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IKUYINMINU v. OYENEYIN & ORS (2020)

IKUYINMINU v. OYENEYIN & ORS

(2020)LCN/14284(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Thursday, June 25, 2020

CA/AK/45/2015

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

FREDRICK IKUYINMINU APPELANT(S)

And

CHIEF RUFUS OLAYELE OYENEYIN & 4 ORS RESPONDENT(S)

RATIO

THE PRINCIPLE OF THE PLEA OF ESTOPPEL

The principle of the plea of estoppel is applied in civil cases where the res (the subject-matter) in contention, the issues and parties in the new case are the same as in the earlier proceedings. Where any of the three conditions is missing in the new case, the plea will fail. The principle evolved in the public interest of the desirability of seeing an end to every litigation. Further, in the wider spectrum, the principle embraces not only issues upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but also to every issue which properly belong to the subject-matter of the litigation and which the parties exercising reasonable diligence might have brought forward in the earlier proceedings. See the cases of: (1) Yanaty Petrochemical Ltd. v. EFCC (2017) LPELR – 43473 (SC); (2) Gbemisola v. Bolarinwa & Anor. (2014) LPELR – 22463 (SC); (3) The Honda Place Ltd. v. Globe Motor Holdings (Nig.) Ltd. (2005) 14 NWLR (Pt. 945) p. 273; (4) Ebba v. Ogodo (2000) 10 NWLR (Pt. 675) p. 387; (5) Udo v. Obot (1989) LPELR – 3297 (SC) and (6) Aro v. Fabolude (1983) LPELR – 558 (SC). PER OMOLEYE, J.C.A.

FACTORS TO ESTABLISH FOR THE PLEA OF ESTOPPEL RES JUDICATA TO SUCCEED

Hence for the plea of estoppel per res judicata to succeed, the party relying on it must plead and establish the following:
a. that the parties or their privies involved in both the previous and present proceedings are the same;
b. that the claims or issues in dispute in both proceedings are the same;
c. that the res judicata or the subject-matter of the litigation in the two cases is the same;
d. that the previous decision relied upon to support the plea is valid, subsisting and final; and
e. that the Court which gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction. See also the cases of: (1) Yoye v. Olubode (1974) 1 All NLR (Pt. 2) p. 118; and (2) Fadiora v. Gbadebo (1978) 3 (SC) p. 219. PER OMOLEYE, J.C.A.

WHETHER OR NOT A PLAINTIFF IN AN ACTION FOR DECLARATION OF TITLE CAN PLEAD AND RELY ON A PREVIOUS JUDGEMENT IN HIS FAVOUR NOT AS RES JUDICATA BUT AS AN ESTOPPEL
Furthermore, it is a general principle of law that, a plea of estoppel per res judicata is a shield rather than a sword and is accordingly not available to a Plaintiff in his Statement of Claim, as, if allowed this would in reality amount to the Plaintiff impugning the jurisdiction of the Court to entertain his suit, since a successful plea of res judicata means that the Court is without jurisdiction to hear the new matter. See the cases of: (1) Yoye v. Olubode (Supra); (2) Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) p. 561; (3) Ike v. Ugboaja (1993) 6 NWLR (Pt. 301) p. 539;(4) Ayuya & Ors. v. Yonrin & Ors. (2011) 10 NWLR (Pt. 1254) p. 135; (5) Tukur v. U.B.A. & Ors. (2013) 4 NWLR (Pt. 1343) p. 90; (6) Onwu & Ors. v. Nka & Ors. (1996) 7 NWLR (Pt. 458) p. 1 and (7) Chukwuma v. Ifeloye (2008) 18 NWLR (Pt. 1118) p. 204. However, the law is equally well settled that, a Plaintiff in an action for declaration of title, as in the instant matter, may plead and rely on a previous judgment in his favour not as res judicata but simply as an estoppel, in the sense that it constitutes a relevant fact to the issue in the present action and the judgment will be conclusive of the facts which it had already decided- see the cases of: (1) Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) p. 127; (2) Esan v. Olowa (1974) 3 SC p. 125; (3) Adogan & Anor. v. Aina (1964) LPELR – 25179 (SC); (4) Igwego & Ors. v. Ezeugo & Anor. (1992) LPELR – 1458 (SC) and (5) Achiakpa & Anor v. Nduka & Ors. (2001) 14 NWLR (Pt. 734) p. 623. PER OMOLEYE, J.C.A.

WHETHER OR NOT THE ONUS IS ON THE PLAINTIFF TO ESTABLISH THE IDENTITY OF THE LAND HE IS CLAIMING IN AN ATION FOR DECLARATION OF TITLE TO LAND

The law is fundamentally sacrosanct that, in an action for declaration of title to land and/or injunction pursuant to claim for damages consequent upon trespass, the onus is on the Plaintiff to establish the identity of the land he is claiming precisely, positively and without any ambiguity. Where he thus fails to give the exact extent and identity of the land he seeks declaration on, his action will be dismissed. Amongst a host of judicial authorities on the age-long legal principle, see the cases of: (1) Akinterinwa & Anor. v. Oladunjoye (2000) 6 NWLR (Pt. 659) p. 92; (2) Ezukwu v. Ukachukwu & Anor. (2004) 17 NWLR (Pt. 902) p. 227; (3) Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) p. 282; (4) Ekpemupolo & Ors. v. Edremoda & Ors. (2009) 8 NWLR (Pt. 1142) p. 166 and (5) Otanma v. Youdubagha (2006) 2 NWLR (Pt. 964) p. 337. The law is equally trite that, where the identity of the land is not in issue, in the sense that parties know exactly the identity of the land, the subject-matter of the dispute between them, the requirement that the parties and/or Plaintiff prove(s) the identity of the land ceases to be a necessity. See the cases of: (1) Okonkwo v. Adigwu (1985) 1 NWLR (Pt. 4) p. 694; (2) Mbaeri v. Alade (1987) 2 NWLR (Pt. 55) p. 101; (3) Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) p. 352 and (4) Atanda v. Iliasu (2013) 6 NWLR (Pt. 1351) p. 529. PER OMOLEYE, J.C.A.

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State holden in the Ondo Judicial Division (hereinafter referred to as “the trial Court”) in Suit No. HOD/161/2012 delivered on the 20th of October, 2014 per Akintan–Osadebay, J.

The Respondents who were plaintiffs at the trial Court, sued the Appellant as Defendant in an action for declaration of title to a parcel of land situate along Ondo/Ore road, in Ondo town. The Respondents, vide their Writ of Summons and Statement of Claim dated and filed on the 23rd of October, 2012 specifically claimed against the Appellant as follows:
“a. Declaration that the Plaintiffs are the owners of the land in dispute by the judgment of this Honourable Court in Suit No. HOD/6/77 and are thus entitled to the grant of statutory right of title to the land in dispute.
b. Declaration that the Defendant is not a member of the Oloka family and as such has no right to institute any action on behalf of the Plaintiffs’ said family.
c. An order of Court restraining the Defendant and any member of the

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Defendant’s Nominone family from parading himself or themselves as members of the Oloka family.
d. N5,000,000.00 (Five million Naira) general damages for trespass committed by the defendants on the land in dispute.
e. Perpetual Injunction restraining the Defendant, his servants, agents or privies from further trespassing on the land in dispute.”

Upon being served with the Respondents’ Writ of Summons and Statement of Claim, the Appellant in his Statement of Defence/Counter-Claim dated the 4th of July, 2013, filed on the 15th of July, 2013, challenged the Respondents’ claim to the parcel of land in dispute and also counter-claimed, verbatim, against the Respondents as follows:
“a. A Court declaration that the defendant/counter claimant and members of his family are the owner of the land in dispute at Ugboje Oloka family land his progenitors as a member of Oloka family having settled on the same, since before without any disturbance from any quarters are person entitled to the grant of customary right of title over the land in dispute.
b. A declaration that the defendant is a member of Oloka family and has

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right to institute action against anybody who trespass on his family land and on behalf of Oloka family being a member of the Oloka family.
c. An order of Court restraining the claimants and members of their family to stop further declaring the defendant/counter claimant and members of his family not a member of Oloka family.
d. N10,000,000.00 (Ten Million naira) general damages for the psychological trauma, and embarrassment subjected the defendant/counter claimant and member of his family by declaring them not members of Oloka family and persona non grata in Oka.
e. Perpetual injunction restraining the claimants, their privies, servants, agents from further meddled or trespass into his farmland at Ugboje now in dispute.”

After the exchange of pleadings by the two sets of parties, the case proceeded to trial in the trial Court on the 25th of February, 2014. In the bid to establish their claims, the Respondents fielded two witnesses and tendered in evidence two documents, Exhibits P1 and P2. While in defence of the action in the main and to prove his counter-claim, the Appellant called three witnesses and also tendered four documentary

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evidence, Exhibits D1, DC2, D3 and D4.

The brief background facts of this matter from the perspective of the Respondents who are principal members of Oloka family are that, the very vast portion of land in dispute known as Ugboje located on both sides of Ondo/Ore road in Ondo town is a portion of a conglomerate of lands and the property of the ancestors of the Respondents. That the said ancestors, Adesimirewa and Lupona were the first settlers of the conglomerate of lands. The said portion of land in dispute located in Ugboje is one of the conglomerates, so also are other very large portions of lands located in Asantan Oloka, Asantan Fasan, Okegun, Okeloro, Waowao and Oka-Okoamongst others. The entirety of the said conglomerate of very large expanses of lands is also referred to as Oka land and the property the entire Oloka family, the descendants of Adesimirewa and Lupona. The entire conglomerate has not been partitioned or shared amongst the members of the family, but concessions of portions of the conglomerate are only granted to members for their respective use. Hence, such conceded portions are in control and possession of branches of the Oloka

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family. The Ugboje land, the portion of land in dispute has therefore been in control and possession of Alewi Odole Fadeni, the grandfather of the 3rd Respondent. Alewi Odole Fadeni is a branch of the Oloka family. The 3rd Respondent is a great-great-great-grandson of the said original settler, Adesimirewa. The 3rd Respondent traced his genealogy to Sunmola Fadeni, son of Alewi Odole Fadeni, son of Sasere Adi, one of the sons of Lisa Patako Falemara, one of the sons of Adesimirewa.

​That the Alewi Odole Fadeni had been in control and long possession of the land in dispute, whereon he entrenched tenants, farmed and planted both cash and arable crops during his lifetime. Upon the demise of Alewi Odole Fadeni, his son Sunmola Fadeni the 3rd Respondent’s father, continued to farm and also put tenants on the said land. After the death of Sunmola Fadeni in 1982, the 3rd Respondent who was then living outside Nigeria in Liberia inherited the land and allowed the tenants of his late father to continue to farm thereon. However, when the 3rd Respondent relocated back to Nigeria in 2008, he discovered that his said father’s tenants had been chased away by

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the Appellant and replaced with his, that is, the Appellant’s own tenants. All attempts to remove the said Appellant’s purported tenants from the land proved abortive, hence, the Respondents who are the principal members of Oloka family instituted the action, the subject of this appeal, against the Appellant. It is the assertion of the Respondents that the Appellant has no part in the entire Oka land including the portion of land in dispute, he not being a member of Oloka family. According to the Respondents, Lisa Patako Falemara the great-great-great-grandfather of the 3rd Respondent merely permitted one Fasamoye Nominone, the Appellant’s great-grandfather to hunt on the land in dispute and the latter was specifically forbidden from planting any permanent crops thereon. That aside from the instant matter, the Appellant’s family had at different times in the past contended with the Respondents’ Oloka family over other portions of the Oloka conglomerate of lands. The said contests were subjects of litigations which were adjudged in favour of the Respondents’ family and against the Appellant’s family. The Respondents

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relied on two of those decided actions in support of their suit, the subject of this appeal.

Contrariwise, the Appellant traced his own genealogy to Ikuyinminu Akindeyin, Nominone Akindeyin, Fasanoye Akindeyin, Akinmusewe and Adesimirewa. In essence, he also claims to be a great-great-great-grandson of the original settler of the land in dispute, that is, Adesimirewa. The Appellant asserted that he is a principal member of the Oloka family just like the Respondents. That he and his other unnamed siblings were born, farmed and planted cash crops on the land with his late father Ikuyinminu Akindeyin, the latter having inherited the land in dispute from his own father. That he, that is, the Appellant is the only surviving son of his father Ikuyinminu Akindeyin and therefore the land in dispute devolved on him upon the demise of his said father in 1986.

At the close of the cases presented by the two sets of parties and after the adoption of their respective counsel’s written addresses, the trial Court in its considered decision gave judgment in favour of the Respondents in the main action and dismissed the Appellant’s Counter-Claim in its

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entirety. That is, all the claims of the Respondents were granted save for the claim for damages whereon general damages for trespass in the sum of Fifty Thousand Naira (N50,000.00) only was granted in favour of the Respondents and against the Appellant.

The Appellant is irked that he lost the suit, he therefore filed this appeal to this Court against the said judgment of the trial Court. By the order of this Court made on the 29th February, 2016, the Appellant was granted permission to amend his duly filed original Notice of Appeal. The Amended Notice of Appeal of seven grounds of appeal dated and filed on the 28th of September, 2015, was deemed properly filed on the 16th of March, 2020. For good understanding and easy referencing, the seven grounds of appeal are hereunder reproduced, verbatim, but short of their particulars, as follows:
“1. The trial Court misdirected self when it held in its judgment as follows:
“Unfortunately, the witness of the plaintiff was evasive and very slippery in his reaction to most questions Counsel for the Defendant asked him. His evidence was neither here nor there. D.W1 confirmed that he was the

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owner of the land for more than seventy years ago. Which he has been in possession of same for many years.”
2. The action of the claimants is statute barred as the claimants and their family did not enforce the allegedly gotten judgment since year 1977 against any member of the claimant.
3. The trial Court failed to evaluate the evidence before it properly and thereby came to a wrong conclusion.
4. The trial Court misdirected itself when it held at page 24 line 16-23 of the judgment thus:
“It is evident form exhibit P2, that the land situate at Ugboje in Oka, which is the land in dispute was adjudged in favour of the ancestors of the 3rd claimant, the Alewi Fadeni stock. The Defendant cannot lay claim to the said land … and consequently concluded at page 27 thus “Judgment is hereby granted to the claimants against the defendant as follows:
a. A declaration that the Plaintiffs are owners of the land in dispute by the judgment of this Honourable Court in Suit No. HOD/6/77 and are thus entitled to the grant of statutory right of title to the land in dispute.”
5. The trial Court misdirected itself when

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it held it is evident from Exhibit P2 that the land situate at Ugboje in Oka which is the land in dispute was adjudged in favour of the ancestors of the 3rd claimant, the Alewi Fadeni stock.
6. The trial Court erred in law when it held at page 21 (last paragraph) – page 22 lines 1-4 of the judgment thus:
“However, a Plaintiff may rely on a previous judgment in his favour not as res judicata, but simply as an estoppels (as in the present action) in the sense that it constitutes relevant fact to the issue in the present action and the judgment will be conclusive. It is premised on the grounded principle of law and rightly too, that a party is precluded from contesting the contrary of any precise point which has been distinctly put in issue and with certainty.”
7. That the trial Court misdirected itself when it held at page 26 of the judgment thus:
“This Court cannot also overlook the documented narration of the Defendant’s father, facts upon which the Defendant hinged his title to the land in dispute. The findings of the Court in Exhibit P2 is to the effect that the ancestors of the Defendant settled at Ugboje with the

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permission of members of Oloka family (and not as of right) over 50 years ago and that his ancestor or privy did not on the preponderance of evidence proof settlement or inheritance. The defendant failed to trace his own line in his pleadings to the Oloka family, the radical owners of the land with precision.”

In compliance with the rules of practice of this Court, the learned Counsel for the respective parties filed and exchanged briefs of argument in substantiation of their opposing positions. The Appellant’s Brief of Argument dated and filed on the 9th of June, 2016 but deemed properly filed on the 16th of March, 2020 was settled by the Appellant’s Counsel, Prince A. F. Adejayan of the law firm of Royal Chambers A. F. Adejayan & Co. In the said brief, the four issues crafted from all the grounds of appeal for determination read verbatim as follows:
“1. Whether or not the Respondents have proved with certainty and precision the identity of the land in dispute to warrant the declaration of title granted in their favour by the lower Court?
2. Whether or not the Respondents have discharged the evidential burden of

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proof required in law to entitle them to declaration of title over the land in dispute by the trial Court?
3. Whether or not the Respondents have established estoppel pleaded to warrant the decision of the lower Court on it or put differently whether the plea of estoppel can avail the case of the Respondents in the lower Court in circumstances of this matter?
4. Whether or not the trial Court did not place unnecessary evidential burden on the Appellant in establishing his family membership of the Oloka family?”

On the other part, the Respondents’ Brief of Argument dated the 22nd March, 2018, filed on the 23rd of March, 2018 and deemed properly filed on the 16th of March, 2020 was settled by the Respondents’ Counsel, Mr. Yinka Muyiwa of the law firm of Yinka Muyiwa Chambers. The two issues identified for the resolution of the appeal in the Respondents’ said brief state verbatim as follows:
“1. Whether the trial Court was wrong in awarding judgment in favour of the Respondents on the plea of issue estoppel?
2. Whether on the prepondence of evidence led between the Appellant and Respondents, the trial Court

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was right in holding that the Respondents are entitled to the land in dispute between the parties?”

I have examined the two sets of issues crafted for the determination of the appeal by the two parties. The Appellant’s four issues having been sufficiently responded to under the Respondents’ two issues and since the Appellant is the aggrieved party, I will be adopting his four issues which I consider satisfactory for the resolution of his grouse about the judgment of the trial Court as posited in his amended notice and grounds of appeal.

I have observed that the subject of the plea of estoppel relied upon by the Respondents at the trial Court is also being contested by the Appellant in the appeal, this complaint is contained in ground six of the Amended Notice of appeal. Issue three, contained in the Appellant’s brief of argument, was distilled from the said ground six. The Respondents have responded to the complaint under issue one of their brief of argument. The plea of estoppel being very germane must therefore be considered and determined in the first instance. The Appellant’s contention is that the plea was not

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properly raised at trial by the Respondents and that the plea indeed does not avail the Respondents.

Thereafter, I will consider issues one, two and four together because they are interwoven, more so they have been responded to under the Respondents’ issue two.

It is apposite to note that although issues one and two in the Appellant’s brief of argument were supposedly distilled for resolution from grounds two, four and five of the Amended Notice of Appeal, I found that no submissions were proffered in substantiation of ground two which is a complaint that the action of the Respondents, the subject of this appeal, is statute-barred for failure of the Respondents to enforce the said earlier judgment Exhibit P2 obtained in their favour.
​Furthermore, the complaint raised in ground three of the Appellant’s amended notice of appeal is that the trial Court failed to properly evaluate the evidence adduced before it by the parties and that it thereby came to a wrong conclusion in the case. I have equally found that no issue was formulated for determination from the said ground three of the amended notice of appeal in the

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Appellant’s brief of argument. The law is trite that where a ground of appeal is not covered by the issues for determination set out in the Appellant’s brief of argument, that ground of appeal must be deemed to have been abandoned and should be struck out for incompetence. This is because an appeal is decided on the issues formulated from the grounds of appeal, see the cases of:(1) Albert Afegbai v. A.G. Edo State (2001) 14 NWLR (Pt. 733) p. 425; (2) Ngilari v. Mothercat Ltd. (1999) LPELR – 1988 (SC); (3) Ogundiyan v. State (1991) LPELR – 2333 (SC); (4) Wassah & Ors. v. Kara &Ors. (2014) LPELR – 24212 (SC) and (5) Patrick v. State (2018) LPELR – 43862 (SC). As stated at the beginning of this paragraph, issues not having been formulated from grounds two and three of the Amended Notice of Appeal and without any attendant submissions in their support, the said grounds two and three are hereby deemed to have been abandoned by the Appellant. Accordingly, grounds two and three of the Amended Notice of Appeal are hereby struck out for being incompetent.

ISSUE THREE
“Whether or not the Respondents have

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established estoppel pleaded to warrant the decision of the lower Court on it or put differently whether the plea of estoppel can avail the case of the Respondents in the lower Court in circumstances of this matter?”

SUMMARY OF THE SUBMISSIONS OF THE APPELLANT’S COUNSEL
It was the contention of the Appellant that the pivot of the case of the Respondents was predicated on Suit No. HOD/6/77 Exhibit P2 and that failure of the Respondents to plead the particulars of the head of estoppel relied upon was fatal to their case. For the issue of estoppel cannot be relied upon in the address of their Counsel in proof of their case. He relied on the provisions of Order 15 Rule 7(1) of the High Court of Ondo State (Civil Procedure) Rules 2012, that, all grounds of defence or reply which makes an action not maintainable or if not raised will take the opposite party by surprise or will raise issues of facts not arising out of the proceedings shall be specifically pleaded by a Plaintiff.

​What is more, the plea of estoppel cannot also avail the Respondents in the instant case, for the Respondents herein were not sued in a representative capacity in the

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action, Exhibit P2 and the Respondents equally failed to ascertain the identity of the land in dispute by tendering a disputed plan in the said action, Exhibit P2. These situations had made the subject-matter and issues decided upon in the said Exhibit P2 to be at large.

Also on Suit No. HOD/115/2005, Exhibit P1, also relied upon by the Respondents as constituting issue estoppel in this matter, he submitted that the plea is equally inapplicable to the action of the Respondents and therefore misconceived. In the first instance, the Appellant herein instituted Suit No. HOD/115/2005 Exhibit P1 in a representative capacity for himself and on behalf of Oka community, Oka, Ondo which encompasses Oloka family and there was no finding of Court countering the capacity in which the action was instituted. Hence, in that previous action, the parties, subject-matter and issues decided upon are quite distinct from those in the present matter.

​He reiterated the trite principle of law that, for the issue of estoppel to operate, the parties must be the same in the previous and present proceedings, the question that was decided in the previous action must have arisen

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in respect of the same subject-matter in the present action and the decision on the question submitted for the Court’s resolution in the previous action must be a subsisting final decision of a competent Court of law. Hence, if any of these features or materials is lacking, the doctrine of estoppel will not apply. He relied on the cases of: (1) Aro v. Fabolude (1983) 2 SC p. 75; Ebba v. Ogodo (2000) FWLR – 2094 at 2114 – 2115 D-A. The Respondents have therefore failed to successfully establish the plea of estoppel before the trial Court.
He urged this Court to resolve this issue against the Respondents.

SUMMARY OF THE SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The learned Counsel restated the established legal principle that, the plea of issue estoppel is a bar which precludes a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth. For, once an issue or claim has been decided upon by a Court of record, neither of the parties shall be allowed to call it in question and have it tried over again at any time thereafter, so long as the particular judgment or

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decree of the Court on same stands unreversed by an appellate Court. He referred to the case of: Ladega v. Durosimi (1978) 3 SC p. 91; where the Supreme Court held that, a party is precluded from contesting the contrary of any precise point which has been distinctly put in issue and with certainty determined. It is equally pertinent to bring to the fore that, in the case of Ladega v. Durosimi (Supra), although issues were joined before the Court with regard to a larger area of land, whereas the claim for declaration of title was in regard to a smaller portion of the land, it was held that the doctrine of issue estoppel would apply in such circumstances so as to make those issues to create an issue estoppel in a subsequent litigation between the same parties over the large area of the land. In the instant matter, the land in dispute in HOD/6/77, Exhibit P2 is a smaller portion of the very large expanse of land now in dispute in the action, the subject of the present appeal. The Court held in Exhibit P2 that the land in dispute, upon which issues were joined, belong to the Respondents’ family and that the Appellant’s ancestors were merely on a

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portion of the land as tenants by the permission granted them by some prominent members of the Respondents’ Oloka family. It was further held that the Appellant’s family was unable to establish title to the land either by inheritance or settlement, as the evidence adduced by them regarding their traditional history was held to be unsatisfactory and inconclusive. Learned Counsel categorically canvassed that in the instant case, the plea of issue estoppel was specifically pleaded by the Respondents as a sword. He referred to paragraphs 27 to 29 of the Respondents’ Statement of Claim and paragraph 31 of their Reply to the Statement of Defence/Defence to the Counter-Claim of the Appellant. He relied on the cases of: (1) Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) p. 127 at p. 158, paras. D-H; and (2) Ladega v. Durosimi (Supra). He urged upon this Court to uphold the judgment of the trial Court especially on all the important point of estoppel and dismiss the Appellant’s appeal.

RESOLUTION OF ISSUE THREE
The questions posed for resolution under this head are, (i) Whether the defence of estoppel was pleaded with sufficient particulars by

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the Respondents in their Statement of Claim at the trial Court and (ii) Whether the said defence of estoppel would avail the Respondents at all?

In paragraph 29 of the Statement of Claim of the Respondents, it was categorically pleaded by the Respondents as plaintiffs as follows:
“29. The Plaintiffs shall contend at the trial of this case that by the pronouncements and findings of this Court in Suit No. HOD/6/77 and Suit No. HOD/115/2005, the Defendant is estopped from claiming ownership of the land in dispute either to himself personally or on behalf of his Nominone family of Ondo.”

Sequel to the above-reproduced paragraph 29, the details of the two judgments alleged to constitute estoppel were equally pleaded in paragraphs 25, 26, 27 and 28 of the Statement of Claim. Further in paragraph 31 of the Respondents’ defence to the Appellant’s Counter-Claim, the particulars of the estoppel were specifically pleaded – see pages 5, 6 and 122 of the record of appeal respectively. It is pertinent to bring to the fore the fact that, the Appellant clearly joined issues with the Respondents on the issue of estoppel when in paragraph

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15 of the Appellant’s Statement of Defence, he also pleaded as follows:
“15. The Defendant state further that neither Suit HOD/115/2005: Chief Fredrick Ikuyinminu & Anor v. Mr. Isaiah Ijisakin & 2 Ors nor HOD/6/77: Joseph Akindehin & Anor. v. Sylvester Falade & Anor. did not declare Nominone not a member of Oloka family and the two cases were not prosecuted in representative capacity as declared by the Court and particularly Suit No. HOD/115/2005 which was about different land and different location and not the land in dispute.”
See page 75 of the record of appeal.

It is therefore crystal clear “ex-facie” the pleadings of the Respondents that they would be relying, by way of issue estoppel, on the said two earlier judgments of the High Court of Ondo State, not the trial Court. The Appellant duly and clearly joined issues with the Respondents on this point, hence, the Appellant cannot be heard to state that he was either taken by surprise at the trial of the case or that he was misled in any way as to the case of the Respondents and the pleas of the said two earlier judgments as estoppel. What is

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more, the said judgments were duly tendered without the Appellant’s objection and admitted in evidence as exhibits at the trial Court. It is therefore my very strong opinion and I hold that, the submissions for the Appellant in paragraph 5.03 of his brief of argument that the issue estoppel was not specifically pleaded with particulars by the Respondents are totally unsupportable and misconceived.

​The second poser is whether or not the plea of estoppel is available to the Respondents in the circumstances of this case?
The principle of the plea of estoppel is applied in civil cases where the res (the subject-matter) in contention, the issues and parties in the new case are the same as in the earlier proceedings. Where any of the three conditions is missing in the new case, the plea will fail. The principle evolved in the public interest of the desirability of seeing an end to every litigation. Further, in the wider spectrum, the principle embraces not only issues upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but also to every issue which properly belong to the subject-matter of the

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litigation and which the parties exercising reasonable diligence might have brought forward in the earlier proceedings. See the cases of: (1) Yanaty Petrochemical Ltd. v. EFCC (2017) LPELR – 43473 (SC); (2) Gbemisola v. Bolarinwa & Anor. (2014) LPELR – 22463 (SC); (3) The Honda Place Ltd. v. Globe Motor Holdings (Nig.) Ltd. (2005) 14 NWLR (Pt. 945) p. 273; (4) Ebba v. Ogodo (2000) 10 NWLR (Pt. 675) p. 387; (5) Udo v. Obot (1989) LPELR – 3297 (SC) and (6) Aro v. Fabolude (1983) LPELR – 558 (SC). Hence for the plea of estoppel per res judicata to succeed, the party relying on it must plead and establish the following:
a. that the parties or their privies involved in both the previous and present proceedings are the same;
b. that the claims or issues in dispute in both proceedings are the same;
c. that the res judicata or the subject-matter of the litigation in the two cases is the same;
d. that the previous decision relied upon to support the plea is valid, subsisting and final; and
e. that the Court which gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.

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See also the cases of: (1) Yoye v. Olubode (1974) 1 All NLR (Pt. 2) p. 118; and (2) Fadiora v. Gbadebo (1978) 3 (SC) p. 219.
Furthermore, it is a general principle of law that, a plea of estoppel per res judicata is a shield rather than a sword and is accordingly not available to a Plaintiff in his Statement of Claim, as, if allowed this would in reality amount to the Plaintiff impugning the jurisdiction of the Court to entertain his suit, since a successful plea of res judicata means that the Court is without jurisdiction to hear the new matter. See the cases of: (1) Yoye v. Olubode (Supra); (2) Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) p. 561; (3) Ike v. Ugboaja (1993) 6 NWLR (Pt. 301) p. 539;(4) Ayuya & Ors. v. Yonrin & Ors. (2011) 10 NWLR (Pt. 1254) p. 135; (5) Tukur v. U.B.A. & Ors. (2013) 4 NWLR (Pt. 1343) p. 90; (6) Onwu & Ors. v. Nka & Ors. (1996) 7 NWLR (Pt. 458) p. 1 and (7) Chukwuma v. Ifeloye (2008) 18 NWLR (Pt. 1118) p. 204. However, the law is equally well settled that, a Plaintiff in an action for declaration of title, as in the instant matter, may plead and rely on a previous judgment in his favour not as res judicata but

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simply as an estoppel, in the sense that it constitutes a relevant fact to the issue in the present action and the judgment will be conclusive of the facts which it had already decided- see the cases of: (1) Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) p. 127; (2) Esan v. Olowa (1974) 3 SC p. 125; (3) Adogan & Anor. v. Aina (1964) LPELR – 25179 (SC); (4) Igwego & Ors. v. Ezeugo & Anor. (1992) LPELR – 1458 (SC) and (5) Achiakpa & Anor v. Nduka & Ors. (2001) 14 NWLR (Pt. 734) p. 623.
In the instant case, as I earlier on in this judgment stated and indeed reproduced, the Respondents pleaded the said two judgments as constituting estoppel in paragraph 29 of their Statement of Claim. The Appellant in paragraph 15 of his Statement of Defence joined issues with the Respondents, on this subject. The learned trial Judge had a good grasp of the subject of paragraph 29 of the Respondents’ Statement of Claim as being that of a plea of estoppel when he stated in his judgment at page 188 of the record of appeal that:
“The question that beckons for an answer is whether, as claimed by the Claimants by their oral testimony and

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the 2 (Sic) suits pleaded and relied upon, the defendants are estopped as claimed.”
The learned trial Judge went further in his said judgment contained at pages 193 to 196 of the record of appeal to discuss lucidly the principles of law governing the pleas of estoppel and res judicata. Specifically at pages 195 to 196 of the record of appeal, the learned trial Judge stated thus:
“The plea of res judicata is a shield rather than a sword. Accordingly, it is not available to a Plaintiff in his Statement of Claim…
However, a Plaintiff may rely on a previous judgment in his favour not as res judicata but simply as an estoppel, (as in the present action), in the sense that it constitutes a relevant fact to the issue in the present action and that the judgment will be conclusive of the facts which it decided.”
I am at one with the trial Court that the two previous judgments were adequately and precisely pleaded by the Respondents as constituting estoppel, as clearly worded in paragraph 29 of their Statement of Claim. What this simply means is that, where a party pleads a judgment as estoppel, he is asking that the Court should

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take the judgment into consideration in conceiving the totality of the evidence in the present case.
Now on whether the five laid down conditions for a successful plea of estoppel per res judicata were met by the Respondents, it would appear that, the Appellant is not contesting conditions (d) and (e). The trial Court held and I agree that:
“It is on record and uncontroverted, that Exhibits P1 and P2 have not been upturned or reversed on appeal. In effect, they remain a (Sic) valid and subsisting judgment (Sic) of a Court (Sic) of competent jurisdiction.”
What is more, the Appellant has not, either specifically or impliedly contended these two conditions. Rather, his contest has to do with conditions (a), (b) and (c). That is, it has been contended for him that, the parties, the claim or issue and the res judicata or subject-matter of the litigations in the previous decision are not the same in the present matter. In my very firm view, the trial Court upon consideration of the two previous judgments along with the cases presented by the two parties before it came to proper conclusions. This is in accord with my personal scrutiny of

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the said two previous judgments alongside the parties’ claim, counter-claim and the evidence proffered in support of same respectively by them.
In respect of Suit No. HOD/6/77, Exhibit P2, the Plaintiffs in the said Exhibit P2, the Appellant’s Father and Aunt were members of the Appellant’s Nominone family. While the Defendants therein were members of Alewi Odole Fadeni branch of the Respondents’ Oloka family. The claims in and subject-matter of the said suit had to do with declaration of title to a parcel of farmland being a smaller portion of the larger Ugboje land, situate and lying at Likokojia Agbabu road in Ondo. According to the claim and counter-claim of the respective parties herein, the present action is inter alia for declaration of title to the entire Ugboje land, a part of the conglomerate of lands belonging to the Oloka family.
​Regarding Suit No. HOD/115/2005, Exhibit P1, examination of same reveals that, the 1st Plaintiff therein is the Appellant herein. In Exhibit P1, the Appellant and another sued on behalf of Oka community and not Oloka family as now being touted by the Appellant. The defendants in that suit

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were members of the Ijisakin family, a branch of the Respondents’ Oloka family. The subject-matter of the suit is known as Waowao, part of the Oloka conglomerate of lands. Waowao land was established and held to be in possession and control of Ijisakin branch of the Oloka family.
It has been argued for the Appellant, albeit faultily, that one of the reasons the plea of estoppel will not avail the Respondents is because the Defendants in Exhibit P2 were not sued in a representative capacity, that is, as representatives of Oloka family. This argument is not legally sound. The law is settled that, failure to express specifically the capacity in which a party had sued or was sued will not invalidate the fact that a party has actually prosecuted or defended, as the case may be, an action in a representative capacity. In the case of: Kyari v. Alkali &Ors. (2001) LPELR – 1728 (SC), Iguh, J.S.C. (Rtd.) had the following to say on this state of the law:
“Where, therefore, an action is brought in a representative capacity, failure to express that fact on the writ of summons does not ipso facto invalidate the proceedings and an appellate

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Court may on its own motion amend the title to the proceedings in order to show clearly the capacity in which a party has sued or is sued provided the pleadings and the evidence conclusively show that the action is prosecuted or defended in a representative capacity.”
See also the cases of: (1) NTA & Ors. v. Anigbo & Anor. (1972) LPELR – 2069 (SC); (2) Oseni & Ors. v. Dawodu & Ors. (1994) LPELR – 2795 (SC) and (3) S.P.D.C. (Nig.) Ltd. v. Edamkue & Ors. (2009) 14 NWLR (Pt. 1160) p. 1.
It is my very firm opinion and I hold that there is no question, no doubt, that the contests in both Exhibits P1 and P2 respectively were between the Ijisakin and Alewi Odole Fadeni branches of the Respondents’ Oloka family on the one part and Appellant’s Nominone family on the other part. The pleadings and evidence conclusively show these facts.
​Consequent upon the foregoing elucidation, it is evident that the Respondents were entitled to plead Exhibits P1 and P2 as constituting estoppel against the Appellant in the action, the subject of this appeal. This issue is therefore resolved against the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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ISSUES ONE, TWO AND FOUR
“1. Whether or not the Respondents have proved with certainty and precision the identity of the land in dispute to warrant the declaration of title granted in their favour by the lower Court?
2. Whether or not the Respondents have discharged the evidential burden of proof required in law to entitle them to declaration of title over the land in dispute by the trial Court?
4. Whether or not the trial Court did not place unnecessary evidential burden on the Appellant in establishing his family membership of the Oloka family?”

SUMMARY OF THE SUBMISSIONS OF THE APPELLANT’S COUNSEL
The learned counsel reiterated the general principle of law governing the claim of title to land as trite. A Claimant, in the shoes of the Respondents herein, to succeed in an action for declaration of title to land, bears the onus of proof to establish by cogent and compellable evidence, the precise identity of the area of land to which his claim relates. He must as well describe with a very certain degree of accuracy and aptitude the identity of the area of land in respect of which he seeks title and there must not be

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any doubt in this respect. It is also trite that the mere mentioning of the area is not enough, rather, the description, features and extent of the boundaries of the land in dispute must be proved with exactitude. On this legal principle, he referred to the cases of: (1) Odiche v. Chibogwu (1994) 7-8 SCNJ p. 317 at pgs. 324-325; and (2) Atanda v. Iliasu (2012) 214 LRCN p. 220 at pgs. 225-226. However, in the instant case, the Respondents failed to tender the disputed survey plan in the earlier suits relied upon by them. The trial Court was therefore in error to have granted them the declaration of title and an order of perpetual injunction over the undefined parcel of land in dispute. The omission to state the boundaries of the land being claimed in the endorsement of the reliefs claimed in Paragraph 33 of the Statement of Claim of the Respondents was fatal to their case. What is more, the law is settled that for an order of perpetual injunction to operate, a claimant must properly and unmistakably identify the land in dispute, for an order of injunction cannot certainly be granted in respect of an undefined or unascertainable area of land. Where a Claimant

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fails to proof the boundaries of the land he asserts to be in dispute or did not satisfactorily describe the dimension and locality or where the description given contradicts the plan, the proper order to make is one of dismissal of the claim. For it is not the duty of Court to demarcate boundaries for parties. He relied on the cases of: (1) Ikyereve v. Ihyambe (2001) FWR (Pt. 31) p. 2881 at p. 2883; (2) Odunze v. Nwosu (2008) 154 LRCN p. 110 at pgs. 118-119;(3) Addah & Ors. v. Ubandawaki (2015) 241 LRCN p. 1 at p. 10 and (4) Baruwa v. Ogunshola (1938) 4 WACA p. 159.

It was further submitted for the Appellant that the law is trite that a Claimant who asserts to be entitled to a relief has the onus of establishing his case.

Furthermore, in an action for declaration of title to land, the Court must be fully satisfied first as to the precise nature of the title in respect of which a declaration is sought and secondly there must be adduced evidence of the claimant which the Court is satisfied with that a title of the nature claimed has been established. He referred to the cases of: (1) Awomuti v. Alhaji Salami & Ors. (1978) 3 SC p. 105 at p. 113;

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(2) Emegwara v. Nwaimo (1953) 14 WACA p. 347 and (3) Addah & Ors. v. Ubandawaki (Supra) at p. 35. In the instant matter, the Respondents’ claim is for declaration of statutory right of title over the land in dispute on the basis of the judgment in Suit No. HOD/6/77, Exhibit P2. Scanning through the pleading of the Respondents and evidence led in support at pages 3, 16, 117 and 128 respectively of the record of appeal, there is nowhere the Respondents asserted their ownership of the land in dispute other than the fact that they claimed in a general term to be members of the Oloka family.

​Contrariwise, the Appellant had traced his lineage to the Oloka family through AKINMUSEWE who was one of the children of ADESIMIREWA, the original founder of the land in dispute. It is striking that at page 130 of the record in paragraph 19(i)&(ii) of their reply to the statement of defence/counter-claim of the Appellant, the Respondents admitted that AKINMUSEWE is a stock of the Oloka family. Sequel to this, the Appellant in paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 25 and 26 of his counter-claim claimed ownership of the land through the same

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Akinmusewe by inheritance and led evidence in support of this claim through two of his witnesses.

​Most importantly, it is not in dispute that the Appellant is in exclusive possession of the land claimed by him. The Respondents by their evidence failed to explain to the trial Court why the 3rd Respondent could not give any information of and account for the alleged forceful occupation of the land in dispute by the Appellant for a period of about thirty years prior to the filing of their instant action. They failed to state why the Respondents did not take any step to protect their so-called interest in the said Oloka family land. On the contrary and in support of the Appellant’s case, the Respondents clearly by evidence admitted that the Appellant is a co-descendant with them of ADESIMIREWA and therefore a member of the Oloka family. The trial Court was therefore wrong and placed unnecessary evidential burden on the Appellant when it held, inter alia, firstly that the Appellant did not plead the other children of the late ADESIMIREWA, apart from Pa Akinmusewe, the great-grandfather of his father, Nominone Akindehin and secondly that he failed to

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call any other family member from his lineage to corroborate his genealogical history. He urged upon this Court to resolve issues one, two and four in favour of the Appellant.

SUMMARY OF THE SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The learned counsel argued that, the Respondents, in fulfillment of the legion of judicial authorities of the five ways of establishing title or ownership of land, relied strongly on traditional evidence. The Respondents pleaded and gave cogent and reliable evidence of who found the land, how it was found and how the land devolved on him, stating the particulars of intervening owners through whom they are claiming the land, as laid down in the cases of: (1) Akoledowo v. Ojubutu (2012) 16 NWLR (Pt. 1325) p. 1 and (2) Eze v. Atasie (2000) 10 NWLR (Pt. 676) p. 470.

The law is settled that, to establish traditional history of land relied on as root of title, a Plaintiff must plead the names of the founder and those after him upon whom the land devolved to the last successor(s) and lead evidence in support without leaving gaps or creating mysterious or embarrassing linkages which have not been and cannot be

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explained. In other words, the pleading of the devolution and the evidence in support must be reliable and credible, otherwise the claim for title will fail. He contended that, even though the Appellant also traced his entitlement to traditional history to one of the ancestors of the Respondents, the trial Court on the balance of probabilities believed more the traditional evidence presented by the Respondents as against what was presented by the Appellant.

The counsel opposed the submissions of the Appellant to the effect that the Respondents have not proved with certainty and precision the identity of the land in dispute to warrant a declaration of title granted in their favour by the trial Court. He conceded that a Plaintiff seeking declaration of title to land has a cardinal duty to show with certainty the area of land being claimed, for failure to do so makes his or her claim to be at risk of being dismissed. However, he held that the law is trite that by the decisions in the cases of: (1)Usung v. Nyong (2010) 2 NWLR (Pt. 1177) p. 83 at p. 112 paras. A-B; (2) Oshodi v. Eyifunmi (2000) 7 SC (Pt.2) p. 145, when there is a proper identification of the

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disputed land via the evidence put forward or admitted by the Court and where the land in dispute is known to both parties or is clearly ascertainable whether from the averments in the pleadings or otherwise and its area, exact location and precise boundaries on the ground are either unmistakingly and appropriately pleaded or are admitted or acknowledged by the Defendant, the non-production in evidence of survey plan of such land cannot be a matter of great moment and would not dis-entitle the Plaintiff from maintaining an action in respect of title, trespass or injunction over such land. He opined that in the instant case, both the Appellant and Respondents know the land in dispute as the land at Ugboje, along Ore/Ondo road in Ondo and a description of the land in dispute with the boundaries was specifically supplied in the parties’ pleadings. Evidence in this regard was also given at the trial Court by both the Appellant and the Respondents. The burden of proof of the identity of the land in dispute therefore did not arise in this case as parties are at addendum with regard to the identity of the land in dispute. Hence, production of a survey plan was

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not a requirement, as the pleadings and evidence on record settled for the identification of the land in dispute. He urged upon this Court to resolve issues one, two and four against the Appellant.

RESOLUTION OF ISSUES ONE, TWO AND FOUR
The question that calls for determination under the first prong of this head is, whether at trial the Respondents proved with certainty and precision the identity of the parcel of land to which their claim relate?
The law is fundamentally sacrosanct that, in an action for declaration of title to land and/or injunction pursuant to claim for damages consequent upon trespass, the onus is on the Plaintiff to establish the identity of the land he is claiming precisely, positively and without any ambiguity. Where he thus fails to give the exact extent and identity of the land he seeks declaration on, his action will be dismissed. Amongst a host of judicial authorities on the age-long legal principle, see the cases of: (1) Akinterinwa & Anor. v. Oladunjoye (2000) 6 NWLR (Pt. 659) p. 92; (2) Ezukwu v. Ukachukwu & Anor. (2004) 17 NWLR (Pt. 902) p. 227; (3) Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) p. 282; (4)

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Ekpemupolo & Ors. v. Edremoda & Ors. (2009) 8 NWLR (Pt. 1142) p. 166 and (5) Otanma v. Youdubagha (2006) 2 NWLR (Pt. 964) p. 337. The law is equally trite that, where the identity of the land is not in issue, in the sense that parties know exactly the identity of the land, the subject-matter of the dispute between them, the requirement that the parties and/or Plaintiff prove(s) the identity of the land ceases to be a necessity. See the cases of: (1) Okonkwo v. Adigwu (1985) 1 NWLR (Pt. 4) p. 694; (2) Mbaeri v. Alade (1987) 2 NWLR (Pt. 55) p. 101; (3) Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) p. 352 and (4) Atanda v. Iliasu (2013) 6 NWLR (Pt. 1351) p. 529.
The Respondents in paragraph 30 of their Statement of Claim specifically pleaded the extent and boundaries of the land in dispute. For clarity, the said paragraph 30 at pages 6 to 7 of the record of appeal is hereunder reproduced as follows:
“30. Plaintiffs aver that the land now in dispute is on both right and left side of Ondo/Ore road, Ondo and bounded as follows:
a. The right side of the land when going to Ore from Ondo is bounded as follows:
– In front by Ondo/Ore or

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Ondo/Ore/Agbabu road,
– Right side by Oluyole stock of the Plaintiff’s family.
– Left side by Odowo road junction/Logaara Bus Stop.
– At the back by Odowo village.
b. The left side of the land when going to Ore from Ondo is bounded as follows:
– In front by Ondo/Ore or Ondo/Ore/Agbabu road.
– Left by Itamope village.
– Right by Pedeco junction.
– At the back by Opopo village.”
Further in paragraph 16 of the Statement of Claim, the Respondents pleaded that:
“16. The larger expanse of land settled upon by the Plaintiffs’ ancestors, namely Adesimirewa and Lupona extend to Ugboje (location of the land in dispute herein), Asantan Oloka, Asantan Fasan, Okegun, Okeloro, Waowao and Oka-Oko among others. Adesimirewa and Lupona both came from Ile-Ife to settle on the land. They got married and begat children who all joined them in cultivating the land by farming various cash and food crops thereon.”
See pages 4, 6 and 7 of the record of appeal.
In direct response to the above, the Appellant in paragraph 11 of his Counter-Claim, stated the boundaries of the farmland in dispute in

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the following words:
”11. The defendant counter-claimant, being the only surviving son of Pa Ikuyinminu Akindeyin inherited all these crops and the land in dispute from his late father. The boundaries of the farmland is as follows:
On the 1st side by Chief Alewi Fadeni farmland.
On the 2nd side by Lomu village Oka.
On the 3rd side along Oka/Ore is bounded by Luyole farmland.
On the 4th side by Lijofi Akindipe farmland.”
Furthermore, under relief (a) of the reliefs sought in his counter-claim, the Appellant specifically counter-claimed as follows:
“WHEREOF the Defendant counter-claimant, counter claim against the Claimants as follows:
a. A Court declaration that the Defendant/counter claimant and members of his family are the owner of the land in dispute at Ugboje Oloka family land, his progenitors as a member of Oloka family having settled on the same, since before without any disturbance from any quarters are person entitled to the grant of customary right of title over the land in dispute.”
The above referred and reproduced specific pleadings of the Respondents as well as the Appellant

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pointedly speak for themselves. The even tenor of the parties’ pleadings is that, the land in dispute is Ugboje, one of the conglomerate of Oloka family lands.
It is also trite law that the identity of land in dispute will be held to be in issue, if, and only if, a Defendant in his statement of defence made it as such, that is, if he disputed specifically either the area or the size or the location or the features pleaded by the Plaintiff. When such is the case, then the identity of the land becomes an issue. In the instant matter, that is not the case, the Appellant did not specifically dispute the identity of the land to which the Respondents sought declaration of title in any specified material details.
​Moreover, the law is also trite that where the identity of land is not clear to a Defendant, he could or should apply for the particulars of same. The Appellant did not employ this legally permissible procedure opened to him at trial. Rather, the Appellant in his relief (a) specifically stated that the land in dispute is located in Ugboje and that the land is Oloka family land. The contention for identity of the land in dispute only surfaced

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for the first time in the Appellant’s Counsel’s written address at the trial Court. The law is trite that submissions of counsel can neither take the place of pleadings nor evidence. In regard to the contention, the trial Court held that the parties knew the disputed land as they had adequately described same in their respective pleadings – see page 184 of the record of appeal. The Appellant indeed through the three witnesses fielded by him, including himself, led evidence to the effect that, the land in dispute is at Ugboje, this was during the cross-examination of the said three witnesses – see pages 149, 150 and 154 of the record of appeal.
​I agree with the findings of the trial Court in this respect as same is clearly borne out of the cases presented by the parties before it at trial. In the circumstances, the Appellant cannot be heard to contend that the identity of the land in dispute is uncertain thereby requiring the Respondents to establish same. I am of the firm view and hold that, the parties in this matter knew and yet know the exact identity of the land, the subject-matter of the dispute between them. This prong of the

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instant head must be and is hereby resolved against the Appellant.

The second prong of this head is the resolution of the poser, whether the Respondents proved their case to justify the judgment of the trial Court in their favour? That is, whether the Respondents were entitled to a declaration of title to the land in dispute between the parties as held by the trial Court or whether the Appellant in the same vein proved his proposed counter-claim as required of him in law?

​The law is well settled beyond any equivocation that, title to land can be established by any one of the following five methods, viz: (a) by traditional evidence; (b) by production of document of title, which are duly authenticated; (c) by acts of selling, leasing, renting out all or part of the land, or farming on it, or on a portion of it; (d) by acts of long possession and enjoyment of the land; and (e) by proof of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. To mention just a few of the plethora of judicial authorities on this age-long legal principle,

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see the cases of: (1) Idundun v. Okumagba (1976) 9-10 SC p. 227; (2) Nkado v. Obiano (1997) 5 NWLR (Pt. 503) p. 31; (3) Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) p. 628; (4) Madu v. Madu (2008) 6 NWLR (Pt. 1083) p. 296; (5) Ayanwale v. Odusami (2011) 18 NWLR (Pt. 1278) p. 328 and (6) Atanda v. Iliasu (Supra). It is quite obvious in the instant case that the Respondents have employed the first method that is, traditional evidence, in their bid to establish their claim of title to the land in dispute. It is trite that, a party who seeks for a declaration of title to land and relies on traditional evidence or history as proof of his root of title, as in the instant case, must succinctly plead and bears the burden of proof to adduce to the satisfaction of the Court cogent and credible evidence of who found the land, how the founder found the land and the particulars of the intervening owners through whom he is claiming. See the cases of: (1) Akinloye v. Eyiyola (1968) NMLR p. 92; (2) Adejumo v Ayantegbe (1989) 3 NWLR (Pt. 110) p. 417; (3) Anyanwu v. Mbara & Anor. (1992) LPELR – 516 (SC) and (4) Anyafulu & Ors. v. Meka & Ors. (2014) 7 NWLR (Pt.

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1406) p. 396.

What is more, it is also well settled in law that, in claims for declaratory reliefs, including land matters, the Plaintiff is strictly required to plead and prove his claims on the evidence adduced by him without relying on the evidence called by the Defendant, even where the evidence of the latter supports his claim. This statement of the law has long been laid down by the Apex Court and followed by this Court in innumerable judicial authorities. In the case of:Bello v. Eweka (1981) LPELR- 765, the Supreme Court per Obaseki, J.S.C. (of blessed memory) captured the legal position as follows:
“It is true as was contended before us by the Appellant’s Counsel that the Rules of Court and Evidence relieve a party of the need to prove what is admitted, but where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleadings of the Defendant that he is entitled. The necessity for this arises from the fact that the Court has a discretion to grant or refuse the declaration and the success of a claimant

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in such an action depends entirely on the strength of his own case and not on the weakness of the defence. See Kodilinye v. Mbanefo Odu 2 WACA 336 at 337. In that case, i.e. Kodilinye v. Mbanefo Odu … Webber, C.J., Sierra Leone, delivering the judgment of the Court said: “The onus lies on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title.” See also Akinola & Ors. v. Oluwo & 2 Ors. (1962) WNLR 135.”
See further the cases of: (1) Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) p. 361; (2) Addah & Ors. v. Ubandawaki (2015) LPELR–24266 (SC); (3) Emenike v. P.D.P. (2012) LPELR-7802 (SC) @ 27 D-G and (4) Akinbade & Anor. v. Babatunde & Ors. (2017) LPELR-43463 (SC).
​From the above stated positions of the law, the legal burden on the Respondents herein to adduce cogent and credible evidence in proof of the case set up in their pleadings is therefore heavy, exceeding the general evidential burden of proof in civil cases on a person who asserts the affirmative under Sections 135 to 137 of the Evidence Act, 2011. Sections 135 (1), 136 and 137

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provide as follows:
“135(1): Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
136: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
137(1): In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”
By the above provisions therefore, it is the requirement of the law that, he who asserts a fact must prove the fact. Hence, in all civil matters, generally, proof rests squarely on the person who approaches the Court seeking that his legal right which he claims from another should be restored to him.
​This appeal is therefore a call on the Respondents to justify their entitlement to the judgment entered in their favour by the trial Court. In other words, did they plead the unbroken chain of their acclaimed root of title from

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inception to themselves? Did they adduce cogent and credible evidence to the satisfaction of the trial Court in proof of their pleading? Before proceeding to the determination of the above posers, it is pertinent to state that, although the burden of proof is heavy on the plaintiff in declaratory claims, including land matters and others, the standard of proof is still on the preponderance of the evidence adduced by the parties in the particular action. Although I will come to the full consideration of this point later, suffice it to state that this is a direct answer to the question posed by the Appellant in his issue number four, also taken along under this head. The question is whether unnecessary evidential burden was placed on the Appellant to prove that he is a member of Oloka family as to entitle him to the land in dispute, especially in establishing his counter-claim. The trial Court after its consideration of the cases presented before it by the parties, found at pages 199 to 201 of the record of appeal that:
“Both parties in this suit structure their root of title to the disputed land, as descendants of “Adesimirewa” and

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therefore claim to be members of Oloka family, the title owners of Oloka land. …
I have earlier on referred to the counter claim of the defendant in this suit. As earlier stated in this judgment, the same standard of proof is required in proof of a party’s counter claim.”
I am at one with the above reproduced position of the trial Court on evidential burden and standard of proof in counter-claims or cross-actions. It is elementary law that a cross-action or counter-claim is an independent action by itself. Way back to over half a century ago, the Supreme Court per Bairamian, JSC (of blessed memory) had the following to say on this topic, in the case of: Oyegbola v. Esso West Africa Inc. (1966) 1 ALL NLR p. 162:
“A counter claim, to quote from Halsbury’s Laws of England (3rd ed.) Vol. 34, p. 395, para. 671, is – “A weapon of offence which enables a Defendant to enforce a claim against the Plaintiff as effectually as in an independent action.” Instead of suing separately, the Defendant may insert his claim into the Plaintiff’s suit under the label of counterclaim if it is of a kind which by law he

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is entitled to raise and have disposed of in the Plaintiff’s suit.”
Further and later in the case of: Orianwo v. Okene (2002) 14 NWLR (Pt. 786) p. 156, the Apex Court per Ogundare, JSC (of blessed memory) also held that:
“I think the law is clear, where there is an action and a cross-action and Plaintiff in the main action fails; it does not necessarily follow that the cross-action succeeds unless findings are made in favour of the Plaintiff in the cross-action entitling him to succeed – see Amadi & Co. v. Ohuru & Ors. (1978) 6-7 SC 217; (1978) 11 NSCC 436. This is so because the cross-action is an independent action by itself and Plaintiff therein can only succeed on the strength of his case and not on the weakness of the defence.”
The above stated legal position means that, in the counter-claim of a Defendant though embedded in the main claim of a Plaintiff, as in the instant matter, the Defendant becomes a Plaintiff in the counter-claim and bears the same burden and standard of proof, as the Plaintiff in the main action, to establish his counter-claim – see also the cases of:

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(1) Olubodun & Ors. v. Lawal & Anor. (2008) LPELR-2609 (SC) and (2) Oroja & Ors. v. Adeniyi & Ors. (2017) LPELR-41985 (SC). This legal principle was more explicitly and succinctly stated in the case of: Olaniyan & Ors. v. Fatoki (2013) 17 NWLR (Pt. 1384) p. 477 per Muhammad, JSC (as he then was, now CJN) as follows:
“A Plaintiff who claims damages for trespass as well as injunction regarding the land in dispute puts his title in issue. He succeeds on proving that he has a better title to the land than the Defendant. The principle is all the more extant in the instant case where the appellants also counter-claim the land in dispute. In establishing his title, either party may avail himself of any of the five ways of doing so and succeeds on the strength of his case rather than the weakness of the case of the adversary. See Ayoola v. Odofin (1984) 11 SC 120; Nkado v. Obiano (1997) 5 NWLR (Part 503) 31 at 34 and Ewo v. Ani (2004) 17 NSCQR 36.”
It is quite patent on the record of appeal that, what the trial Court simply and rightly too did in determining who had better title, was to place the same burden and standard of proof on both parties

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since they have respectively put title in issue when they especially claimed to have derived their respective title from a common source and relied on virtually the same factual circumstances. In the given setting, the answer to the contention is that, the trial Court was not in error in its proposition on the nature of the burden and standard of proof required of the Appellant in this case.

Now, in determining whether or not the Respondents justified their entitlement to the judgment of the trial Court entered in their favour, as stated earlier in this judgment, their pleadings and evidence adduced by them must be scrutinized. As equally stated previously in this judgment, both parties in the bid to establish their respective title to the land in dispute have employed the method of proof by traditional evidence or history. The law has long been settled that, a party who relies on evidence of proof of his title to land has the legally bounden duty to plead and prove the following by cogent and credible evidence:
i. Who found the land;
ii. How the founder found the land; and
iii. The particulars of the intervening owners through whom he claims.

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See the cases of: (1) Onwugbufor v. Okoye (1996) LPELR-2716 (SC); (2) Elegushi v. Oseni (2005) LPELR-1111 (SC) and (3) Echefu & Ors. v. Emenike & Anor. (2018) LPELR-43682 (CA).

At this juncture, it is incumbent to state that, having found as earlier stated in this judgment that the two previous judgments Exhibits P1 and P2 operate as estoppel in favour of the Respondents, it follows as legally permissible, that the findings in the said two earlier suits could be properly taken into consideration in the determination of the instant case, as the trial Court had correctly done. What is more, the two decisions having not been upturned on appeal, remain valid. The law is trite that, where there is no appeal against a finding of facts or order of a Court, such a finding or order remains inviolate, valid and binds the parties to the suit, as well as their privies. A party will therefore not be heard to further contend on a particular finding of the trial Court against which he has not successfully appealed. See the cases of: (1) Ijale v. Leventis (1959) 4 FSC p. 108; (2) Awote & Ors. v. Owodunni & Anor. (1986) LPELR – 660 (SC);

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(3) Interdrill (Nig.) Ltd. & Anor. v. UBA Plc. (2017) LPELR-41907 (SC); (4) Biariko & Ors. v. Edeh-Ogwuile & Ors. (2001) LPELR-779 (SC) and (5) Odutola v. Oderinde (2004) 12 NWLR (Pt. 888) p. 574.

I have also found earlier in this judgment under my resolution of issue three that Exhibit P2 is a suit between the privies of the parties herein, that is, the Nominone family of the Appellant and Alewi Odole Fadeni family branch of the Respondents’ Oloka family. Indeed the 3rd Respondent is a grandson of Alewi Odole Fadeni. The suit Exhibit P2 was for declaration of title to a portion of land, part of the larger land known as Ugboje, the latter is the subject-matter of the instant case. While in Exhibit P1 the Appellant herein, sued as Plaintiff for declaration of title to a portion of land known as Waowao, a portion of the conglomerate of lands belonging to the Oloka family of the Respondents. The defendants in that suit Exhibit P1 were privies of the Respondents, being members of the Ijisakin branch of the Respondents’ Oloka family. The Ijisakin family is in custody and possession of Waowao land. I will come to the relevant details of

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the findings of facts in the two suits later on in this judgment.

​On the pleadings and evidence led, the Respondents traced their root of title to two brothers, Adesimirewa and Olupona under the style of Oloka family the original founders who settled on a conglomerate of many masses of lands known as the Oloka land. Amongst others, Adesimirewa begat Lisa Patako Falemara who begat Sasere Adi who begat Sunmola Fadeni the father of the 3rd Respondent. The 2nd and 4th Respondents are great-grandsons of Lupona, Adesimirewa’s brother and co-founder, with Adesimirewa, of the entire Oloka family land. While the 5th Respondent is a great-great-great-grandson of Adesimirewa. The 2nd Respondent is the incumbent Chairman of the Oloka family. At trial, to establish their claim, the Respondents fielded two witnesses, the 2nd and 3rd Respondents. Two of the documents tendered in evidence as exhibits are Exhibits P1 and P2, the previous judgments of the High Court of Ondo State, not the trial Court. The said two suits were for declaration of title to two separate masses of lands, part of the conglomerate of the Oloka family lands and between the parties herein

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and/or their privies. Exhibits DC2 though relied upon by the Respondents was tendered in evidence through DW1, one of the Appellant’s witnesses. The said Exhibit DC2 is the proceedings of Court in the suit Exhibit P1.

​According to the Respondents, the conglomerate of entire Oloka family lands remains unpartitioned albeit the components parts are under the control and in possessions of the many descendants or branches of the said original settlers, the Appellant is not one of such descendants. The conglomerate Oloka lands include the land known as Ugboje, the land in dispute and is in possession and control of the 3rd Respondent’s Alewi Odole Fadeni branch of the Oloka family. Some of the masses of lands within the conglomerate include and are located in: Okeogun in possession/control of Lisa Fasekomi branch, Okeloro in possession/control of Ogunbu branch, Waowaoin possession/control of Ijisakin branch and Okaoko in possession/control of AlliIjelu branch – see paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 15, 16, 17 and 18 of the Respondents’ statement of claim at pages 3 to 5 of the record of appeal. The above stated facts were

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maintained especially under cross-examination in the oral evidence of the two witnesses of the Respondents, that is the 2nd and 3rd Respondents who respectively gave evidence as PW1 and PW2.

On the other part, the Appellant also traced his own root of title vide his pleadings and evidence to Adesimirewa Agbajo. That Adesimirewa Agbajo was the only original Founder of the land in dispute and the entire Oka land. The Oloka family are descendants of Adesimirewa. Adesimirewa Agbajo begat, amongst others, Akinmusewe who begat Fasanoye Akindeyin, who begat Nominone Akindeyin, who begat Ikuyinminu Akindeyin, who begat the Appellant – see paragraphs 4, 7, 8, 9, 10, 11, 18, 20 and 26 of the Appellant’s statement of defence and counter-claim at pages 77, 78, 79, 80, 81 and 82 of the record of appeal. The Appellant fielded three witnesses including himself and gave evidence as DW3 – see pages 149, 150, 151, 152, 153 and 154 of the record of appeal.

​The trial Court duly examined Exhibits P1 and P2 along with the other exhibits tendered in evidence by the parties, which I have equally meticulously gone through and found upon hereinbefore.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

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The trial Court found and I agree that, in Exhibit P1, the Appellant was the 1st Plaintiff and sued on behalf of the entire Oka community which purportedly sold the Waowao land, the land in dispute to the 2nd Plaintiff therein. In that action, the Plaintiffs failed in their bid to be proclaimed the owners of Waowao land. Rather it was held therein that Waowao land is under the control and in possession of the Ijisakin branch of the Respondents’ Oloka family – see paragraph 18 of the Statement of Claim at page 5 of the record of appeal. This is the relevance of Exhibit P1, the Appellant and his co-plaintiff therein claimed that the Ijisakin family were mere caretakers of the Waowao land. However, the Ijisakin family was adjudged the owners of the said land and the purported sale of same to the 2nd Plaintiff therein was declared null and void. At page 20 of Exhibit P1, the said Court held explicitly as follows:
“It is clear from the evidence before me that the various families constituting the Oloka Chieftaincy family occupy distinct area of the Oloka land. It is clear that the Ijisakin family, the family of the defendants occupied

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Waowao area of the Oloka land. There is no evidence before me that the various families occupy their area as a tenant, caretaker or surrogate of the entire Oka community. There is evidence before me that the Ijisakin family as far back as 1969 had been putting tenants on the Waowao land. See Exhibits F and G1 – G2. The tenants were not put on the land on behalf of the Oka people. The preponderance of evidence is to the effect that the Ijisakin family occupy the Waowao area of the Oka land by virtue of the family been (Sic) a member of the founding family of Oka.”

​Exhibit P1 is certainly not one of the actions in which the Appellant barely claimed to have represented the Oloka family. What is more, although the Appellant agreed that Adesimirewa found the Waowao land amongst others, he did not trace his genealogy to the said founder, other than the bare assertion that he is one of his descendants. On the contrary, the Ijisakins traced their genealogy to Adesimirewa and Lupona, as put forward again in the Respondents’ present action – see the summary of evidence by the Court in Exhibit P1 in its page 6.

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Exhibit P2 was filed much earlier in time, indeed two years shy of three decades before the action Exhibit P1 was filed. The two Plaintiffs in Exhibit P2 were the late Father and Aunt of the Appellant and they were privies of the Appellant’s acclaimed Nominone family. The subject-matter of that action is a portion of the larger Ugboje land, the entire Ugboje land is the subject-matter of the instant case. The defendants in Exhibit P2 are the privies of the Respondents herein, that is, the Alewi Odole Fadeni branch of the Respondents’ Oloka family. The Court in Exhibit P2 preferred the evidence of the Defendants to the effect that, the Appellant’s Nominone family was only allowed to hunt and farm on a certain portion of Ugboje by Lisa Patako, one of the direct sons of Adesimirewa, the original founder of the entire conglomerate of Oloka lands. The land was neither sold nor disposed of to Nominone – see page 14 of Exhibit P2. At the time of the act in, the land was found to be in actual possession of the Defendants therein, that is, the privies of the Respondents herein – see page 17 of Exhibit P2. In dismissing the action of the Plaintiffs in its entirety

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the Court at page 19 of Exhibit P2 held as follows:
“In the instant case the Oloka family owns the land in dispute by settlement and have been in undisturbed possession for over seventy years. The head and principal member of this family sold the part verged yellow to the 1st Defendant and put him in possession. Later they executed deed of conveyance in his favour. 2nd Defendant is a principal member of Oloka family and executed the deed of conveyance – Exhibit 2 in favour of DW1 (1st Defendant).”

The effect of Exhibit P2 as rightly held by the trial Court therefore, in my firm view, is that the entire Ugboje land belongs to the Oloka family and is in control and possession of the Alewi Odole Fadeni branch of Oloka family, the ancestor of the 3rd Respondent. Clearly, the Nominone family, being tenants on a portion of the land, is thus not a branch of the Oloka family.

​One major grouse of the Appellant is that the trial Court did not properly evaluate the evidence of DW1, one of the three witnesses fielded by the Appellant. The question then is, what is the meaning of the phrase, “evaluation of evidence”? It

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generally simply means, weighing the evidence received in the context of the surrounding circumstances of a particular case. This entails, findings of facts based on the credibility of witnesses and findings of facts based on assessment of evidence so as to give value to it. This Court in the earlier case of: Saleh v. Hon. Minister of FCT (2016) LPELR-41581 per Mustapha, JCA comprehensively defined the legal phrase in the following words:
“Evaluation of evidence means the determination of the worth or value of the evidence by placing the evidence of the disputants side by side on an imaginary scale of justice to ascertain the side on which the quality of the evidence preponderates … It may also be referred to as the assessment of evidence for the purpose of giving it value or quality, and involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other, showing at the end, an indication of how the Court arrived at its conclusion of preferring one piece of evidence over the other.”

​The law is well-settled that the function of findings of facts

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based on the credibility of witnesses is the exclusive duty of the Court of trial. However, an appellate Court is in a good position, upon a proper complaint to interfere to re-assess evidence on the record and make its own findings where the findings of the lower Court were perverse or unreasonable. For where findings are perverse or unreasonable, they lead to a miscarriage of justice. A perverse finding of facts is that which is merely speculative, or completely outside the evidence before the lower Court or where the lower Court has drawn wrong inference from the evidence before it, thereby occasioning a miscarriage of justice. See the cases of: (1) Bello v. Eweka (1981) LPELR-765 (SC); (2) Mogaji v. Odofin & Ors. (1978) 1 LRCN p. 212; (3) Ayuya & Ors. v. Yonrin & Ors. (Supra); (4) Ndulue & Anor. v. Ojiakor & Ors. (2013) 8 NWLR (Pt. 1356) p. 311; (5) Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) p. 267; (6) Overseas Construction Company Nig. Ltd. v. Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (Pt. 13) p. 407 and (7) Iwuoha & Anor. v. Nipost Ltd. (2003) 8 NWLR (Pt. 822) p. 308.
The evidence of DW1, Joseph Akinola Akinkunmi, Lisa of

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Oka, was received by the trial Court. His statement on oath is contained in pages 95 to 98 and his oral testimony is contained in pages 149 to 150, all of the record of appeal. Upon the evaluation of the Appellant’s three witnesses, the trial Court in respect of DW1 came to the conclusion that, DW1 “deliberately shied away from speaking the truth and in the process exhibited his ignorance of the facts in issue” with particular reference to the evidence elicited from DW1 under cross-examination- see page 198 of the record of appeal. The first limb of the trial Court’s findings is to the effect that, DW1 was not a witness of truth, this borders on the credibility of DW1 and is within the exclusive prerogative of the trial Court that had the advantage of seeing, watching and observing a witness in the witness box. This is a well-settled principle of law and the Apex Court restated this position again in the case of: Ochiba v. State (2011) 17 NWLR (Pt. 1277) p. 663 as follows:
“Finally, the assessment of credibility of a witness is a matter within the province of the trial Court as it is only the Court that has the advantage of

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seeing, watching and observing the witness in the witness box. The Court also has the liberty and privilege of believing him and accepting his evidence in preference to the evidence adduced by the defence. On the issue of credibility of witnesses the appraisal of evidence and the confidence to be reposed in the testimony of any witness, an appellate Court cannot on the printed evidence usurp the essential function of the trial Court which saw, heard and watched the witnesses testify.”
See also the cases of: (1) Ajao & Ors. v. Alao & Ors. (1986) LPELR-285 (SC); (2) Adelumola v. The State (1988)1 NWLR (Pt.73) p. 683 and (3) Sani v. State (2017) LPELR-43475 (SC). In the instant case, this Court is thus devoid of the power to impugn the findings of the trial Court regarding the credibility of DW1. What is more, as can be gleaned from the printed record of appeal, the conclusion of the trial Court, that the evidence of DW1 did not advance the case of the Appellant is not in any way perverse having regard to the overall evidence of DW1 especially under cross-examination, his testimony in Exhibit DC2, a proceedings in Exhibit P1 and the entirety of

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the evidence adduced by both parties in the case.

Furthermore, it is my strong view that it should be rightly deemed that the Appellant has no complaint against the trial Court’s evaluation of the remaining evidence adduced by the parties, especially with my earlier order, inter alia, striking out ground three of the notice of appeal of the Appellant for incompetence. The trial Court, in my firm opinion rightly considered and made use of the findings in Exhibits P1 and P2, especially the latter. In addition, upon what I consider to be its proper evaluation of the evidence presented before it by the Respondents, the trial Court inter alia correctly found at page 201 of the record of appeal as follows:
“The claimants who have instituted this action for themselves and on behalf of the Oloka family have narrated with precision and clarity the continuous chain of devolution and family history of their family (Sic).”

​I agree with the above conclusion based on the elucidations made by me herein before in relation to the pleadings and oral evidence of the Respondents along with the documentary evidence Exhibits P1, P2 and DC2 relied

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upon by the Respondents. It is my firm view and I hold that the Respondents who relied on tradition history on their root of title to the land in dispute duly established the required legal ingredients, already set out above in this judgment, upon the preponderance of the entire evidence adduced by them and the Appellant before the trial Court. That is, without any equivocation, the Respondents established who found the said land, how the land was found by the founders and the particulars of the intervening owners through whom they have claimed. As correctly held by the trial Court, they are entitled to and have been rightly granted the declaration of title sought to the land in dispute, for themselves and on behalf of Oloka family of Oka, Ondo State. I equally hold that the Respondents are bonafide members of the said Oloka family.

Now on the issue of the legal burden of proof required of the Appellant who equally relied on traditional history in his bid to establish his counter-claim, as earlier stated by me in this judgment, the trial Court rightly held as follows:
“Where evidence of tradition is relied on in proof of title to land, it is

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settled that the claimant, to succeed is bound to plead and establish facts such as:
a. Who found the land;
b. How he founded the land, and (Sic)
c. Particulars of intervening owners through whom he claim the claims. See the case of AKOLEDOWO V. OJUBUTU (SUPRA)
In effect, have the claimants presented oral and documentary evidence, cogent, convincing and compelling before this Court (Sic) to grant judgment to them on their claims? Ditto (Sic), the same burden of proof lies on a defendant/counter-claimant. …
I have earlier on referred to the counter claim of the Defendant in this suit. As earlier stated in this judgment, the same standard of proof is required in proof of a party’s counter claim.” See pages 184 and 201 of the record of appeal.”
​The above holding of the trial Court is the correct position of the law. The complaint of the Appellant in ground seven of his amended notice of appeal from which issue four of his brief of argument was distilled is therefore misconstrued in law. Put in different words, the complaint of the Appellant, that unnecessary burden of proof was placed on him by the trial Court, is

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a legal fallacy in the circumstances of this case. Just like the Respondents, he has the same legal burden and standard of proof bestowed on him to establish to the satisfaction of the Court, his counter-claim which is a distinct action with all the tapestry of an action. See the cases of: (1) Ogbonna v. A.G. of Imo State & Ors. (1992) 1 NWLR (Pt. 220) p. 647; (2) Gowon v. Ike-Okongwu & Ors. (2003) 1 SC (Pt.III) p. 57; (3) Anwoyi & Ors. v. Shodeke & Ors. (2006) 13 NWLR (Pt. 996) p. 34; (4) Lokpobiri v. Ogola & Ors. (2015) LPELR-40838 (SC) and (5) Oroja & Ors. v. Adeniyi & Ors. (2017) LPELR-41985 (SC). In the case of: Anwoyi & Ors. v. Shodeke & Ors. (Supra), the Apex Court per Kalgo, JSC (Rtd.) succinctly captioned the point in these words:
“A counter-claim is by itself a substantive action which must be proved to the satisfaction of the Court for a counter-claimant to be entitled to judgment.”
In the instant case, the principal questions that called for determination in the Respondents’ claim are common to those in the counter-claim of the Appellant. The trial Court therefore properly considered

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them together in its judgment under scrutiny. See the cases of: (1) Aderounmu & Anor. v. Olowu (2000) 4 NWLR (Pt. 652) p. 253; (2) Nsefik (since dead) & Ors. v. Muna & Ors. (2013) LPELR-21862 (SC) and (3) Okam & Ors. v. Igwe & Anor. (2018) LPELR-43685 (CA).
After the evaluation of the evidence placed before it by the Appellant, the trial Court in dismissing the Appellant’s counter-claim inter alia held as follows:
“The Defendant failed to trace his own line in his pleadings to the Oloka family, the radical owners of the land with precision. He was unable to lead credible evidence worth mentioning…. From the above findings of this Court as highlighted above, the Defendant/counter-claimant has not established his counter claim.”
See pages 200 and 201 of the record of appeal.
The trial Court impeached the credibility of two very important witnesses of the Appellant’s three witnesses, that is, the evidence of PW3, the Appellant himself, and also that of PW1 – see page 198 of the record of appeal. The evaluation and ascription of probative value to adduced evidence as earlier on in this judgment

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elaborated upon, is the exclusive prerogative of the trial Court. This Court as an appellate Court cannot dabble into that arena. What is more, I equally do not find perverse the conclusion of the trial Court that the evidence presented before it by the Appellant was contradictory and not credible, as this is patently borne out of the preponderance of the entire evidence adduced by the two sets of parties. This is crystal clear on the record of appeal. I have equally elaborated on this earlier in this judgment. The trial Court rightly rejected the oral evidence adduced by the Appellant before it on the preponderance of the evidence adduced by both parties, especially after considering the said evidence along with the findings of facts contained in Exhibit P2 wherein the Appellant’s late father and aunt lost the action filed by them against some privies of the Respondents’ Oloka family. The subject-matter of that action is a portion of the larger Ugboje land. The entire Ugboje land is the subject-matter of the instant case. Ugboje land was declared to be one of the conglomerate of lands found by the ancestors of the Respondents’ Oloka family

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and Ugboje was held to be in custody and possession of the Alewi Odole Fadeni branch of the Oloka family. It was clearly further held in the said earlier case that, Nominone the grandfather of the Appellant was only permitted to farm on parts of Ugboje land by Lisa Patako the son of one of the original two settlers, Adesimirewa. Notwithstanding the claim of the Appellant that he is a great-great-great-grandson of Adesimirewa the original settler, the effect of the findings of Court in the said earlier suit Exhibit P2 is that, Nominone the Appellant’s grandfather being a tenant on the land could not be a member of the Oloka family. It is transparently revealed in the record of appeal that although the Appellant pleaded his genealogy as dating back to Adesimirewa, he failed woefully to discharge the onus on him to establish this root of title by credible, cogent and acceptable evidence at trial as required by law. In the case of: Awodi & Anor. v. Ajagbe (2014) LPELR-24219, the Apex Court per Fabiyi, JSC (Rtd.) restated the well-established position of the law as follows:
“… the law is now settled that where a person relies on

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traditional history as his root of title to land, the onus is on him to plead the root of title and the names and history of his ancestors. He should lead evidence to show same without leaving any yawning gap. A Court has no jurisdiction to supply any missing link in a genealogical tree from progenitors to a claimant. See Mogaji v. Cadbury (1985) 2 NWLR (Pt. 7) 393; Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386; Akinloye v. Eyiyola (1968) 2 NMLR 92; Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413 and Odi v. Iyala (2004) 4 SCNJ 35 at 54.”
The Appellant has traced his root of title to Adesimirewa down to his grandfather Nominone, a claim that had been vigorously and successfully challenged by the Respondents. The law places the burden on the Appellant to satisfy the Court on the validity of the title of Nominone from whom he claimed to have derived his title. See the cases of: (1) Mogaji v. Cadbury (Supra); (2) Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) p. 562 and (3) Adesanya v. Aderonmu & Ors. (2000) LPELR-145 (SC). The Appellant failed to discharge this burden of proof, for the substratum of his root of title in Nominone was completely shattered

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by the findings in Exhibit P2 wherein the claims of Nominone as a branch of Oloka family through Adesimirewa and consequently the ownership of Ugboje land were invalidated.

It is pertinent to advert to the simultaneous and rival claims of the two sets of parties in the instant matter that they are both in possession of the land in dispute. The law is well settled that where both parties, as in the present case, had claimed to be in possession of the land in dispute, the law ascribes lawful possession to the party with title or better title to the land- see the cases of: (1) Olowolagba & Ors. v. Bakare & Ors. (1998) 3 NWLR (Pt. 543) p. 528; (2) Aromire & Ors. v. Awoyemi (1972) LPELR-560 (SC); (3) Akinterinwa & Anor. v. Oladunjoye (2000) 6 NWLR (Pt. 659) p. 92 and (4) Apena & Anor. v. Aileru & Anor. (2014) LPELR-23305 (SC).

What is more, the law is equally trite that where a party’s root of title is pleaded, that root has to be established first before any consequential acts such as possession flowing therefrom can properly qualify as acts of ownership – see the cases of: (1) Fasoro & Anor. v. Beyioku & Ors. (1988) 2

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NWLR (Pt. 76) p. 263; (2) Ibenye & Ors. v. Agwu & Anor. (1998) 11 NWLR (Pt. 574) p. 372; (3) Ngene v. Igbo &Anor. (2000) LPELR-1987 (SC); (4) Adole v. Gwar (2008) LPELR-189 (SC) and (5) Orlu v. Gogo-Abite (2010) LPELR-276 (SC). It is abundantly vivid that the Appellant had failed to establish the traditional history relied on as his root of title. He therefore had no dominant possessory right as tenants over and above the Respondents on the portion of the land in dispute, even before the action of the Respondents the subject of this appeal was instituted against him.

​In conclusion, I hold that the evidence adduced at trial by the Appellant in his bid to establish his counter-claim fell short of the legally required standard to substantiate and establish his root of title to the land in dispute. The testimonies of the Appellant’s three witnesses especially DW1 and DW3 are identical. These were essentially tailored to mirror the Appellant’s pleadings and equally did not link the Nominone family, through whom the Appellant claimed to have derived his title, to the original settlers of Oloka family land, that is, Adesimirewa and Lupona.

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Under cross-examination, DW1 a Chief in Oka claimed he only knew the father of the Appellant but not any other member of the Nominone family even though he claimed Nominone was a member of Oloka family. He categorically stated that his statement on oath which he adopted at trial was not made by him but prepared by the Appellant’s Counsel. As I adverted to herein before, this was ostensibly to validate the averments in the statement of the defence and counter-claim of the Appellant. As found by the trial Court, it is curious that no member of the Nominone family, male or female, since the Appellant claimed to be the only surviving son of his father, was fielded as a witness to corroborate the claim of the Appellant as a component part of Oloka family and therefore entitled to the land in dispute. After all, his own father (although in one breath the Appellant flip floped about his father’s names) and aunt (he also said the woman might be his father’s sister) were co-plaintiffs in Exhibit P2. Worthy of note also is the documentary evidence adduced by the Appellant at trial, Exhibits D1, D3 and D4. I hold that none of these documents could be

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said to have advanced his case for declaration of title to the land in dispute, rather, the documents merely lend credence to the Appellant’s social status and activities in Oka town. The bottom-line is that, the Appellant failed to adduce cogent, credible and acceptable evidence in substantiation of his acclaimed traditional history of his root of title to the land in dispute as counter-claimed by him. The Appellant equally failed to establish that his grandfather Nominone, through whom he claimed to have derived title, was a descendant of Adesimirewa, the original co-founder and co-settler of the entire conglomerate of Oloka family lands, which includes, Ugboje, the land in dispute.

Concomitant to my foregoing elucidation under this head, comprising of the Appellant’s issues 1, 2 and 4 responded to under issue 2 in the Respondents’ brief of argument, it is obvious that the said three issues of the Appellant do not avail him. The three issues are therefore resolved against him.

​Before making my terminal pronouncements on the appeal, I consider it very pertinent to state at this juncture that this judgment delivered on the 25th of

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June, 2020 ought to have been delivered on the 14th of June, 2020. The slight delay in the said delivery was as a result of lockdowns by the Federal Government of Nigeria of interstate travels and the Courts in Nigeria including the Court of Appeal by the Chief Justice of Nigeria to enable safeguard the health of Judges/Justices and all citizens in the nation during this Covid-19 pandemic period.

The entirety of the Appellant’s four issues having been resolved against him, his appeal is doomed to fail. The appeal is therefore dismissed. Consequently, the judgment of the trial Court delivered on the 20th day of October, 2014 in Suit No. HOD/167/2012 is accordingly affirmed.

The Respondents are entitled to the costs of this appeal which I have assessed in the sum of Two Hundred Thousand Naira only (N200,000.00). I award same in their favour and against the Appellant.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had me privilege of reading the lead Judgment delivered by my learned brother, Oyebisi Folayemi Omoleye, JCA.

​The four (4) issues formulated by the learned counsel for the Appellant which are adopted by my noble lord in consideration

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and determination of this appeal are thoroughly dissected and resolved in the lead judgment. I am in tandem with the determination and resolutions of the issues.

​This appeal is unmeritorious which is bound to fail and it fails. The appeal is dismissed. The judgment of the trial High Court of Ondo State holden at Ondo Judicial Division delivered by Akintan Osadebay (3) on the 20th October, 2014 in Suit No HOD/161/2012 is therefore affirmed.
I abide by the order as to costs of N200,000.00 In favour of the Respondents against the Appellant herein.

PATRICIA AJUMA MAHMOUD, J.C.A.: I had the benefit of reading in draft the judgment of my learned brother, OYEBISI F. OMOLEYE, JCA just delivered. His Lordship has painstakingly considered and resolved all the pertinent issues raised for determination in this appeal.

The record shows clearly that the trial judge was alive to his responsibility not only in his appreciation of the law but also in dutifully evaluating all the evidence before him. Like my learned brother in the lead judgment, I see no reason to disturb the findings of the trial judge.

​I agree with his Lordship that this appeal is

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completely devoid of merit and should be dismissed. It is accordingly also dismissed by me.
I endorse all the consequential orders including that as to costs.

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Appearances:

Mr. H. I. Akingbesote holding the brief of Prince A. F. Adejayan For Appellant(s)

The Respondents and their Counsel were absent For Respondent(s)