trial Court considered the view that only one person from the Appellants Faluyi family had been Baale in contrast to the 1st 3rd Respondents family who had produced three (3) Baales, but argued that Baaleship cannot be a sole determinant of ownership of land particularly when the 1st 3rd Respondents admitted that Ijako Community consist of both

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indigenes and non-indigenes.

Learned Counsel for the Appellants went on to submit that the learned trial Judge did not avert his mind to the fact that the 1st 3rd Respondents had no Counter-Claim. Furthermore, that the 1st 3rd Respondents gave evidence that the Faluyis are members of Ijako Family. That if indeed, as plethora of evidence reveals, the land belong to the entire Ijako family of which the Appellant belong, then the judgment of the trial Court which dismissed the claim of the Appellants to ownership of the land contradicts previous judgments and even the pleadings of the 1st 3rd Respondents, and therefore perverse. That it should be remembered that the 1st – 3rd Respondents did not Counter-Claim against the Appellants in Suit NO: HCT/133/2000 and therefore, to give judgment to the vast area in dispute in this case is unjustified. That, even if the trial Court was right in dismissing the Appellants claims, in the absence of a Counter-Claim, such dismissal would not translate into granting title to the 1st – 3rd Respondents. The case of Muda Anwoyi & Ors v. Shodeke & Ors (2001) 6 NWLR (pt.709) 321 at 332 was

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cited in support. We were accordingly urged to hold that, the learned trial Judge went beyond the case before him in Suit No: HCT/133/2000 to issue declaration of title in favour of the 1st 3rd Respondents on the vast area verged Green in Exhibit N.

In response, learned counsel for the Respondents argued that, there is no ground of appeal challenging the constitution of the case. That, the Appellants had contended that membership of Ijako Community comprise also of slaves and which contention was rejected by the trial Court and that there is no ground of appeal against it.

Learned Senior Counsel for the Respondents also argued that the arguments of the Appellants in respect of communal ownership of Ijako land is without substance, in view of the fact since the land had since 1960 been in Suit No: 27/60 (Exhibit G) determined to be communally owned. Suit Nos: 255/60 (Exh. H) and 151/26 (Exh. C) were also referred to and to further contend that there is no appeal against those judgments. Section 240 of the 1999 Constitution and the cases of Ejuetami v. Olaiya (2001) 18 NWLR (pt.746) 572;

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Agwuegbo v. Kagoma (2000) FWLR (pt.19) 511; Harriman v. Harriman (1987) 3 NWLR (pt.60) 224 and Ajomale v. Yaduat (No.1) (1991) 5 NWLR (pt.191) 257 were cited in support and to further submit that oral evidence cannot be allowed to contradict Exhibits G and H.

Learned Counsel for the Respondents went on to argue that, evidence regarding the age of the original 1st Defendant vis–vis the date of founding of Ijako land is irrelevant and goes to no issue as the date of founding of the land was not an issue at the trial, same not having been pleaded. The cases of Nwawuba v. Enemuo (1988) 2 NWLR (pt.78) 581 and Bida v. Abubakar (2011) 5 NWLR (pt.1239) 130 were cited in support. On the findings on genealogy of the Appellants, learned counsel contended that, Appellants did not refer to any evidence to fault the finding of the trial Court. The cases of Ogunjamila v. Ajibade (supra) and Aiyeola v. Pedro (supra) were then cited to submit that, the Appellants merely relied on their un-substantiated pleadings but forgot that pleadings cannot be elevated to status of credible evidence.

On the issue of Baaleship, learned counsel

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for the Respondents referred to the cases of Adedayo v. Babalola (1995) 7 NWLR (pt.408) 383; Adesanoye v. Akinwale (1997) 3 NWLR (pt.496) 664 and Kuti v. Alashe (2005) 17 NWLR (pt.955) 625, to submit that the learned trial Judge rightly considered the fact that the Appellants family has produced only one Baale as compared to that of the Respondents who have produced four (4) Baales.

It is also the contention of learned senior counsel for the Respondents that learned counsel for the Appellants made heavy weather that the trial Court gave judgment to the Respondent in respect of the land verged Red on the Respondents Plan No. OG/545/2005/LID-02 less the portion verged Blue acquired by the Government, having found that the 1st 3rd Respondents established title to the land. That the allegation on giving judgment when there is no Counter-Claim is unfounded because the Respondents drew two amended Plans which are exactly the same; to wit: Plan No. OG/545/2005/LID-01 in respect of HCT/133/2000 (Exhibit P) and No: OG/545/2005/LID-02 in respect of HCT/6/89 (Exhibit N). That the judgment is in respect of the area

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claimed by the 1st 3rd Respondents verged Red in Exhibits N and P and Black in Appellants Plan (Exh. AL).

Learned Senior Counsel for the Respondents submitted that the learned trial Judge preferred the evidence of the Respondents on genealogy which is in keeping with either admissions of the averments or evidence of the Respondents, or contradictions in the evidence of the Appellants witnesses. Essentially, that the evidence of the 1st 3rd Respondents on their genealogy were not denied by the Appellants. Furthermore, that the learned trial Judge found that the Respondents were exercising acts of ownership through farming on the land as shown on Exhibit N. That the finding of the trial Court supports the pleading of the 1st 3rd Respondents that Falolu begat Fayemi and Fayemi begat Faluyi; and that the testimony of PW7 that Agboodu begat Bamigbose who begat Faluyi, Ilori, Oderinde and Ogunseye was not contradicted. The cases of Dakur v. Dapal (supra) and Okafor v. B.D.U. (2017) 5 NWLR (pt.1559) 385 at 435 were then cited to submit that, the trial Court was in a

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pre-eminent position to evaluate the evidence which evaluation has not been shown to be perverse. We were accordingly urged to resolve the issues raised herein, in favour of the Respondents.

A sober perusal of the Appellants, claims against the Respondents will show that the principal relief sought is for declaration of title. The other reliefs are ancillary to the main claim. It is the law that declaratory reliefs are generally granted or refused at the discretionary powers of the Court. That being so, a party seeking a declaratory relief has the onerous burden of adducing credible and sufficient evidence to back the relief sought. In an action for declaration of title, like in all declaratory actions, to succeed, the Plaintiff must rely on the strength of his own case. He cannot be heard to say that the Defendant admitted his claim, or led no evidence as such declaratory relief is not granted on admissions by the Defendant or that the Defendant proferred no evidence. The Plaintiff may however rely on the aspect of the defence that supports his claim, to bolster his own case. It therefore means that a declaratory relief cannot be granted in the absence

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of evidence. Thus, unless where the Defendant has filed a Counter-Claim, there is no duty on him to prove anything. See Wachukwu & Anor v. Owunwanne & Anor (2011) 14 NWLR (pt.1266) 1; Gumel & Anor v. Sambo (2014) LPELR 24607 (CA) Nruamah & Ors v. Ebuzoeme & Ors (2013) 13 NWLR (pt.1372) 474 and Adeleke & Anor v. Iyanda & Ors (2001) 13 NWLR (pt.729) 1.

In the instant case, the Plaintiffs/Appellants claim for title is built on traditional history. No doubt a claim for title based on traditional history is one of the recognized ways of claiming title to land in Nigeria. See Idundun v. Okumagba (1976) 9 ? 10 S.C. 227; Dambo v. Waziri & Ors (2014) LPELR 23983 (CA) and Nwabuoku & Ors v. Onwordi & Ors (2006) 5 S.C. (pt.III) 103. Where a Plaintiff claims title to land by way of traditional history, he must plead and lead credible evidence to establish the following facts to the satisfaction of the Court:

(a) who is the original founder of the land;

(b) how he founded the land; and

(c) the particulars of the intervening owners through whom the Plaintiff now claims.

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All the above stated facts must be proved by credible evidence to the satisfaction of the Court. See Anyafulu & Ors v. Meka & Ors (2014) 7 NWLR (pt.1406) 396; Ansa & Ors v. Ishie & Ors (2005) LPELR 497 (SC) and Eze & Ors v. Atasie & Ors (2000) 10 NWLR (pt.676) 470.

In the instant case, the Plaintiffs/Appellants pleaded the traditional history of their title to the land in dispute in paragraphs 13, 14, 15, 16, 17, 18, 19, 20 43 of the 2nd Further Amended Statement of Claim and Plan at pages 11 15 of the Additional Record of Appeal which was deemed transmitted on the 06/5/15. Evidence in support of the traditional history was led by the Plaintiffs/Appellants through DW5. The learned trial Judge thoroughly reviewed the facts and evidence led, and therefore held at pages 248 line 12 249 line 7 of the Record of Appeal as follows:

Now, the traditional evidence of the Plaintiffs in 133/00. I should mention that the 1st Defendant joined issue with the Plaintiffs on every aspect of their traditional history. However, in proof of paragraphs 13, 14, 15 and 16 of their pleadings; they led

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evidence through the DW5 who testified that the land in dispute originally belonged to Ebisa their ancestor; he however did not say the land, either the portion verged Red or Black, the witness gave contradictory evidence. He testified that Ebisa came from Ile-Ife with seven deities. According to him Ebisa from Ile-Ife first got to Oke-Ata in Abeokuta and while there consulted Ifa Oracle to know if he had reached his destination. The Ifa told him to go further towards Isale-Odo. Ebisa complied with the directive until he got to Isale-Odo which the Ifa told him was his destination. He settled there and the place is now known as Ijako. It follows that the place now known as Ijako was originally known as Isale-Odo, it later assumed the name Ijako after the nick-name of Ebisa at a time that was not disclosed. The DW5 in his evidence in Chief said Ebisa settled on the land about 400 years ago and later that he did not know the year Ebisa settled in Ijako. On his part, the DW6 said he does not know Ebisa, he does not know where he came from and who his father was. Again the DW5 who in purported prove of paragraph 13 of the Second

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Further Amended Statement of Claim and Plan said that Ijako was founded before Ota however admitted under cross-examination that he does not know when Ota was founded.

The 1st Defendant joined issue with the Plaintiffs on the allegation that Ebisa was the first to settle in Ijako. They pleaded and led evidence that Ijako, Ewu, Amosu and Ajeniya had been in Ijako before Ebisa. In fact they contend that Ajeniya begat Ebisa. The Plaintiffs did not specifically deny the allegation; they merely contend that Ewu was not a person rather, it was Ebisa cognomen. I adopt my earlier view and finding on the issue while considering the Plaintiffs case in 6/89 above. I only need to add that the evidence of the Plaintiffs that Ebisa first settled on Ijako is not cogent and convincing. I find the minimal evidence of the Plaintiffs/Defendants on the averment more credible and I believe it. I find as a fact that Ijako, Ewu, Amosu and Ajeniya had been in Ijako before Ebisa. I therefore find as a fact that Ebisa was not the first to settle in Ijako.

A very careful and sober review of the traditional evidence led would show that there is a point of

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convergence between the traditional history adduced by the Appellants with those of the Respondents. The only difference is that while the traditional history of the Appellants starts with Ebisa as the founder of the land claimed, that of the 1st ? 3rd Respondents went far beyond Ebisa. It starts with one Ijako who migrated from Ile-Ife. The link down the line is Ebisa with the Appellant contending that it was Ebisa who founded the land while the 1st 3rd Respondents contended that it was Ijako. The 1st 3rd Respondents however agreed that Ebisa was a descendant of Ijako. The 1st 3rd Respondents pleaded at paragraph 44 of the 6th Further Amended Statement of Defence and Plan that, Ebisa begat Falolu who begat Fayemi (female) among others. That Fayemi married one Oso-Ologundudu at Iga-Olusi, Ota and that it was through that marriage that Faluyi the predecessor of the Appellants was born. The 1st 3rd Respondents therefore agreed that the Appellants are also descendants of Ebisa through Fayemi the daughter of Falolu.

It is therefore clear to me that both the Appellants and the 1st 3rd Respondents are related by

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blood through Ebisa. In other words, both the oral and documentary evidence on the records show that both the Appellants and the 1st 3rd Respondents are descendants of and belong to the larger Ijako family. Indeed, the learned trial Judge was aware of this fact, when he observed at page 223 lines 12 24 of the records as follows:

while the Plaintiffs in 6/89 on account of the judgments in the two cases alleged in various paragraphs of their pleadings that the two courts made a finding of facts that they and the Plaintiffs in HCT/133/00 are members of the same family.

It should be noted that the Plaintiffs in HCT/6/89 are the 1st 3rd Defendants in HCT/133/2000 and 1st 3rd Respondents in this appeal. The Appellants are not parties to HCT/6/89 but Plaintiffs in HCT/133/2000. This fact is supported by Exhibits AS and AQ wherein it is indicated that members of both the Appellants Faluyi family and the 1st 3rd Respondents hold land in the land in dispute. The learned trial Judge was therefore right when he declined to declare exclusive title to the land on

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the Appellants Faluyi family.

It should be noted that the 1st 3rd Respondent did not Counter-Claim in Suit No: HCT/133/2000 which is subject of this appeal. The Appellants herein, were not parties in Suit No: HCT/6/89, so could not be bound by whatever decision was made in that suit. Incidentally, the learned trial Judge did not declare title in favour of the 1st 3rd Respondents in Suit No: HCT/133/2000 as erroneously contended by the Appellants. The learned trial Judge merely dismissed the Appellants claims in Suit No: HCT/133/2000 without more but declared no title for the 1st 3rd Respondents on the land in dispute against the Appellants. Indeed, he could not do so as there was no Counter-Claim in Suit No: HCT/133/2000. These issues are therefore resolved against the Appellants.

Having held as above, it would be seen that this appeal has succeeded in part. However, with the resolution of issues 3, 4, 5, 6, 7th, 8th and 9th against the Appellants, the appeal lacks merit and is hereby dismissed. I make no order on costs.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview Of the

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Klead Judgment of my learned brother HARUNA SIMON TSAMMANI, JCA, just delivered.

My Lord has adequately dealt with the issues in this appeal. I agree entirely with the reasons given as well as the conclusion that the appeal lacks merit.

It is also my view that notwithstanding that issue NO. 2 was resolved in favour of the Appellant, this appeal lacks merit and it is dismissed by me.

There shall be no order as to costs.

FOLASADE AYODEJI OJO. J.C.A.: I have read before now the lead judgment just delivered by my learned brother, Haruna Simon Tsammani JCA. I agree with his Lordship that the appeal succeeds in part.

His Lordship has dealt meticulously with all issues raised and canvassed in this appeal. The fact that the 1st – 3rd Respondents did not counterclaim makes the burden on the Appellants who seek declarative reliefs heavier. See ONOVO & ORS VS. MBA & ORS (2014) LPELR 23035 AT 73 PARAS B – D, where ARIWOOLA JSC held thus:

“Ordinarily, and there is no controversy on it, that in a claim for declaration of title, where the defendant does not file a counterclaim the burden is heavier on the plaintiff

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as claimant to prove his title to the same land in dispute. See ADEKANMBI VS. JANGBON (2007) ALL FWLR (PT. 383) 152 AT 160, (2007) 24 WRN 45 AT 57, ELIAS VS. DISU (1962) ALL NLR (PT. 1) 214 AT 2220 (1952) 1 SCNLR 361.”

The Appellants failed to lead credible evidence to satisfy the lower Court that they are entitled to the declarative reliefs sought by them. The Court was therefore right to have dismissed their claims.

It is for the above and the more elaborate reasons given by my learned brother in the lead judgment that I also find this appeal unmeritorious and dismiss same. I abide by the order of costs.

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Appearances:

J. A. Badejo, SAN with him, J. D. OloruntobaFor Appellant(s)

Alh. Lasun Sanusi, SAN with him, Chinedu Ugwu, Esq. and Aminat O. Sanusi, Esq.For Respondent(s)

Appearances

J. A. Badejo, SAN with him, J. D. OloruntobaFor Appellant

AND

Alh. Lasun Sanusi, SAN with him, Chinedu Ugwu, Esq. and Aminat O. Sanusi, Esq.For Respondent