LAFARGE CEMENT WAPCO NIGERIA PLC v. ENGINEER LATEEF ISHOLA OWOLABI (2014)

LAFARGE CEMENT WAPCO NIGERIA PLC v. ENGINEER LATEEF ISHOLA OWOLABI

(2014)LCN/7459(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of November, 2014

CA/I/210/2012

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES FOR DETERMINATION MUST BE BASED ON ONE OR MORE GROUNDS OF APPEAL AND WHETHER A GROUND OF APPEAL IS DEEMED AS ABANDONED IF NO ISSUE WAS FORMULATED OUT OF IT BY THE APPELLANT

An issue for determination in an appeal is the core substance of one or more than one but related grounds of appeal. It must therefore be based on one or more grounds of appeal and if it does not derive or arise from or that it did not relate to any ground of appeal it is deemed as in incompetent. See OKONKWO VS. OGBODU (1996) 4 SCNJ 190 at 199; ADESANOYE VS. ADEWOLE (2000) 5 SCNJ 47 at 61 and OMAGBEMI VS. GUINNESS (1995) 2 SCNJ 247. A ground of appeal is deemed as abandoned if no issue was formulated out of it by the Appellant. The Respondent would also have no right to formulate any competent issue therefrom. per. ALI ABUBAKAR BABANDI GUMEL, J.C.A.

APPEAL: ISSUES FOR DETERMINATION; WHETHER AN APPELLATE COURT IS AT LIBERTY TO SUO MOTU FORMULATE ISSUES FOR DETERMINATION OF AN APPEAL WHERE ISSUES FORMULATED BY THE PARTY WOULD NOT SERVE THE INTEREST OF JUSTICE

Normally, it is for the parties to formulate the issues for determination in an appeal. An Appellate court is however fully seised of power, competence and jurisdiction to reject the issues distilled by the parties and formulate its own, if in its view the issues as distilled by the parties will not read to a proper determination of the appeal. In otherwords, this court is at liberty to suo motu formulate issues for the determination of an appeal where the issues formulated by the parties would not serve the interest of Justice. See BANKOLE VS. PELU (1991) 11 SCNJ 108 AT 120; SHA VS. KWAN (2000) 5 SCNJ 101 at 115 and OGUNBIYI VS. ISHOLA (1996) 5 SCNJ 143 at 154. per. ALI ABUBAKAR BABANDI GUMEL, J.C.A.

EVIDENCE: PROVING OWNERSHIP OF LAND; WAYS OF PROVING OWNERSHIP OF LAND

The law has remained fully settled and well established in the ever green and vintage decision in IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC 227, and the other numerous decisions of the Supreme Court, and this Court that ownership of land may be proved in any of the following ways:-
(a) by traditional evidence;
(b) by production of documents 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 possession 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. per. ALI ABUBAKAR BABANDI GUMEL, J.C.A.

LAND LAW: TITLE TO LAND; WHETHER A PARTY SEEKING A DECLARATION OF TITLE TO LAND MUST IDENTIFY THE LAND WITH CERTAINTY
It is trite that a party seeking a declaration of title to land must show with certainty the land to which his claim relates, see ADEYORI (supra) at 701 B – D. According to the decision in ODOMOSU VS. OLUWOLE (2004) FWLR (Pt.191) 1628 at 1649 to 1650 H – B before a declaration of title to land is granted the land to which the claim relates must be identified with certainty. per. ALI ABUBAKAR BABANDI GUMEL, J.C.A.

EVIDENCE: BURDEN OF PROOF; BURDEN OF PROOF IN CIVIL MATTERS

In civil matters, the burden of proof shifts from the plaintiff to the defendant and vice-versa. The onus always rest on the party who would fail if no evidence is adduced on either side. The nature of proof, of course, is on balance of probabilities or preponderance of evidence, i,e. which side outweighs the other. According to the decision in EYA vs. QUDUS (2002) FWLR (pt.106)1089 at 1121 F, where a party seeks a declaratory relief, the onus is on that party to succeed on the strength of his own case and not on the weakness of the case of the defendant. A consideration of the defendant’s case and the weakness of it does not arise until the plaintiff has led evidence showing prima facie that he is entitled to the land in dispute. per. ALI ABUBAKAR BABANDI GUMEL, J.C.A.

PRACTICE AND PROCEDURE: PLEADINGS; WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS

It is also the law that parties are bound by their pleadings and evidence led on un-pleaded matters goes to no issue. In the same way, un-pleaded facts elicited in cross examination go to no issue. See OJOH VS. KAMALU (2006) ALL FWLR (pt.297) 978 at 995 B – E. per. ALI ABUBAKAR BABANDI GUMEL, J.C.A.

EVIDENCE: EVIDENCE REQUIRED FOR THE PROOF OF A FACT; THE QUALITY OF EVIDENCE REQUIRED FOR PROVE OF FACT TO ESTABLISH A CLAIM MUST BE DETERMINED ON WHAT PARAMETERS

JUSTICE

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

LAFARGE CEMENT WAPCO NIGERIA PLCAppellant(s)

AND

ENGINEER LATEEF ISHOLA OWOLABIRespondent(s)

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ogun State High Court delivered on 24th April, 2012 in suit no. HCT/8/2009.
The Respondent was claimant at the Court below. In an action by way of writ of summons dated 21/01/09, he sought for a declaration of title to land, perpetual injunction against trespass and a substantial amount of money as special and general damages for trespass against the Appellant as the Defendant. The claim is in the following terms; thus:
“a. Declaration of title to the statutory right of occupancy in respect of all that land situate along Papalanto/Lagos Road at Papalanto more particularly described in Survey plan No.JAC/011/95 of 6/2/95 drawn by Owotabi O. S. Licensed Surveyor (Exhibit A).
b. Perpetual Injunction restraining the Defendant, her agent and privies from further trespass unto the land.
c. The sum of N500 Million as special and general damages for trespass.”

Pleadings were duly filed and exchanged. The matter proceeded to trial. At the trial both oral and documentary evidence were adduced by the parties. In its judgment, the Lower Court gave a decision in favour of the Respondent. The Appellant was dissatisfied with that decision and appealed to this court in a notice of appeal dated and filed on 30/04/12 containing 4 grounds of appeal.

To argue the appeal, the Appellant filed a brief of argument dated 19/04/13 on 12/4/13. The brief of the Respondent was filed on 2/8/13 but deemed properly filed and served on 29/04/14. Further to its main brief, the Appellant filed a reply brief dated 10/05/14 on 12/5/14.

From the 4 grounds of appeal, the Appellant formulated the following 2 issues for determination of this appeal. They are:-
“i. Whether or not the portions marked C and D verged yellow in the Survey plan No.OG/704/2009/017 (Exhibit A1), described as the land in dispute are not inconsistent with the parcel of land verged RED in (Exhibit A), and thereby constituting a new cause of action.
ii. Whether or not, on the totality of the evidence before the Lower Court, the Area verged Red in Exhibit A1 and verged Blue short of the Area verged Red and Green in Exhibit L was submitted to the Lower Court for adjudication.”

On behalf of the Respondent, learned counsel raised and argued a notice of preliminary objection seeking to challenge the competence of issue two as formulated and argued on behalf of the Appellant. It was raised and argued in paragraphs 5.00 to 5.10 at pages 6 to 8 of the Respondents’ brief of argument.

Out of the abundance of caution, learned counsel to the Respondent had earlier at page 5 of his brief of argument formulated the following 2 issues for the determination of this appeal. They are:.
‘(1) Whether from the totality of evidence before the Lower Court and even this Honorable Court the Appellant have sufficiently proved that the area marked C and D verged YELLOW in Survey Plan No. OG/704/2009/017 in (Exhibit A1) described as the land in dispute are not inconsistent with the parcel of land verged RED in (Exhibit A) and therefore does not constitute a new cause of action.
(2) Whether the Lower Court was not right in holding that the area verged yellow and marked C and D on Exhibit 41 was not acquired by the Governments and the court therefore has jurisdiction to adjudicate on the case before him.”

Before I proceed to determine the issues in this appeal, I think it is appropriate to at this stage underscore and highlight some of the important facts in this matter. According to the Respondent, the land in dispute originally belonged to one Oguntolu Akinfenwa Akparo. The land passed on to his successors by way of inheritance. Sometime in 1955 Salawu Oyalami and Peter Ogundejo Ogunsewe, as the most senior grand-children of Oguntolu, became the joint heads of the Oguntoru family. It was in that capacity that these family heads sold the land in dispute to the Respondent at the cost of Fifteen Thousand pounds (15,000 pounds). He immediately paid Five Thousand pounds (5,000 pounds) and was issued a receipt. The Respondent added that upon that initial payment the land was handed over to him after he went round it in company of the Oguntolu family heads and other members. It was also agreed that the balance of the purchase money was to be paid in due course and another receipt be formally issued.

Also, according to the Respondent, he travelled abroad soon thereafter and returned in 1968. He claimed to have then paid the outstanding balance when he noticed that some of the younger members of the Oguntolu family were becoming a bit agitated. He continued to use and enjoy the land, upon which he pertook in farming activities. However, he added that in the month of May, 2008, he noticed signs of trespass on the land in dispute. His inquiry led him to the Appellant as the trespasser. It was against this background that the Respondent brought this action for declaration of title, damages for trespass and an order of perpetual injunction.

However, according to the Appellant, the land in dispute is part of vast land compulsorily acquired by the Government of western Nigeria in 1957 and subsequently leased to it for 500 years pursuant to a lease agreement dated 3rd April, 1963. It is also part of the case of the Appellant that all the original owners of the land acquired had been paid compensation as was adjudged to be so entitled by an order of the High Court of western Nigeria sequel to the judgment in suit no AB.78/64 (COMMISSIONER OF LANDS & HOUSING VS. SOYINKA BAALE & ORS). Further and subsequent to that, the Respondent was said to have sued the predecessor company of the current Appellant company (WEST AFRICAN PORTLAND CEMENT PLC) in suit No.HCT/100/95. The Appellant challenged the competence of that action when it claimed that it was statute-barred. And in a ruling upon the preliminary objection of the Appellant, as the Defendant in that suit, the High court of Ogun State held that the suit of the Respondent was caught by limitation of time and therefore statute-barred. While the Appellant believes that the ruling in the notice of preliminary objection per Onafowokan. J. in suit No.HC/100/95 boardered on the subject matter of this action and therefore res judicata, the Respondent believes otherwise and has maintained that this action is entirely different from the one constituted in suit No.HCT/100/95. At the trial the parties adduced evidence in the form of survey plans and land title instruments in support of their respective cases.

Just before I go to the determination of the issues, I wish to refer to and deal with the notice of preliminary objection raised and argued on behalf of the Respondent at pages 6 to 8 of his brief of argument deemed filed on 29/04/14.

Before learned counsel to the Respondent embarked on arguments and submissions on the notice of objection, he observed and pointed out that because the Appellant did not formulate issues out of grounds 1 and 4 of the grounds of appeal, those grounds must be deemed to have been abandoned. He referred to the case of ALABI VS. ALABI (2008) ALL FWLR (Pt.418) 245 at 297.
Where it was held that where a ground of appeal is not related to any issues formulated in the Appellants’ brief of argument, such a ground is deemed abandoned and is liable to being struck out. He therefore urged on the court to strike out grounds 1 and 4 of the grounds of appeal herein for having been abandoned.

On the notice of preliminary objection proper, learned counsel observed that issue 2 of the issues formulated on behalf of the Appellant for the determination of this appeal, though advertised as having been distilled out of ground 3 of the grounds of appeal, it could not be so. To buttress his position learned counsel reproduced ground 3 of the grounds of appeal along with its particulars as well as issue 2 as was said to have been formulated out of it. He quickly pointed out that it was clear to him that issue 2 does not relate to ground 3. In an explanation, learned counsel remarked that while ground 3 challenges the decision of the Lower Court on its finding that the Appellant admitted being a trespasser, issue 2 relates to whether or not from the evidence before the Lower Court the area verged red in Exhibit A1 and verged blue short of the area verged Red and Green in Exhibit L was submitted for adjudication. He referred to the decision in IDRIS VS. ABUBAKAR (2011) ALL FWLR (Pt.557) 733 at 745 and submitted that an issue for determination in an appeal must be tied up to one or more of the grounds of appeal and failure to do so would render the issue incompetent. He therefore urged the court to strike out issue 2 and ground 3 of the grounds of appeal for both being incompetent.

In his response, learned counsel to the Appellant began with an observation that it was a misgiving that the learned trial judge held that the Appellant had admitted being in trespass on the land of the Respondent as the position of the Appellant had always been that there was no land the Respondent had in law or in fact upon which it could have trespassed on. He also juxtaposed ground 3 with his issue 2 and submitted that the Lower Court had no evidence to support a finding that the Appellant admitted trespassing on the land of the Respondent. He urged on the court to discountenance and dismiss the notice of preliminary objection, after having earlier maintained that issue 2 was properly formulated out of ground 3 of the grounds of appeal.

I have carefully considered all arguments and submissions of respective learned counsel. Having done that, I wish to put a few issues in perspective before the actual resolution of the contentious positions of respective learned counsel on the notice of preliminary objection.

With respect to ground 3 in this appeal, I wish to point out that for it to be valid it must relate to the decision appealed against and must also constitute an attack or challenge on an issue decided therein. In totality it must be a complaint against the entire judgment or parts of it. The Appellants’ right of appeal is circumscribed within certain parameters of the judgment appealed against. Therefore any judgment of this court founded on issues not properly canvassed in the court below and not adverted to and pronounced upon in the judgment appealed against is not ideally an appeal against that judgment. See OGUNDARE VS. OGUNLOWO (1997) 6 NWLR (Pt.509) 360.

Learned counsel to the Respondent has not made any submissions on the competence or otherwise of ground 3 as a ground of appeal in this appeal. It must therefore be strongly presumed that there is a sufficient understanding on the part of learned counsel to the Respondent that ground 3 herein is a valid and competent ground of appeal. The essence of the objection of learned counsel to the Respondent is on issue as formulated out of ground 3 herein. An issue for determination in an appeal is the core substance of one or more than one but related grounds of appeal. It must therefore be based on one or more grounds of appeal and if it does not derive or arise from or that it did not relate to any ground of appeal it is deemed as in incompetent. See OKONKWO VS. OGBODU (1996) 4 SCNJ 190 at 199; ADESANOYE VS. ADEWOLE (2000) 5 SCNJ 47 at 61 and OMAGBEMI VS. GUINNESS (1995) 2 SCNJ 247. A ground of appeal is deemed as abandoned if no issue was formulated out of it by the Appellant. The Respondent would also have no right to formulate any competent issue therefrom.

Against this background and to the extent that ground 3 of the grounds of appeal herein has been admitted and accepted as valid and competent and because this court is at liberty to jettison issue 2 formulated on behalf of the Appellant and formulate a proper issue for a just and fair determination of this appeal, and also in the interest of Justice, there would appear to be no merit in the notice of preliminary objection argued on behalf of the Respondent. I am therefore of firm view and belief that it totally lacks merit. I would not hesitate to accordingly discountenance and dismiss it. I hereby now dismiss the notice of objection for lacking in merit. However as rightly argued and submitted above by learned counsel to the Respondent, grounds 1 and 4 of the grounds of appeal, to the extent that no issues were formulated out of them, must be deemed as having been abandoned and liable to being struck out. They are hereby accordingly struck out.

Having dealt with the notice of preliminary objection, I will proceed to decide this appeal upon the 2 issues formulated on behalf of the Appellant. In arguing the 1st issue for the determination of this appeal, learned counsel Mr. Ayeki, on behalf of the Appellant began by way of an introduction when he set qut the claim of the Respondent as the plaintiff at the court below, on the writ of summons and the averment in paragraph 2 of the statement of claim. Against this introduction, learned counsel Mr. Ayeki went on to explain that this appeal is against the judgment of the Lower Court that the portions verged yellow and marked c and D contained in Exhibit A1 were not inconsistent with the pleadings of the Respondent.
He also explained further that the area verged Red in Exhibit A is the area in dispute according to the survey plan pleaded, he added that the cause of action herein is predicated on the area verged Red in Exhibit A.

In highlighting the major complaint of the Appellant against the judgment on appeal, learned counsel remarked that any claim of the Claimant/Respondent at the Court below in respect of the portions verged Yellow in survey plan OG/704/2009/17 (Exhibit A1) attached to the reply to the amended statement of defence of the Defendant/Appellant constitutes a separate head of claim and a new cause of action. He argued that any evidence to support a claim for the area verged Yellow on Exhibit A1, ought to have been discountenanced for being inconsistent with the pleadings in paragraph 2 of the statement of claim. Further to this argument, Mr. Ayeki, of counsel added that the essence of pleadings is to compel parties to define issues upon which the case between them is to be contested accurately and precisely as well as to avoid any element of surprise by either party. He referred to me case of ONWUKA VS. OMOGUI (1992) 3 NWLR (Pt.230) 393 at 414 D where it was held that pleadings guide parties not to adduce evidence outside the facts pleaded because any such evidence on facts not pleaded goes to no issue. He buttressed this settled position of the law by adding that it is not permissible for a party to introduce a different cause of action made out in the writ of summons and the statement of claim. While still setting out the parameters of the main complaint in this appeal, learned counsel pointed out that the inconsistency apparent on the face of the 2 survey plans (Exhibit A and Exhibit A1) and the shift in the alleged area in dispute amounts to an introduction of a fresh cause of action different from the one upon which issues were duly joined in the pleadings of the parties.

While referring to the decision of the Lower Court at page 280 line 20 of the record of appeal that Exhibit A1 only explains Exhibit A with more particularity as to the portion allegedly trespassed upon by the Appellant, Mr. Ayeki maintained that this was a great misdirection because the land in dispute pleaded in paragraph 2 of the statement of claim which the Appellant admitted is only the area verged Red on Exhibit A. Against this background, learned counsel went on to distinguish several features of the lands in Exhibits A, A1 and L. He referred to the various beacons and hecterages of the portions marked A, B, C and D as delineated on the admitted survey plans in evidence. On the remark of the learned trial judge that Exhibit 41 was adduced and admitted without any objection, Mr. Ayeki explained that the Appellant is entitled to submit during final address on whether or not a trial judge could act on any exhibit which during the course of trial ought not to have been admitted, if admitted should be expunged and discountenanced.

In his attempt to lay this issue to rest, learned counsel Mr. Ayeki referred to the case of KANKIA VS. MAIGEMU (2003) 6 NWLR (PT.817) 496 at 518 E – G where it was held that if inadmissible evidence has been inadvertently received in evidence by a trial court, even when no objection had been raised, it remains the duty of the court, when considering its judgment to expunge such evidence. Even on appeal, it could still be rejected if through inadvertence it escaped the trial court because it is only upon lawful evidence that a Court is entitled to decide a matter. He also referred to the decision of the Supreme Court in COMPTOIR COMMERCIAL & IND. S. P. R. LTD vs. OGUN STATE WATER CORP. & ANOR (2002) 9 NWLR (Pt.773) 629 at 655 B – F where it was held that it is not within the competence of parties to proceedings to admits by consent or otherwise, a document which by law is admissible in evidence and it is immaterial if objection was not taken when it was being tendered and admitted in evidence.

In trying to explain the state of the pleadings of the parties, learned counsel referred to and set out paragraphs 13 to 16 of the statement of claim as well as paragraphs 2, 15, 16, 17 and 18 of the amended statement of defence denying the pleadings of the Claimant/Respondent. He further referred to paragraphs 10 to 14 of the amended statement of defence. Against the backdrop of this state of the pleadings, learned counsel pointed out that the Appellant denied at the averments of the Respondent rerating to the land in dispute and pleaded its title to the surrounding land in general as on Exhibit L so it would be erroneous for the Lower Court to decide that the Appellant appeared to the Respondent over the land in dispute by offering him compensation.

While emphasizing the need for a party to be consistent in the prosecution or defence of a claim, Mr. Ayeki, of counsel referred to the Supreme Court decision in EKPE VS. OKE (2001) 10 NWLR (Pt.721) 341 at 353 F – G where it was held that a party should be consistent in the case it pursues because it will not be permitted to spring surprises on the opposite party from one stage to another. He also referred to the decisions in CENTRAL BANK OF NIGERIA VS. DINNEH (2010) 17 NWLR (Pt.1221) 125 at 161 F – G and AJIDE VS. KELANI (1985) 4 NWLR (PT.12) 248 at 251 where the Supreme Court emphasized that a party should be consistent in stating its case and consistent in proving it. Learned Counsel went on to commend to this court the Supreme Court decision in AFOLARIN ADENLE VS. FOLARIN OLUDE (2002) 18 NWLR (PT.799) 413 AT 434 F – H, while forcefully maintaining that there is nowhere in the pleadings of the Respondent where the land in dispute was described, except in paragraph 2 0f the statement of claim. He accordingly submitted that any evidence on a fact that was not pleaded goes to no issue. He urged on the court to hold that the case of the Respondent at the Lower Court was inconsistent and proceed to resolve this issue in favour of the Appellant against the Respondent.

The first issue formulated and argued by learned counsel Mr. Olatunji, on behalf of the Respondent would appear to be substantially the same as the 1st issue formulated and argued on behalf of the Appellant by learned counsel Mr. Ayeki. In arguing this issue learned counsel Mr. Olatunji began by a systematic review of the pleadings of the parties after he set out the main reliefs in the claim of the claimant/Respondent at the court below. He went further to underscore some of the cardinal evidence tendered and relied on at the trial. He particularly introduced and discussed the effect of the respective survey plans (Exhibits A; A1 and L) as the foundation of the claim and defence against it. Having settled these matters, Mr. Olatunji, of counsel went on to explain that it is clear that the parties have clearly identified the land in dispute to the extent that a composite survey plan was absolutely unnecessary. He also referred to the case of DAKOLO VS. REWANE DAKOLO (2011) ALL FWLR (Pt.592) 1610 at 1624 where the Supreme Court held that where the location or identity of land is not in dispute a survey plan is not necessary.

Against this background, learned counsel pointed out that what was in issue before the Lower Court was whether the land being claimed by the claimant/Respondent falls within the land acquired by the Government of western Nigeria in 1957 and also whether the claim of the land verged red on Exhibit A1 was adjudged as statute-barred in suit No.HCT/100/95. According to learned counsel the onus to prove that the land falls within the land acquired by the Government in 1957 or that the claim was previously adjudged as statute-barred squarely lied on the Defendant/Appellant as the party who asserted same. He referred to the provisions of Section 131(2) of the Evidence Act which stipulate, that when a person is bound to prove the existence of any fact the burden of proof of that lies on it. Having identified on who the burden of proof of this fact rested, learned counsel referred to the statement of oath, being the oral evidence of DW1, at pages 226-229 of the record of appeal and outlined its key features, including, of course, the issue of survey plan (Exh. L) and maintained that DW1 failed to give credible evidence as to whether the land in Exh. L is the same as the land claimed by the Respondent in this matter. According to Mr. Olatunji, of counsel, for the Appellant to fully discharge the burden of proof that rested on it, there was the need for it to call an expert witness such as the registered licensed surveyor who prepared Exhibit L or an official of the Ministry of Land. He cited and relied on the decision in MANTEC LTD VS. P.T.F. (2008) 8 WRN 42 at 63 where the importance of, calling and relying on the evidence of an expert witness was emphasized. He then pointed out that the learned trial judge was right in seeing the danger of relying on the evidence of DW1. Learned counsel also submitted that the Lower Court was right when it held that the land in the claim of the Respondent did not fail within the land acquired by the Government of western state in 1957 for the use of the Appellant.

Against the earlier submissions of learned counsel to the Appellant that any claim against the portion of land verged yellow on Exhibit A1 was a separate claim not cognisable against the claim of the Respondent in respect of land verged red on Exhibit A, Mr. Olatunji maintained that this was a misconception of the law. He went on to explain that the essence of pleadings is to give the other party sufficient notice of facts and issues in the dispute between them as parties. He relied on the case of ZENON PETROLEUM & GAS LTD VS. IDRISSIYYA (NIG) LTD (2006) ALL FWLR (Pt.312) 2121 at 2143 and submitted that the law is well settled that a document need not be specifically pleaded once facts related to those documents were pleaded. He referred to paragraphs 4, 6, 7 and 11 of the amended reply to the amended statement of defence and submitted that with these facts the Respondent could sufficiently rely on the dispute survey plan, Exhibit A1 to convince the court that the land in dispute was not acquired by the Government of western Nigeria in 1957 for the use of Appellant. He also maintained that Lower Court was right to admit Exh. A1 in evidence and to evaluate and use it in its judgment.

Because Exhibit 41 was admitted without any objection, Mr. Olatunji argued that it was wrong for the Appellant to raise any objection before this court to the use of Exhibit 41 by the learned trial judge when it failed to do so at the court below. He cited the case of ARCHIBONG VS. THE STATE (2006) ALL FWLR (Pt.323) 1747 at 1768 to 1769 where the Supreme Court reiterated the futility of failure to raise objection before it on the admissibility of a document when the same objection was not raised at the court of trial where the document was tendered in evidence. Still on Exhibit A1, learned counsel was bold in his suggestion that a look at it will show that it explains Exhibit A, more particularly as to the portion alleged to have been trespassed upon by the Appellant Company. He also maintained that Exhibit A1 should not appear strange to the Appellant as issues have been joined on it. Learned counsel Mr. Olatunji went further to refer to what he called the considerable time and efforts, learned counsel to the Appellant put up in comparing Exhibit A and Exhibit A1 and addressing the court on beacon numbers and other features on them. He added that because no evidence was given on these facts, learned counsel cannot turn to give evidence in the guise of addressing the court. He urged on the court to discountenance all those submissions at pages 6 to 16 of the Appellant’s brief of argument and resolve this issue against the Appellant.

From paragraphs 2.00 to 2.30 of the reply brief of the Appellant, learned counsel Mr. Ayeki, dissipated so much energy and effort to substantially re-argue his issue one in the main brief of argument. However, I was still fortunate to decipher one or two points that can be accepted as proper to be in a reply brief. At paragraph 2.06, Mr. Ayeki, of counsel pointed out and emphasized that the area verged Red in Exh. A1 is different in size from the area verged Red in Exh. A attached to the statement of claim. Against this, learned counsel submitted that this is a discrepancy that could only have resulted from the inconsistency in the claim of the Respondent at the Court below.

Further to the foregoing and on the issue of the real relevance and effect of expert witness evidence in the circumstance of this matter, learned counsel was quick to point out that this is a new issue in this appeal as this point was not canvassed and adjudicated upon at the trial Court. Mr. Ayeki, was also quick to point out that the Appellant was not totally unaware of the relevance of expert witness evidence in this matter because it applied for an order of the Lower Court directing the surveyor General of Ogun State or any other competent officer to be assigned by him to produce a composite survey plan with a view to ascertaining the exact location, marking and boundaries of the land which is the subject in these proceedings. Though this application was not opposed, the learned judge before whom the application was made was of the view that it was unnecessary to make the order and he declined to make it. Mr. Ayeki relied on the decision AGBOOLA VS. U.B.A PLC (Pt.1258) 375 at 400 D – F where it was held that the raising of a fresh issue on appeal without leave of court is not allowed and a party cannot random at stray into an argument that did not form part of the case in the Lower Court. In closing his submissions and arguments on this issue of expert witness evidence, learned counsel Mr. Ayeki observed that, if it was indeed a shortcoming on the part of the Appellant to cat and rely on expert witness evidence and that would be held against it or that it was fatal to its case, the Respondent must bear a heavier burden of guilt because he also failed to call expert witness evidence to explain his claim and its harmony on the two survey plans he tendered in evidence against the only one (Exh. L) relied on by the Appellant.

The issue of whether the Appellant is a successor in title to West African Portland cement company Ltd. featured in the reply of learned counsel Mr. Ayeki. I do not think this issue is entirely relevant in view of the narrow compass of the issues for determination in this appeal. From paragraphs 2.26 to 2.30, Mr. Ayeki, of counsel tried to emphasise that all his arguments and submissions in the main brief were aimed at highlighting the established and proven facts and evidence at the disposal of the learned trial judge upon which he was obliged to arrive at a decision. He remarked that the essence of arguments in a brief is not an evidence building exercise but an effort by the parties in an appeal to highlight the facts and evidence adduced and an invitation to the Court to give judgment in accordance with existing law. He finally urged on the Court to discountenance all the arguments of learned counsel Mr. Olatunji and proceed to determine this issue against the Respondent.

In determining this issue appropriately, it appears to me necessary to have an overview of the pleadings of the parties and the material and relevant evidence adduced by them in support of the claim and the defence against it. In that direction paragraphs 2 to 13 of the statement of claim would appear to me to be relevant on the point. They are hereby accordingly reproduced thus:-
“2. The land in dispute is situated at Papalanto on the Lagos – Abeokuta Express Road and is more particularly described in Survey plan No JAC/0IIOG/95 of 6/12/95 drawn by O. S. Owolabi, Licensed Surveyor and marked “Red”.
3. The Claimant state that the Land Originally belonged to one Oguntolu Akinfenwa Akparo who first cultivated the land as a virgin land.
4. The said Oguntolu begat Yewande, Ogunyemi, Afikoya, Ohu, Ogunkanmi, Ogunseye, Oyawale, Ajibola, Ogundare, Oyayomi, Bamgbola who jointly inherited the land from their father as property.
5. Afikoya begat one Salawu Oyalami who subsequently became the family head the most Senior of the grand children, while Ogunseye begat peter Ogundejo another senior name of the grand children who inherited the land after their parents death.
6. The claimant avers that in January, 1955 he approached the Oguntolu family for the sale to him of the land in dispute which they held under customary law.
7. The Oguntolu family agreed to sell the entire land for N15,000 pounds which the claimant paid two installments and two receipts, one dated 15th January, 1955 and 15th day of August 1968 to acknowledged the receipt of the purchase price were issued to the Claimant.
8. The Oguntolu family representatives and the claimant went round the boundaries of the land in the presence of Madam Olaomo Ajibola, Samuel Ademosun the Oguntolu family Head Salawu Oyalami Afikoya assisted by Peter Ogundijo Ogunseye handed over the land to the claimant in January 1955.
9. The claimant took immediate possession in 1955 even though he was yet to pay the balance as agreed.
10. The claimant state that it was after he returned from the United States in 1968 that he paid the balance and when he became apprehensive that the vendors Young elements may turn around and demand for more money he then requested that the already concluded contract of sale be further reduced into writing.
11. The claimant avers that this led to the execution of the agreement dated the 1st day of September, 1968 executed by Salawu Oyalami Afikoya and Peter Ogunseye who collected the purchase price from the claimant.
12. The claimant have since then been farming on the land without any challenge from any quarters until sometimes in May, 2008 when he noticed signs of trespass unto the land.
13. The claimant after discreet investigation discovered that it was the defendant and that the defendant was already discussing with land owners in the area through the Traditional ruler of Papalanto and that one Impostor was already trying to present himself as the claimant.”

Against these averments of the Respondent, the Appellant, in its amended statement of defence dated and filed on 21-02-2011, challenged the Respondent’s above averments in paragraphs 2 to 6. They are also hereby reproduced thus:
“2. The Defendant denies paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the statement of claim and puts the plaintiff to the strictest proof thereof.
3. The Defendant admits paragraph 1 of the statement of claim up to the extent that its registered office and official headquarters is at ELEPHANT HOUSE, Ikeja Central Business District Alausa, Ikeja, Lagos State.
4. The Defendant further admits paragraph 15 and state further that as a result of an interaction between the Defendant Company and principal members of the host communities including the Claimant some huge sum of money was paid out to them by the Defendant Company as a gesture of goodwill and in appreciation of the cordial relationship between the Defendant and the various host communities which the Claimant is part and parcel of.
5. The Defendant denies paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the statement of claim and puts the plaintiff to the strictest proof thereof. In response to averments contained therein, the Defendant avers that the land, the subject matter of this suit, was, compulsorily acquired by the Government of Western Nigeria by Notice No. 1123 in Gazette No. 56 Volume 6 of the 28th November, 1957. The Defendant shall rely on the said official Gazette.
6. The Defendant particularly denies paragraph 12 of the Statement of Claim and avers further plaintiff that the was in trespass to the Defendant land without the Defendant permission to carry out the commercial activities of farming on the land.”

For whatever effect it may later prove to have or not, I wish to reproduce the entirety of the amended reply to the amended statement of defence. It is at pages 230 – 231 of the record of appeal. It is of 11 paragraphs thus:-
“The Claimant in reply to the Amended Statement of defence join issues with the defendant and reply thus:
1. The Claimant in reply to paragraph 1 of the amended statement of defence state that the cause of action arose in 2008 when the defendant trespassed unto the land now in dispute by constructing a road upon it and clearing other parts in the process of which Claimants crops were destroyed.
2. The Claimant state that the portion trespassed upon does not form part of the land leased to the defendant nor formed part of the land acquired and this gave rise to a new cause of action against the defendant.
3. The Claimant in further reply to paragraph 12, 13 and 14 of the Amended statement of defence states that of the five distinct parcel of land acquired by the Government of Western Nigeria only Area “C” is at
Papalanto.
4. The Claimant further states that the total area of land acquired by the said Government at Papanlanto vide the said Gazette No 56, Vol. 6 of 28th November, 1957 measures only 197.4 Acres which the defendant has unlawfully been increasing from time to time.
5. The Claimant state that he has a very large farmland in the area which was not acquired and the part bulldozed in the month of May, 2008 was not part of the one acquired by the Government.
6. The Claimant in reply states that the subject matter of this Suit is different from HCT/100/95 which was struck out and presently before the Court of Appeal, Ibadan pursuant to an appeal lodged by the Claimant.
7. The Claimant shall contend that if there is any purported acquisition on land newly bulldozed by the defendant, the said acquisition failed in 1963 when a lease of the said portion of land was granted to the defendant because the said lease is not in compliance with Notice No. 1123 in Gazette No. 56 Volume 6 of 28/11/1957 and therefore null and void.
8. The Claimant shall also contend that the purported acquisition was no longer for public purpose by virtue of the lease to the defendant, a private person.
9. The land now in dispute has never been entered upon or occupied by the defendant until very recently when the defendant entered with bulldozers.
10. The defendant then appealed to the Claimant to allow their workers worked on the land with a promise of compensating the Claimant.
11. The Claimant shall at the trial of this Suit rely on all evidence and documents available to him.”

Issues now having been duly joined, the parties got ready and the matter proceeded to trial.
During the trial, the Respondent was led by learned counsel Mr. A. A. Omoniyi to identify and adopt his 2 statements on oath respectively made on 21/01/2009 and 30/03/2011. He further told the court seemingly at the prompting of learned counsel that he mentioned exhibits in the adopted statements on oath and proceeded to identify two survey plans in respect of the land in dispute as wet as other document including an agreement said to have been executed on 1/09/1968. All the identified documents were tendered and admitted in evidence without any objection by learned counsel Mr. Ayeki, including survey plans No.JAC/011/0G/95 and OG/704/209/A – D 072, respectively Exhibits A and A1. As part of his cross-examination at page 264 of the record of appeal, the Respondent confirmed that he fired Exh. A with his statement of claim because according to him Exh.A1 was not available. He also added that he filed Exh. A1 with his reply to the amended statement of defence. The evidence of DW1 on behalf of the defendant/Appellant followed the same pattern with the witness denying, during cross-examination, that the Appellant had exceeded the land granted to it by the Government and trespassed on to the land in dispute.

In upholding the claim of the Respondent as it did in the circumstance of the instant appeal, the Lower Court found enough evidence of proof title of under at least 3 of the above 5 methods recognized by the courts. The Lower Court, after what it said was a consideration of the pleadings, isolated Exhibits B, B1, B2 and C as some of the documents, as land agreements, which show ownership and proof of title to land. It was also the view of the Lower Court that the Appellant did not challenge or contradict these documentary exhibits. Also, according to the Lower Court, the Appellant did not plead facts nor red evidence which could show that the area verged Brue in Exhibit L which is outside the land covered by their own lease verged Red in Exhibit L also belongs to them. The adjudication of this matter, according to the Appellant, went off course when the Lower Court at page 285 lines 12 to 16 decided thus:
“I am therefore satisfied that the claimant is entitled to the declaration of title to the land in question well described in Exhibit A as the claimants, land verged red…. Further delineated in Exhibit A1 as that verged yellow and in Exhibit L the unencumbered part of the land verged blue and I so hold. They are (sic) therefore entitled to possession. I grant them (sic) possession of the land in dispute.”

A very careful reading of this crucial part of the judgment of the Lower Court would show a seeming serious contradiction. If the learned trial judge were to hold earlier at page 281 lines 5 to 6 of the record that the issue of the identity of the land in dispute ought to be decided in favour of the Respondent and yet went further to decide that Exhibit A1 only explained Exhibit A with more particularity and that the former is not at variance with the latter. In my view this ensuing contradiction led the Lower Court to fall into an error. I have read the entire paragraphs of the statement of claim at pages 3 to 6 of the record of appeal and the reply to the amended statement of defence at pages 230 to 231, parts of the former and the entirety of the latter have been reproduced earlier in this judgment, there is nowhere Survey Plan No. OG/704/2009/017 (hereinafter Exhibit A1) was ever mentioned at all. Also, the list of Exhibits to be relied on by the Respondent as set out at page 11 of the record of appeal did not include any other survey plan other than number JAC/011/OG/95 (hereinafter Exhibit A). Though Exhibit A1 was tendered and admitted at the trial without any objection, the claimant during his cross examination in court on 8/2/12, more particularly now at page 264 lines 6 to 8 told the Court thus:
“…It is true I filed Exhibit A with my Statement of Claim because Exhibit A1 was not available.”

This answer settled the issue that Exhibit A1 had never specifically been pleaded.
I have herein before set out some of the most relevant averments in the claim of the Respondent, I wish to strongly now emphasize paragraph 2 thereof. It states:
2. “The land in dispute is situate at Papalanto on the Lagos-Abeokuta Express Road and is more particularly described in Survey Plan No. JAC/011/OG/95 of 6/2/95 drawn by O. S. Owolabi, Licensed Surveyor and marked “Red”

Also in paragraph 18(a), the Respondent claimed thus:-
18(a) “Declaration that the claimant is entitled to the possession of the land in dispute.”

A very careful reading of the amended statement of defence, more particularly its paragraphs 2 and 5, would show that there is no dispute on the identity of the land in dispute because paragraph 2 of the statement of claim would appear to have been fully admitted in the amended statement of defence. So therefore, the claim of the Respondent in this action would appear only to extend to the area verged “Red” on Exhibit A. It must also be pointed out and emphasized both in the main statement on oath of the Respondent at pages 8 to 10 and the additional statement on oath at pages 232 to 233 no other land has been described except that one Verged “Red” on Exhibit A. Once a claimant in a land dispute has filed a plan, the issue of identity of the land in dispute will be an issue if, and only if, the defendant in his statement of defence makes it one, that is, if it specifically disputed either the area or the size, location or features on the plaintiff’s plan. See ADEYORI VS. ADENIRAN (2001) FWLR (Pt.76) 689 at 707 C – D.
It is trite that a party seeking a declaration of title to land must show with certainty the land to which his claim relates, see ADEYORI (supra) at 701 B – D. According to the decision in ODOMOSU VS. OLUWOLE (2004) FWLR (Pt.191) 1628 at 1649 to 1650 H – B before a declaration of title to land is granted the land to which the claim relates must be identified with certainty. It is therefore the duty of claimant for a declaration of title to show to the court very clearly the area of land which his claim his predicated upon. If is not so ascertained, the claim must fail and it must be dismissed. It must also be re-stated that in essence, the purpose of ascertaining the exact area of land in dispute is to enable the parties or anybody claiming through them to know the precise area to which the judgment of court pertained to for the purpose of enforcement and to obviate the possibility of future litigation on that particular area.

With respect to the instant appeal it must pointed that the pleading and adducing of evidence by way of survey plan without more cannot warrant the grant of an order for declaration of title to land. However, where a plaintiff was able to prove sufficient acts of possession, the burden is thrown on a defendant under Section 145 of the Evidence Act to prove to the contrary and in order to get judgment the defendant has the onus to rebut the evidence of the plaintiff. See OYADARE VS. KEJI (2005) ALL FWLR (Pt.247) 1583. As in the instant appeal, when the issue is as to which of 2 parties has a better right to possession or occupation of a piece of land in dispute, the law will ascribe possession and/or occupation to the party that proved a better title thereto.

The central theme and main grouse in the complaint of the Appellant in the grounds of appeal out of which issue one was formulated, in my humble view, pertains to a challenge on the evaluation of the evidence on record. This complaint can only be entertained by this Court if an Appellant can satisfactorily show that relevant admissible and admitted evidence was not evaluated at all or if it was evaluated, it was not so properly done leading to the Lower Court coming to unwarranted, palpably unreasonable and perverse findings.

All the evidence in this appeal appears to be entirely documentary, including what would have been the oral evidence of witnesses, save for the new procedure of front loading and evidence of witnesses by way of depositions. This Court is therefore fully seized of the power in like manner with the Lower Court to take a look at the evidence on record with a view to finding if it supports the ultimate findings and decisions of the learned trial judge. Though it is not the best approach to do a very detailed interpretation of survey plans in the absence of and assistance an expert witness, there is very little choice in the circumstances.

According to the pleadings, more particularly paragraph 2 of the statement of claim, the area verged red on Exhibit A is the land in dispute. This has been admitted by the Appellant. Exhibit A also has a piece of land verged green at the top. This is the land in dispute in suit No.HCT/100/95, though as at today the decision on it stands in favour of the Appellant, a purported appeal is said to be pending on the extant decision on it. No real particulars of the alleged or purported pending appeal has been disclosed to this Court in this appeal by any of the parties. There is another area verged green on Exhibit L. It looks of a different dimension to the area verged green on Exhibit A. On Exhibit L, the area verged green was also said to be the same as the land in dispute in suit No.HCT/100/95. The area verged blue on Exhibit L would appear to be the area verged red, green and yellow on Exhibit A1. The area verged green on Exhibit A1 is of different dimension to the area verged green on Exhibit A. The area verged blue on Exhibit L is adjoining the area verged green therein and is within the area verged red and being within the land the Appellant claims to belong to it pursuant to a subsisting lease agreement it has which was executed on 03-04-1963. The area verged blue on Exhibit L and adjoining the area verged green with the area verged red would appear to be the same as the part of the area verged yellow on Exhibit A1.

From the pleadings and the evidence, the Appellant would not appear to be contesting the title of the Respondent to the area verged red on Exhibit A, though it has an outstanding issue with him in respect to the area verged green thereon, upon which it had constructed its junior staff quarters. Against this scenario, it would appear that apart from the area verged green on Exhibit A, the Appellant did not join issues with the Respondent on the area exclusively verged red and would appear not to be contesting his title to it because, among other reasons, it did not even counter claim as may usually have been done in circumstances of outright denial of title of an adverse party.

According to a number of decisions of the Supreme Court and indeed this Court declaration of title would not be granted upon admission only but upon credible evidence showing an entitlement thereto. The learned trial judge and respective learned counsel totally overlooked this state of the evidence on record. However, the learned trial judge, in upholding the claim of the Respondent referred to Exhibits B, B1, B2 and C in addition to Exhibits A1 and L but without any due or proper consideration and regard to Exhibit A. Exhibits B, B1 and B2 are very clear and however on the point, Exhibit C would appear to be telling a different story. Exhibit C was said to have been executed and made on 1st September, 1968 between Salawu Afikoya and Peter Ogundijo Ogunseye on the one hand and Lateef Ishola Owolabi on the other hand. The consideration for Exhibit C was 15,000pounds (Fifteen Thousand pounds). It was said to be for sale of land at Papalanto Village in Ogun State of Nigeria. This is very curious. Was there any Ogun State in Nigeria on 1st September, 1968? Exhibit C was said to have been made sequel and subsequent to Exhibits B, B1 and B2. While Exhibit B2 was made on 15/8/1968, it gives the description of the land purportedly bought by the Respondent and its boarders, the document merely gave the location of the land to be at Paparanto Village via Abeokuta, Exhibit C gave a different location. It is also curious that it was prepared in 1968 by Chief Oye Madandola, Oye Madandola and Co., Solicitors and Advocates, Towobola Chambers, 3 Oke-Irewo Road, Ibara, Abeokuta, Ogun State. The stamp authenticating that Madandola prepared Exhibit C, bears no date on it. Again was there Ogun State on the 1st of September, 1968 for learned counsel Chief Madandola to have the address that Exhibit C shows.

The quality of evidence required for the proof of a fact to establish a claim’ even for minimal proof must be determined on the following parameters:-
(a) whether the evidence is admissible;
(b) whether it is relevant;
(c) whether it is credible;
(d) whether it is conclusive; and
(e) whether it is more probable than that given by the other party.
The Supreme Court considered and approved the above criteria in its decision in ONWUKA VS. EDIALA (1989) 1 NWLR (Pt.96) 182 at 187. With respect to the facts and circumstances in this appeal, Exhibit though C was admitted in evidence without any objection and the Lower Court was entitled to anchor findings on it, its evaluation in the circumstance, in my view, fails below the standard required. If it remains suspect, which I think it does, its contents wit also affect the credibility of other documents related to it, and even the oral evidence of the Respondent in that respect.

It is part of the rules of pleadings that parties must be consistent in averments in support of or for the defence of a claim. Because the reply to a statement of defence is the second pleading of a plaintiff, it is that process that must remain consistent with the statement of claim.

Survey plan No.OG/704/2009/17, like observed and remarked above, has never been pleaded. In his cross-examination, the Respondent told the court that it was not available to him at the time he filed his pleadings. It was therefore not pleaded. Though admitted, it ought not to have seen the light of the day to that extent. Being unpleaded, no evidence can be given on it and it was not procedurally possible for the Lower Court to anchor any findings or award a relief based on it. Learned Counsel Mr. Olatunji for the Respondent sought refuge under a shelter he chose to characterize as the non-objection to the admissibility and admitting of Exhibit A1 at the trial court. He relied on the case of ARCHIBONG THE VS. THE STATE (supra) which he claimed decided that because learned counsel to the Appellant failed to object to the admissibility of Exhibit A1 during the trial, he cannot now do so on appeal. Learned counsel to the Appellant, Mr. Ayeki referred to the case of MAIGEMU vs. KANKIA (Supra) and argued that because Exhibit 41 was inherently inadmissible and though admitted at the Lower Court, it was still possible for him to oppose it on appeal.

I have read and considered these 2 decisions cited by respective learned counsel. ARCHIBONG VS THE STATE was decided by the Supreme Court, while KANKIA VS. MAIGEMU was decided by the Kaduna Division of this court. Though MAIGEMU was decided earlier, it did not in any way derogate or otherwise than what was later decided by the Supreme Court in ARCHIBONG (Supra). For emphasis, the Supreme Court in ARCHIBONG held that:-
“In every case, whether Civil or Criminal, objection to the admissibility of a document must be made when the document is offered in evidence. Where no such objection is raised when offered, the document will be admitted and the opposing party cannot later complain of its admissibility unless the document is by law inadmissible. Where the law declares a document inadmissible for non-compliance with its provisions, the document cannot be admitted in evidence.”
After referring to and approving the decision in JACKER VS.INTERNATIONAL CABLE CO. LTD (1888) 5 TLR 131 in its earlier decision in OWONYIN VS. OMOTOSHO (1961) ALL NLR 304 AT 308, the Supreme Court held further in ARCHIBONG (Supra) that in any trial where evidence has been improperly received by the trial Court, even when no objection is raised, it is the duty of the Appellate Court to reject such evidence and decide the case on the available legal evidence; See also QUEEN VS. HASKE (1961) 2 SC NLR 183 and CITIZENS INT. BANK LTD VS. SCOA NIG LTD & ANOR. (2006) LPELR 5509 (CA). Without any doubt the decision of this Court in KANKIA VS. MAIGEMU remains absolutely sound, having been fully decided in line with a later decision of the Supreme Court. There is no seeming or apparent conflict in the decisions referred to by respective learned counsel, rather they strengthening and re-inforce one another. The case of EKPE VS. OKE (supra) referred to by Mr. Olatunji, of counsel will appear, with the greatest respect, to be totally irrelevant and inapplicable to the facts and circumstances in this appeal. There is no credible evidence that the Appellant had admitted trespassing on the Respondent’s land that an offer of compensation was made to the Respondent by the Appellant. The learned trial Judge was not correct in deciding so.

A Plaintiff should not therefore raise a new cause of action in the reply or one that is different from that raised in the statement of claim. See ADENIJI VS. FETUGA (1990) 5 NWLR (Pt.375) 391 and OJE & ORS. vs. BABALOLA (1991) 5 SCNJ 110 where this court and the Supreme Court respectively held that a new or different cause of action can only be raised by the amendment of the writ and the statement of claim. Because the land in dispute in Exhibit A is different in size, extent and dimension than the one in Exhibit A1, the latter does not form part of claim in this appeal. It was therefore wrong for the learned trial judge to grant title and possession to the Respondent with respect to the land verged yellow on Exhibit A1 because it constituted a different cause of action and also because Exhibit A1 was nowhere pleaded by the Respondent. Issue one is therefore hereby resolved against the Respondent.
With respect to issue 2 in the Appellants’ brief of argument, it appears that from the foregoing exercise, the area verged Red in Exhibit A1 and Verged Blue short of the area verged Red and Green on Exhibit L will be the area verged red on Exhibit A.

In arguing this issue, learned counsel Mr. Ayeki adopted the style of comparing the various areas as verged by respective colours on Exhibits A, A1 and L. Because of the views I expressed herein above on the relevance of Exhibit A1, most of this exercise of learned counsel would be of no consequence in this appeal. Further to the comparison, learned counsel proceeded to highlight some of the findings of the learned trial judge that appeared to him to be contradictory. Against all the contradictions and inconsistent findings, learned counsel pointed out that some of them were in favour of the Appellant and others were in favour of the Respondent. He therefore submitted that the Lower Court misdirected itself when it came to the conclusion that the entire land verged blue in Exhibit L was in dispute. On this submission learned counsel observed that the explanatory note on Exhibit L that the area verged blue was the portion of the land in dispute. In highlighting the most crucial contradictory and inconsistent finding of the Lower Court learned counsel remarked that in one breathe the court found and held that the entire land verged Red in Exhibit L belonged to the Appellant and does not belong to the Respondent it however came to the wrong conclusion that the area verged Red in Exhibit A1 or verged blue short of the area verged red and green in Exhibit L, was in dispute, quite contrary to the explanatory note in Exhibit A1. Learned counsel then went on to submit that the subject matter of the 1o relief was not in dispute for the Court below to have made an order affecting same, if it was not a consequential order. He added further that it was a misdirection for the learned trial judge to hold that it was the portions verged yellow that were trespassed on when the claim of the Respondent ought to have been restricted to the area verged red on Exhibit A. He referred to the case of NDIC VS. SBN PLC. (2003)1 NWLR (pt.801) 311 at 388 B – C and emphasized that the Lower Court not being a father Christmas has no power to make an order or grant a relief which was not asked for.

In consequence of the foregoing, Mr. Ayeki of counsel maintained that the area verged blue short of the area verged red and green in Exhibit L did not comprise the sole parcel of land alleged by the Respondent to be in dispute at the commencement of the action. He submitted that the learned trial judge ought to have dismissed the action in its entirely on the ground that the Respondent had no title to the area verged green and red in Exhibit L, and more particularly in the large expanse of land delineated as Area C and verged red on Exhibit L. Sequel to this argument learned counsel pointed out that the Lower Court misdirected itself and fell into an error when it assumed and decided that the Appellant went on the land outside the area verged Red in Exhibit L and thereby committed trespass on the Respondents’ land. This finding, according to counsel, and the award of N1.0 Million damages was erroneous and not supported by any evidence.

In conclusion learned counsel urged on the Court to hold that the claim of the Respondent was vague, uncertain and inconsistent with the land in dispute and that the Lower Court lacked the jurisdiction to adjudicate on the remainder of the Respondents’ land verged blue short of the area verged red and green in Exhibit L. He further urged the Court to hold that the judgment of the Lower Court was against the weight of evidence because it failed to properly evaluate the evidence before it.

In his response learned Counsel Mr. Olatunji, pointed out that all the arguments and submissions of Mr. Ayeki, of counsel on this issue are not borne out of the evidence before the Lower Court. He accused, Mr. Ayeki of bringing fresh and new issues in this appeal without the leave of Court. He urged on the Court to decipher all these issues that learned counsel attempted to bring through the backdoor and accordingly discountenance them. Mr. Olatunji, of counsel also pointed out that the Appellant heavily relied on the composite survey plan, Exhibit L to support its defence, he submitted that Exhibit L does not support its case. He took a look at Exhibit L and remarked that it shows the land acquired by the Government of Western Nigeria covered by Deeds of Leases dated 3/04/1963. According to learned counsel Exhibit L shows the land of the Appellant as the one verged Red, while the explanatory note showed the land of the Respondent as the one verged blue. In paragraph 7.09 at page 25 of his brief of argument Mr. Olatunji would appear to have abandoned his pleadings and evidence the Respondent adduced at the Lower Court when he pointed that:
“The Respondents’ claim before the Lower Court was for his right to the remaining land verged blue and which extended beyond the area verged Red. At least it is conceded under NOTE 3 of Exhibit L that the property verged Blue in Exhibit L is the one being claimed by Engineer Lateef Ishola Owolabi…”

Because the claim of the Respondent ought to be confined and restricted to the area verged red on Exhibit A; this submission of learned counsel would have added to the confusion and series of errors respective learned counsel and the learned trial judge made in the circumstance of this matter.

In spite of this confusion and palpable inconsistency Mr. Olatunji, of counsel, submitted that the Respondent has established his ownership of the land in dispute by production of title documents as decided in IDUNDUN VS. OKUMAGBA (supra). He further referred to the cases of OGUNYANDE VS. OSHUNKEYE (2007) ALL FWLR (PT.289) 1175 AT 1192 – 1193 and AMOSUN VS INEC & ORS (2010) LPELR and submitted that the Lower Court was right to decide as it did because it was enabled so to do because of the uncontroverted and unchallenged evidence laid before it by the Respondent. In his paragraph 7.07 and 7.13, Mr. Olatunji quoted parts of the judgment of the Lower Court and maintained that since the limit of the land acquired by the Appellant is clearly explained in Exhibit L as the area verged Red, it has no right to trespass on the area verged Blue on the same Exhibit L and therefore since the Appellant had failed to prove its right and entitlement to the area verged Blue, the Lower Court was right to find it liable for trespass. In conclusion, he urged this Court to hold as the Lower Court did and resolve this issue against the Appellant.

It may very well be obiter dictum to say it, but I think it is worthwhile my effort. Learned counsel, on behalf of the Claimant/Respondent has pleaded that the acquisition of land in 1957 by the Western Nigeria Government for the use of the Appellant was not for overriding Public Purpose. This aspect of the case of the Respondent was abandoned because no evidence was led to support it. It however, needs to be emphasized that because the Western Nigeria Government/ or more appropriately its successor in title is not a party to this action. To the extent that it was the one who did the acquisition in 1957 and leased it to the Appellant in 1963 and which lease is still valid and subsisting, it would not be proper for the appropriateness or otherwise of that acquisition and its declared objective to be questioned or determined in this action. For any Court to be fully sised of jurisdiction and competence, to determine and make a judicial pronouncement on any right or obligation, all the parties to be directly affected by that determination must be afforded the opportunity of being heard. May I also add that, it is not in dispute that the Appellant is a Cement Manufacturing Company. It is also most probably possibly an employer of labour. From the size of land it occupies, it is a huge industrial complex. It pays rents on the land leased to it. It is also pay other taxes. Cement required for the development of social and economic infrastructure. All these variables and so many others are beyond per adventure or speculation. To this extent, I fully believe that any acquisition of land for the promotion or to support any or the above objectives, more particularly as they affect the Appellant would have been made for overriding public purpose.

Also, in the absence of any expert evidence(acres).
I have carefully considered all the foregoing arguments and submissions of respective learned counsel and I wish to quickly point out that there is a consistent and sustained effort on the part of learned counsel to the Respondent to snowball this matter out of its settled parameters and at large or out of control. Both by bringing in an unpleaded document Exhibit A1 and now attempting to situate the claim of the Respondent to involve the land verged Blue on Exhibit L, this matter would have been turned into an unruly horse. An unruly horse has no destination. One therefore rides it at his own peril. It is totally wrong for the nomenclature of the land in dispute to keep on changing from the area verged red on Exhibit A to the area verged Blue short of the area verged red and green on Exhibit L. It would amount to a serious and grave inconsistency for the claim of the Respondent to be founded simultaneously on Exhibit A and Exhibit L. I agree with learned counsel to the Appellant that the Court below was wrong; having misdirected itself by assuming that the Appellant went on the land outside the area verged Red in Exhibit L and thereby committed trespass on the Respondents land, when in fact the claim of the Respondent did not have anything to do with the land verged blue on Exhibit L. I also agree with the submission that the Lower Court ought to have dismissed the claim of the Respondent in its entirety on the ground that at the inception of the action he had no title to the area verged green and Red on Exhibit L. I accordingly so hold.

I have earlier on in this judgment pointed out that the burden of proof of specific facts in civil actions is not static. It shifts and swings like a pendulum, from one end to the other. It is in realization of this that Mr. Olatunji, of counsel referred to Section 131(2) of the Evidence Act and submitted that the onus of prove that the land verged red on Exhibit L falls within the land acquired by the Government in 1957 was on Appellant. Because the burden of proof can only shift to the party who will loose if no further evidence was adduced, it would be wrong and totally erroneous that the burden of proof will shift to the Appellant under the circumstance pointed out by Mr. Olatunji, of counsel. This is simply because this action is not about the land verged red on Exhibit L but strictly on the one verged red on Exhibit A and no more. The claim of Respondent does not extend to any portion of the land fully and under the current exclusive possession of the Appellant.

This appeal is hereby allowed. The Judgment of the Ogun State High Court delivered on 24/04/2012 in Suit No. HCT/8/2009 is hereby set aside. Suit No. HCT/8/2009 is dismissed. I order for N50,000 costs against the Respondent in favour of the Appellant.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft form the judgment of my lord Ali Abubakar Babandi Gumel J.C.A. My lord painstakingly considered the salient issues in this appeal.
I agree with his reasoning and the conclusions and further agree that the appeal be allowed and the judgment of the Lower Court set aside.
I abide by the costs of N50,000 awarded in favour of the appellant and against the respondent.

NONYEREM OKORONKWO, J.C.A.: I have had the benefit of reading the of the judgment in this appeal just delivered by my learned brother Ali Abubakar Babandi Gumel JCA. I agree with the conclusion arrived at and the orders made therein.

Appearances

Mr. L. I. AyekiFor Appellant

AND

Mr. Oluwagbemiga OlatunjiFor Respondent