ADEKUNLE v. IBRU (2018)

In The Court of Appeal of Nigeria

On Friday, the 16th day of February, 2018

CA/L/36/2009

Before Their Lordships

TIJJANI ABUBAKAR  Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU  Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO  Justice of The Court of Appeal of Nigeria


Between

MR. REMI ADEKUNLE-Appellant

AND

OLOROGUN OSKAR C. J. IBRU-Respondent

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TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Lagos State delivered by Y. A. Adesanya J. (Mrs.) on the 25th day of April, 2008 as contained at pages 526 – 560 of the Records of Appeal. The Respondent herein as Claimant commenced the suit against the Appellant (4th Defendant) and others who did not defend the suit for damages for trespass and injunction. Parties filed their respective pleadings, tendered evidence and called witnesses before the lower Court and in the end the lower Court found in favour of the Claimant/Respondent.
Dissatisfied with the judgment of the lower Court, the Appellant filed an Amended Notice of Appeal on the 26th day of April, 2013, which is premised on 15 grounds of appeal. The Appellant’s Further Amended Brief of Argument was filed by learned counsel, Chief Bisi Adegunle on the 17th day of March, 2017. The Appellant also filed an Amended Reply Brief on the same 17th day of March, 2017. On the other hand, the Amended Respondent’s Brief was filed by I. A. Ovbagbedia on the 6th day of March, 2017. Learned counsel for the Appellant formulated five (5) issues for determination in this appeal, the issues are reproduced as follows:
1. Whether the Respondent proved that the land in dispute falls within the area covered by his title deed.
2. Whether the Respondent can be said to have produced sufficient, cogent and consistent evidence (oral and documentary) to entitle him to judgment in a case of title to land.
3. Whether the trial Judge was not in error when she held that the Appellant case is defeated by estoppel.
4. Whether the trial Judge did not misunderstand the case of the Appellant and has by so doing caused him a denial of justice.
5. Whether the learned trial judge was not in grave error when she speculated and ascribed possession to the Respondent when on the evidence before her, it was the Appellant that had proved possession in law.

The Respondent similarly distilled five (5) issues for determination as follows:
1. Whether the parties by their pleadings made the identity of the land in dispute an issue before the trial Court.
2. Whether the Respondent proved his case before the trial Court as to entitle him to judgment. 
Whether Exhibit A was properly admitted to prove payment of purchase price.
3. Whether the Learned trial judge rightly held that Suit No: IK/53/66 operates as estoppel and bars the appellant from disputing the title of the Respondent.
4. Whether the Learned Trial Judge correctly evaluated the evidence and case of the parties.
5. Whether the Respondent convincingly proved possession in law.

SUBMISSION OF COUNSEL
On the first issue which is “whether the Respondent proved that the land in dispute falls within the area covered by his title deed.” Learned counsel for the Appellant referred to paragraph 1 of the Amended Statement of Claim, Exhibit C1 tendered by the Respondent and Exhibit D7 tendered by the Appellant at the lower Court. Counsel further referred to the testimonies of the Respondent’s witness under cross-examination to submit that confusion arose as to the identity of the land in dispute which only a composite plan could clear. Learned counsel relied on JOHN BANKOLE Vs. MOJIDI PELU (1991) 8 NWLR (Pt. 211) Pg. 523 at 550 and ADEYORI Vs. ADENIRAN (2001) 1 NWLR (Pt.720) Pg. 523 at 550 to contend that where there is confusion regarding the identity of the land in dispute, it is the duty of the claimant who has to establish with certainty the land in dispute to file a composite plan and that the Respondent herein failed to do so.
Learned counsel referred to the findings of the lower Court at page 546 of the Records of Appeal to submit that the learned trial judge erred in holding that there was no dispute on the identity of the land and at the same time that they acknowledged that parties described the land in dispute differently in their pleadings. Counsel referred to ILONA Vs. IDAKWO (2003) 11 NWLR (pt. 830) pg. 53 at 85, Paras. D – G to argue that in the instant case, the identity of the land in dispute was made an issue when the parties gave different descriptions of the land in their pleadings and as well as in the proceedings when they tendered survey plans totally different in sizes and dimensions. Counsel submitted that in this sort of situation, filing of a composite plan is a duty the Respondent cannot avoid.
Learned counsel for the Appellant submitted that the case of GBADAMOSI Vs. DAIRO (2007) 3 NWLR (Pt. 1021) 282 relied on by the learned trial Judge in arriving at

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the conclusion that there was no dispute regarding identity of the land in dispute has no bearing to the facts and circumstances of the instant case. Counsel relied on OGUN Vs. AKINYELU (2004) 18 NWLR (Pt. 905) Pg. 362 at 385to further submit that the parties herein described the land in dispute differently in their pleadings and they filed different survey plans and that the Appellant specifically made identity an issue under cross-examination. Learned counsel cited ALAO Vs. AKANO (2005) 11 NWLR (Pt.935) Pg. 160 at 178, Paras. C – D to submit that the evidence led must prove what was alleged in the statement of claim and that in the instant case, the Respondent who claims two plots of land and tendered a document of title that has no bearing with the said two plots cannot be heard to say that he is entitled to succeed on the issue of identity.
On the second issue which is “Whether the Respondent can be said to have produced sufficient, cogent and consistent evidence (oral and documentary) to entitle him to judgment in a case of title to land“; learned counsel for the Appellant referred to ROMAINE Vs. ROMAINE (1992) 4 NWLR (pt. 238) pg. 650 at 662, paras. D – G; ADENIRAN Vs. OLAGUNJU (2001) 17 NWLR (Pt. 741) 169 (CA); AGUSIOBO Vs. OKAGBUE (2001) 15 NWLR (pt. 737) 502 (CA); ENILOLOBO Vs. ADEGBESAN (2001) 2 NWLR (Pt. 698) 611 (CA); JOHNSON Vs. OSAYE (2001) 9 NWLR (Pt. 719) 729 (CA); KACHALA VS. BANKI (2001) 10 NWLR (pt. 721) 442 (CA); KYARI vs. ALKALI (2001) 11 NWLR (pt. 724) 412 (SC) and OFODILE Vs. C.O.P (2001) 3 NWLR (Pt. 699) 139 (CA) as authorities on the evaluation of documents of title. Counsel referred to the only witness called by the Respondent (Claimant) whose Written Statement is at pages 339-343 of the Records of Appeal and Exhibits C1, C2, C3 and C4 tendered through him to submit that the witness merely repeated the narratives contained in the Statement of Claim without analyzing and understanding same.
Learned counsel submitted that the Respondent’s witness under cross-examination at page 360 of the Records of Appeal admitted that his evidence was not based on personal knowledge and that he was neither there when the Respondent allegedly purchased the land in dispute nor does he know anything about the transaction or whether the Respondent was put in possession. Counsel relied on ALAO Vs. AKANO (Supra) to submit that in as much as the Respondent’s sole Witness could not explain the purport of the Respondent’s documents of title, his case should have been dismissed. Learned counsel contended that there is no evidence showing the nexus between OLOROGUN MICHAEL C. O. IBRU of No. 6, Louis Solomon Close, Victoria Island, Lagos (contained in paragraph 1 of the Amended Statement of Claim) and MICHAEL CHRISTOPHER ONAJIRHEVBE IBRU of 6, Oshokoya Street, Shomolu, near Lagos (contained in Exhibit C1). Counsel submitted that the lower Court erred to have made a case for the Respondent by supplying the missing link at page 548 of the Records of Appeal when the Respondent did not even address the issue in his Written Address.
Learned counsel cited OBAWOLE Vs. WILLIAMS (1996) 10 NWLR (Pt. 477) Pg. 146 to submit that for a document to be of any evidential value, the recital must trace the root of title to the original or established owner. Counsel referred to the recital in Exhibit C1 which traced the root of title to Exhibit C2; the recital in Exhibit C2 which traced root of title to Exhibit C3; the recital in Exhibit C3 which traced the root of title to Exhibit C4 and then the recital in Exhibit C4 itself. Learned counsel submitted that the chain of title is irreparably broken and that there is no clue in the recital in Exhibit C4 as to where the Vendor therein, David Sogunro got his root of title. Counsel submitted that the learned trial Judge erred in his findings on this issue at page 549 of the Records of Appeal.
Learned counsel cited OGUNLEYE Vs. ONI (1990) 2 NWLR (Pt. 135) Pg.523 at 550 BANKOLE Vs. MOJIDI PELU (1991) 8 NWLR (Pt 211) Pg. 745; IGE Vs. FAGBOHUN (2001) 10 NWLR (Pt.721) Pg. 468; AJIBULU Vs. AJAYI (2004) 9 NWLR (Pt. 885) Pg. 458; ARUM Vs. NWOBODO (2004) 9 NWLR (Pt. 878) Pg. 411 and MEKA Vs. ANIAFULU (2005) 13 NWLR (Pt. 943) Pg. 668 to submit that the Respondent has a duty to prove the origin of the title of the particular person that sold or granted the land to him or from whom he inherited the land unless the title has been admitted. Counsel further cited BAMGBOSE Vs. OSHOKO (1988) 2 NWLR (Pt. 78) Pg. 509 and LAWSON Vs. AFANI CONSTRUCTION LTD (2002) 2 NWLR (Pt.752) Pg. 585 to submit that one cannot rely on chains of documents that do not add up and be held to have

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discharged that burden; and that the lapses in the instant case are great and sufficiently weighty to defeat the Respondent’s (Claimant’s) claim.
The third issue is “Whether the learned Judge was not in error when she held that the Appellant’s case is defeated by estoppel”, Appellant’s counsel referred to paragraphs 7-10 and 11 of the Amended Statement of Claim at pages 290-294 of the Records of Appeal and paragraphs 2-6 of the Respondent’s Reply to Defence at pages 354-355 of the Records of Appeal to submit that the Respondent did not plead the judgment in suit IK/53/66 as estoppel. Counsel referred to B.C.C.I Vs. D STEPHENS LTD (1992) 3 NWLR (Pt.232) 772; CLAY INDUSTRIES (NIG) LTD Vs. AINA (1997) 8 NWLR (pt. 516) 208 and OHIAERI Vs. AKABEZE (1992) 2 NWLR (Pt.221) Pg. 1 at 20-21 and submitted that the Respondent relied on the judgment in suit IK/53/66 as an act of possession and not as constituting estoppel. Learned counsel cited ODINKENMERE Vs. IMPRESIT BAKOLORI (NIG) LTD (1995) 8 NWLR (pt.411) 52 to submit that the Court cannot use a judgment for a different purpose other than that for which it was tendered and that estoppel was never an issue in the instant case.
Learned counsel further submitted that the Respondent failed to prove that the parties and subject matter in this suit and suit IK/53/66 are the same as required for a valid plea of estoppel. Counsel argued that there was no mention of Akinole-Oshiun family in Exhibit C5, the judgment in suit IK/53/66, and that the findings of the lower Court that the Defendant in the said suit IK/53/66 is privy of the Appellant’s Akinole-Oshiun family cannot be supported by evidence. Learned counsel cited CHUKWURA Vs. OFOCHEBE (1972) 12 SC 189 to submit that the Respondent having failed to adduce evidence to establish the plea of estoppel per rem judicata, the plea or defence must crumble accordingly. Counsel urged this Court to resolve this issue in favour of the Appellant.
On issue four, which is, “Whether the trial Judge did not misunderstand the case of the Appellant and has by so doing caused him a denial justice”, learned counsel referred to the findings of the lower Court at pages 550-551 of the Records of Appeal and the evaluation of Exhibit C16. Counsel referred to pages 365 and 329-331 of the Records of Appeal to submit that the lower Court evaluated the wrong evidence because the Appellant did not tender any deed of conveyance and that the Appellant’s case was that he bought under Yoruba native law and custom. Learned counsel submitted that Exhibit C16(c) was tendered by the Respondent through the Appellant under cross-examination and that the Appellant was neither questioned about any deed of assignment executed in his favour nor did he admit same.
Learned counsel further submitted that Exhibit C16(c) was not pleaded by any of the parties to the proceedings and no issue was joined on or made out of that document at the trial. Counsel referred to TEWOGBADE Vs. AGBABIAKA (2001) 5 NWLR (Pt. 705) 38 at 53, Paras. D – E and AKINRINDE Vs. LAWAL (1996) 2 NWLR (Pt. 429) 218 at 229, Paras. C – D to submit that evidence which was not pleaded but extracted from cross-examination goes to no issue. Learned counsel submitted the learned trial Judge completely misconceived the case of the Appellant owing to the evaluation of wrong evidence. Counsel urged this Court to resolve issue No: 4 in favour of the Appellant.
On issue number five which is “Whether the learned judge was not in grave error when he speculated and ascribed possession to the Respondent when on the evidence before her, it was the Appellant that had proved possession in law”, learned counsel for the Appellant referred to AJERO vs. UGORJI (1999) 10 NWLR (Pt. 621) 1 (SC) and AKINTERINWA Vs. OLADUNJOYE (2000) 6 NWLR (Pt. 659) Pg. 92 at 115, Para. B & Pg. 116 Para. B to submit that though there are various acts that constitute evidence of possession of land as recognized by law; it is however wrong for a party to obtain possession of a disputed land and that in the instant case, the Respondent’s entry into the land amounts to trespass. Counsel further submitted that the Respondent has not established by evidence any acts which constitute evidence of possession and that the Appellants were forcefully dispossessed of the land in dispute by the Respondent using men of the Nigerian Police Force.
Learned counsel referred to the testimony of DW4 at pages 441-443 of the Records of Appeal where DW4 testified that he was put in possession by the 4th Defendant who is the Respondent’s Predecessor-in-Title. Counsel also submitted that it is in evidence that the Appellant erected a fence on

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the land. Learned counsel referred to AKANDE Vs. ALAGBE (2000) 15 NWLR (Pt. 690) Pg. 353 at 384 Para. E; TUMO Vs. MURANA (2000) 12 NWLR (Pt. 681) Pg. 370 at 390, Paras. G – H and AKINTERINWA Vs. OLADUNJOYE (Supra) at Pg. 105, Paras. A – B to further contend that where both parties to a land in dispute lay claim to possession; possession is in the party that establishes a better title. Counsel submitted that neither of the Exhibits tendered by the Respondent through the Respondent’s only witness, CW1 nor the testimony of CW1 under cross-examination contained at pages 360 -363 of the Records of Appeal explained the discrepancies in Respondent’s alleged root of title.
Learned counsel argued that the Appellant on the other hand established title by purchase under customary law. Counsel referred to the testimonies of DW2 and DW3 at pages 371 and 434-435 of the Records of Appeal who are principal members of the Akinole-Oshiun family, the original owners of the land from whom the Appellant bought. Learned counsel submitted that the Appellant established a better title with cogent and uncontradicted evidence as against the Respondent. Counsel referred to Exhibit C5 relied upon by the lower Court in reaching the conclusion at pages 557-558 of the Records of Appeal and submitted that the trial Court ignored the fact that the land in dispute is different from the land covered by the said Exhibit C5. Learned counsel urged this Court to hold that the findings of the lower Court are baseless and that this appeal be allowed.
On the first issue distilled by the Respondent which is “Whether the parties by their pleadings made the identity of the land in dispute an issue before the trial Court”, learned counsel for the Respondent submitted that by the decision in ILONA Vs. IDAKWO (Supra) relied on by the Appellant, the question of dispute as to identity of land will only arise either where pleadings are ordered and filed or where the trial is without pleadings and that the two procedures are independent of each other. Learned counsel argued that where pleadings have been ordered and filed as in the instant case, the issue of raising questions as to identity of the land in dispute can only be raised in the Statement of Defence. Counsel submitted that the trial judge was right in his findings at pages 545-546 of the Records of Appeal because the issue of identity of the land was not an issue as it was never pleaded nor issues joined on same.
Learned counsel relied on OKWEJIMINOR vs. GBAKEJI (2008) 5 NWLR (Pt. 1079) Pg. 172 at 196 to submit that information extracted under cross examination on facts not pleaded goes to no issue. Counsel further relied on GBADAMOSI Vs. DAIRO (Supra) and the findings of the learned trial Judge at page 546 of the Records of Appeal to submit that the instant case was decided on the pleadings of the parties and that the lower Court’s decision is justified, it is not perverse and it is clearly supported by evidence on record. Learned counsel urged this Court to so hold and to resolve this issue against the Appellant.
On the second issue distilled by the Respondent which is “Whether the Respondent proved his case before the trial Court as to entitle him to judgment“, learned counsel submitted that the Respondent proved his case at the lower Court on the balance of probabilities as to entitle him to judgment at the lower Court. Counsel further submitted that the lower Court was right in its findings at pages 549 of the Records of Appeal that the Respondent established ownership of the land through Exhibits C1 – C5. Learned counsel contended that the situation in the case of ALAO Vs. AKANO (Supra) cited by the Appellant’s counsel is not similar to the situation in the instant case; and that the Appellant admitted in paragraph 5.04 of the Appellant’s Brief that the Respondent’s sole witness gave evidence in line with the Statement of claim.
Learned counsel referred to ATANDA vs. IFELAGBA (2003) 17 NWLR (Pt. 849) Pg. 274 at 288, Paras. E – F and submitted that it must be shown specifically what document required explanation but which was not explained and what the likely explanation should be practically when it is realized that every written document speaks for itself. Counsel further urged this Court to hold that from the evidence before the trial judge, all documents tendered were in line with the pleadings and evidence led at the trial and that the decision in ALAO vs. AKANO(supra) is inapplicable to the instant case.
Furthermore, the Respondent referred to ADEKEYE & ORS Vs. ADESINA & ORS (2010) 12 SC (pt. II) pg. 1 at 28, Paras. 15 to submit that the findings of the lower Court at

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pages 548 of the Records of Appeal on the nexus between the Respondent’s name as OLOROGUN MICHAEL C. O. IBRU of No. 6, Louis Solomon close, Victoria Island, Lagos (contained in paragraph 1 of the Amended Statement of Claim) and MICHAEL CHRISTOPHER ONAJIRHEVBE IBRU of 6, Oshokoya Street Shomolu, near Lagos (contained in Exhibit C1) cannot be faulted because the issue was never pleaded by the Appellant but only raised in the Address and therefore goes to no issue. Counsel urged this Court to discountenance the Appellant’s argument in this regard on the ground that the Appellant has not shown that by any evidence on record there is any other person by the name MICHAEL C. O. IBRU who lays claim to Exhibit 1.
On the Appellant’s submission that the Respondent’s chain of title is irreparably broken, learned counsel submitted that there is no such missing link between Exhibit C2 and C3 and that the Appellant only referred to the recital on Exhibit C2 and ignored the testatum in coming to the conclusion that there was a missing link in between Exhibit C2 and C3. Counsel submitted that Exhibit C5 is a valid judgment of the High Court of Lagos State delivered on 26th day of November 1981 which was not appealed against and remains subsisting and binding. Learned counsel referred to the findings of the lower Court at pages 553-554 of the Records of Appeal to argue that the Appellant did not dispute the findings that the action in Exhibit C5 was defended on behalf of the Oshiun family the predecessor-in-title of the Appellant. Counsel urged this Court to resolve this issue against the Appellant and to hold that there is no break in the chain of Respondent’s title.
The Respondent’s third issue is “Whether the Learned trial judge rightly held that Suit No: IK/53/55 operates as estoppel and bars the appellant from disputing the title of the Respondent”, learned counsel for the Respondent relied on OSENI Vs. BAJULU & 2 ORS (2009) 12 SC (Pt. II) Pg. 81 at 99 to submit that the Appellant’s issue as to whether estoppel was pleaded is a fresh issue before this Court as it was not argued before the lower Court and no leave was obtained to raise same. Counsel referred to OHIAERI Vs. AKABEZE (Supra) to further submit that a party relying on the plea of estoppel is only obliged to use such words s which suggest that he is relying on the judgment as a bar against the other party from relitigating an issue already litigated upon. Counsel referred to paragraph 15 of the Appellant’s Amended Statement of Defence and Counter-claim at page 552 of the Records of Appeal and paragraph 2 of the Respondent’s Reply and Defence to Counter-claim at page 354 of the Records of Appeal to argue that the use of the technical word “estoppel” or “res judicata” is not necessary but that the pleadings of the parties are sufficient to suggest the plea of estoppel.
Learned counsel submitted that contrary to the contention by the Appellant that there was no nexus between the Osiun family in suit IK/53/66 and the Akinole-Oshiun family – the predecessor-in-title of the Appellant; the findings of the lower Court at pages 557 of the Records of Appeal were based on a critical analysis of the pleadings, evidence and submissions of counsel are not perverse nor shown to be. Counsel referred to paragraph 8 of the Amended Statement of Claim at page 291 of the Records of Appeal; paragraphs 14 & 15 of the Further Amended Statements of Defence and Counter-claim at page 552 of the Records of Appeal; the testimony of DW2 under examination-in-chief at page 310 of the Records of Appeal and the testimony of DW1 (the Appellant) at page 331 of the Records of Appeal to submit that the findings of the learned trial judge on the similarity of party is supported by the pleadings and evidence. Counsel urged this Court to so hold and to resolve this issue against the Appellant.
On the Respondents fourth issue for determination “Whether the Learned Trial Judge correctly evaluated the evidence and case of the parties”; this was the fourth issue raised by the Respondent and learned counsel’s submission is that the learned trial Judge all through pages 547-549 and 549-553 of the Records of Appeal carefully and correctly evaluated the evidence and case of the parties herein. Counsel argued that the implication of the findings of the lower Court at page 553 of the Records of Appeal is that the Appellant failed to establish his title to the land in view of the clear findings that Exhibits D1, D2 and D3 were not sufficient to establish his title to the land. On the submission by the Appellant that the learned trial judge evaluated the wrong evidence, counsel referred to

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ONYEMAIZU vs. HIS WORSHIP I. A OJAKO & ORS (2010) 4 NWLR (Pt. 1185) Pg.504 at 519 to submit that finding of the lower Court was a slip and as such it is not sufficient to result in a reversal of the judgment unless the Appellant shows that the slip by the learned trial Judge has affected or did influence the decision.
Learned counsel further submitted that it is not correct as stated by the Appellant that the case reviewed by the lower Court was not the case presented by the Appellant. Counsel argued that the Appellant has not shown that the singular slip is capable of affecting the entire judgment. Learned counsel further submitted that even if the entire findings of the learned trial Judge as it relates to Exhibit C16(c) were expunged, it will not affect the unchallenged decision of the learned trial judge that Exhibits D1, D2 and D3 were not sufficient to establishing the Appellant’s title to the land. Counsel submitted that Exhibit C16(c) had thinned into irrelevance and that by Section 15 of the Court of Appeal Act CAP C36 LFN 2004 and the decision in LAMURDE LOCAL GOVT vs. KARKA(2010) 10 NWLR (Pt. 1203) Pg. 574 at 596, this Court is urged to correct the slip in the judgment of the lower Court by deleting the said slip and to resolve this issue against the Appellant.
On the fifth and last issue distilled by the Respondent which is “Whether the Respondent convincingly proved possession in law”, learned counsel referred to the findings of the lower Court at page 557 of the Records of Appeal to urge this Court to hold that the learned trial Judge duly considered all the evidence adduced by both parties and came to the right decision that the Respondent and not the Appellant was able to prove possession. Counsel further referred to the counter claim of the 4th Defendant at page 428 of the Records of Appeal and the findings of the lower Court at pages 558 of the Records of Appeal to submit that the Appellant who claimed for possession cannot contend to have been in possession of the land in dispute at the time the suit was instituted before the lower Court.
Learned counsel further submitted that the root of title of the Respondent is hinged on documentary evidence which cannot be contradicted by oral evidence. On the issue of identity, learned counsel submitted that apart from the fact that the issue was not raised in the pleadings of the parties, the identity of the land was not in dispute and therefore there was no need for a composite plan since the parties and the lower Court were not in doubt as to the location of the land. Counsel urged this Court to dismiss this appeal as completely lacking in merit.
In the Appellant’s Amended Reply Brief of Argument learned counsel for the Appellant on the Respondent’s issue No. 1 referred to ILONA Vs. IDAKWO (Supra) to reiterate their submission that the issue of identity can be raised under cross-examination and that the identity of the land in dispute was made an issue when Respondent’s witness under cross-examination admitted that Exhibit C1 covers a larger parcel of land than the two plots comprised in Exhibit D7 and that he could not pinpoint or identify the location of the land in dispute. Learned counsel submitted that the Respondent ought to and failed to file a composite plan.
On the Respondent’s Issue No. 2, learned counsel referred to Section 126 (a) and (b) of the Evidence Act, 2011and BUHARI Vs. OBASANJO (2005) 13 NWLR (pt. 941) pg. 1 at 176, paras. C – H to submit that the point being made by the Appellant is that the evidence given by the Respondent witness was not based on personal knowledge and this was admitted under cross-examination at pages 360 of the Records of Appeal. Furthermore, the learned counsel for the Appellant referred to THE REGISTERED TRUSTEES OF THE DOCESE OF ABA Vs. HELEN NKUME (2002) 1 NWLR (pt. 749) 726 (Sic) reiterated that the root of title was not established and that Exhibit C3 referred to was not even reproduced before the lower Court. Counsel submitted that where possession has not been proved, purported acts of possession amounts to trespass.
On the Respondent’s issue 3, learned counsel argued that Estoppel was not an issue at the trial, but it was only raised for the first time by the trial Judge suo motu without hearing the parties. Counsel cited NSIEGBE Vs. MGBEMENA (1996) 1 NWLR (pt. 429) Pg. 607 at 623, Para E to submit that it is mandatory for the Court to give the parties the opportunity to be heard before deciding on an issue raised suo motu and not by the parties. Learned counsel submitted further that the argument that the pleadings of the parties are sufficient to suggest the plea of

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estoppel cannot stand. Counsel cited ABUBAKAR Vs. F.M.B LTD (2002) 4 NWLR (pt. 756) Pg.29 at 33, Ratio 5 to submit that the issue of estoppel res judicata must be raised intentionally and not subjected to suggestion.
On the Respondent’s issue No: 4, learned counsel for the Appellant cited KALU Vs. ODILI (1992) 5 NWLR (pt.240) pg. 130 at 175, Paras. A – B to submit that the error by the trial Judge cannot be regarded as a slip and that it is of a fundamental nature and indeed occasioned a miscarriage of justice for which this Court will interfere. Counsel further cited ILONA Vs. IDAKWO (2003) 11 NWLR (Pt. 830) Pg. 53 at 85, Paras. D – G, ILONA Vs. IDAKWO (2003) 11 NWLR (Pt. 830) Pg. 53 at 85, Paras submitted that the error in the judgment in the instant case goes to the root of the decision and the judgment ought therefore to be reversed.
On the Respondent’s fifth issue, learned counsel for the Appellant argued that the case of the Appellant at the trial Court was that he was forced out of the possession by the Respondent who used men of the Nigerian Police Force to dispossess him of the land in dispute. Counsel referred to paragraphs 19 – 26 at page 427 of the Records of Appeal and submitted that it became necessary for the Appellant to be restored into possession. Learned counsel cited GUINESS (NIG) LTD Vs. UDEANI (2000) 14 NWLR (Pt. 687) Pg. 367 at 389, Paras. H – A; EGBA Vs. APPAH (2005) 10 NWLR (Pt. 934) Pg. 464 and ALAO Vs. AKANO (Supra) to submit that the production of documents of title is not sufficient proof of a claimant’s title, but that oral evidence must be called in support thereof. Counsel again urged this Court to allow this Appeal.
I need to quickly mention here that the purpose of reply brief is to answer new issues raised in the Respondents brief of argument, it must not be taken as an avenue for the Appellant to repeat or reargue his submissions, see: YADIS NIGERIA LTD Vs. GREAT NIGERIA INSURANCE COMPANY LTD. (2007) LPELR-3507 (SC).
The instant Appellant’s Reply brief is a clear repetition of Appellants submissions.
RESOLUTION
I had the benefit of perusing through the facts on records coupled with the fifteen (15) grounds of appeal contained in the Amended Notice of Appeal filed on 26th April, 2013 as well as the issues formulated by the respective parties in this appeal and the in-depth arguments canvassed, and I am of the view that the issues formulated by the Appellants are apt for the determination of the appeal before us, the issues are in my view capable of dealing with the real issues between the contending parties.
The first issue relates to whether the Respondent proved that the land in dispute falls within the area covered by his title deed? While the Appellant argued that there is confusion as to the identity of the disputed land and that same was made an issue when the parties gave different description of the land, the Respondent argued to the contrary. The decision of the learned trial judge on this issue can be found at pages 546 to 547 of the record of appeal as follows:
“It has been contended for the 4th Defendant in this regard that the Claimant has failed to establish the identity of the land in dispute and that neither did exhibit C7 nor the survey plan attached to it specify any particular or precise acreage of land, save that CW1 testified that the said land is about two plots in dimension, The Claimant’s counsel has on the other hand argued that parties herein did not join issues on the identity of the land as this issue was not raised by the 4th Defendant in his pleading and that what is more, parties herein know the land in dispute, A Claimant seeking a declaration of title to land has the primary duty or burden to prove clearly and unequivocally the precise area to which his claim relates…
I am of course aware of the same Apex Court’s decision in Ilona Vs. Idakwo & Anor. (2003) 11 NWLR (Pt. 830) pg. 53, which was commended to the Court by the learned counsel for the 4th Defendant, wherein the Court held that in addition to the above stated way of joining issue on the identity of land would be in issue where the defendant raises it during the cross examination of the adversary and his witnesses.
A perusal of the averments in the 4th Defendant’s further amended statement of defence shows that no issue was joined on the identity of the land in dispute …
Evidence has been led by both parties on the identity, location and size of the land in dispute, the parties’ activities on the land resulting in the intervention of the police at several times, evidence of which has also been adduced lend credence to the fact that there is

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no issue joined as to the identity of the land, subject matter of this suit. I therefore find and hold that there is no dispute as to the identity of the land, subject matter of this suit….”
With due respect to the learned Counsel for the Appellant, the above reasoning and conclusion of the learned trial judge undoubtedly manifests a sound application of the settled position of the law on when it can be said that the identity of a disputed land is in issue, as laid down by the Supreme Court in a plethora of decisions. In the words of UWAIFO, JSC in ADENLE Vs. OLUDE (2009) 9 – 10 SC 124; (2002) LPELR – 129 (SC); “the law is that the identity of land in dispute will be in issue only if the defendant in his statement of defence makes it so by specifically disputing either the area or size covered or the location as shown in the plaintiff’s plan (if there is a plan), or as described in the statement of claim.” See also EZEUDU & ORS Vs. OBIAGWU (1986) 2 NWLR (Pt 21) Pgs. 208 at 220, where OPUTA, JSC held that “the identity of land in dispute will be in issue, if, and only if, the Defendants in their Statement of Defence made it one – that is they disputed specifically either the area or the size or the location or the features shown on the Plaintiff’ plan. When such is the case then the identity of the land becomes an issue.” See: further ANYANWU & ORS vs. UZOWUAKA & ORS (2009) 12 NWLR (Pt. 1159) Pg. 445 SC.
It is therefore established in the light of the foregoing decisions of the Supreme Court, that identity of a disputed land will only be in issue where the Defendant made it one in his Statement of Defence. It is the contention of the Appellant’s counsel that the identity of the disputed land in this case was made an issue, since it was raised during the cross-examination of CW1 and that the learned trial judge erred when he failed to abide by the decision of the Supreme Court in ILONA Vs. IDAKWO (supra). I must say, without any doubt, that the contention of learned Counsel for the Appellant is with all due respect, misconceived and without any basis. On the contrary the learned trial judge correctly quoted with approval the dictum of the Supreme Court in ILONA before reaching the right conclusion that the identity of the land in dispute was not in issue in the present case.
It is important to note that the Supreme Court did not depart from its earlier decisions to the effect that identity of land can only be in issue when the Defendant made it one in his statement of defence; rather the Court made a distinction between instances where pleadings are ordered and vice versa. While stating that the onus of establishing with certainty and precision the area of land to which a Plaintiff claims rest on him, when the identity of the land is dispute is in issue, EDOZIE, JSC, held as follows:
“The question of the identity of the land in dispute being in issue will only arise when the defendant raises it in his statement of defence in a trial where pleadings were ordered and filed or the cross-examination of the adversary and his witnesses or in his own testimony where the trial is without pleadings.”
In the instant appeal where pleadings were ordered at the trial Court, the question of identity of land was never a question in issue. The learned trial judge was therefore right in his conclusion. I have no hesitation in agreeing with him in this regard. The first issue is therefore resolved in favour of the Respondent.
The second issue is whether the Respondent can be said to have produced sufficient, cogent and consistent evidence (oral and documentary) to entitle him to judgment in a case of title to land. This issue shall be taken alongside with the fourth issue. As a prelude, Appellant’s counsel had argued that the Respondent’s case ought to be dismissed because the documents of title tendered in support of the Respondent’s case was not tendered by the Respondent personally and the witness could not explain the purport of the documents tendered. He had relied on ALAO Vs. AKANO (supra) in support of his contention, and I have no hesitation in saying that his contention is without merit.
In the first place, there is no rule of law, known to me, which mandates that a party to a suit in Court, as in the instant case, the Respondent must personally be present in Court to testify and tender documentary evidence in support of his/her case, in as much as the party’s case can be proved or disproved by other persons other than the litigant and as done in the instant case, through documentary evidence. See CROSS RIVER STATE NEWSPAPERS CORP. VS. ONI & ORS (1995) 1 NWLR (pt. 371) pg.
32

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270; HON. JIBRIL ZUBAIRU & ANOR Vs. ILIYASU ISAH MOHAMMED & ORS (2009) LPELR – 5124 (CA) and ONYEME & ANOR vs. STEPHEN ONUMAEGBU & ANOR (2016) LPELR – 41092 (CA).
I have read the decision of the supreme Court in ALAO vs. AKANO and have not seen where in the judgment it was said that the reason why the Appellant’s case therein failed, as urged by the Appellant herein, was because the party in the case did not testify. Rather, not only was the Supreme Court emphatic on the reason for the failure of the Appellant’s case therein, the Plaintiff in that case had also testified in support of his case. In the words of EJIWUNMI, JSC;
“Now the fact that only one witness namely, the plaintiff was called in support of his case is not to be regarded as the reason for setting aside the judgment of the trial Court. In this regard, it must be borne in mind that Section 179(1) of the Evidence Act (1990), Laws of the Federation of Nigeria, Cap 12 provides that no particular number of witnesses shall be required to prove any fact except in some special circumstances.
It bears repetition to say that the case for the appellant failed because the 
evidence led at the trial did not prove what was alleged in the Statement of Claim. It must also be noted that several documents were tendered pursuant to the claim. But it must be borne in mind that admitted documents useful as they could be would not be much assistance to the Court in the absence of oral evidence by persons who can explain their purport.”
I must say that it is not enough for counsel to complain that the Respondent did not personally testify in Court and tender the required documents, if the Appellant’s contention is to be sustained; the Appellant ought to have shown to this Court the particular document(s) which require explanation to the Court and was not explained by the Respondent’s sole witness through his testimony at the trial, via his witness statement on oath or during cross examination. In as much as the case of the Respondent is hinged on documentary evidence, I am unable to agree with the Appellant that only the Respondent can testify and tender such documents in Court.
Again, it is the contention of the learned Counsel for the Appellant that the name endorsed on Exhibit C1, the document of title relied upon by the Respondent, Michael Christopher Onajirhevbe of No. 6, Oshokoya Street, Shomolu near Lagos is not the same as the Claimant herein, Olorogun Michael C. O. Ibru of No. 6, Louis Solomon Close, Victoria Island, Lagos. Contrary to the erroneous contention of the Appellant herein, I am satisfied with the reasoning and conclusion of the learned trial judge that there is nothing on record indicating that the two names endorsed on the documents do not refer to one and the same person, the Respondent herein. As a matter of fact, the Appellant did not lead any evidence whatsoever to show that the claimant on record is not the same person referred to in Exhibit C1. I must say that it is not enough for the Appellant to assert that the Claimant is not the one being referred to in Exhibit C1, there must be credible evidence led before the Court in support of the assertion. See Section 131 of the Evidence Act. The learned trial judge was therefore right when he held at pages 548 of the record of appeal as follows:
“On the preliminary issue raised by the learned counsel as to whether the Claimant is the same as the person stated in exhibit C1 because of the added title of Olorogun and the different addresses stated in the pleading for the Claimant. Firstly there is no indication before the Court that there is another entity different from the present Claimant contemplated by the exhibit C1, certainly no other person is in possession of these documents of title and none as shown his face or come forward. It therefore cannot be a mere coincidence that the initial of the present Claimant i.e. M.C.O. tallies with the first names of the purchaser in exhibit C1… I therefore find and hold in the absence of any evidence to the contrary that the purchaser in exhibit C1 and the Claimant herein is one and the same person.”
I will now turn to the main question under this issue, that is, “whether the Respondent led evidence in proof of his case as to warrant judgment and/or whether the Appellant is entitled to judgment”. It has been established in a long line of cases that the onus lies on the plaintiff who seeks a declaration of title to land, to establish by credible evidence that he is entitled to such relief, and he must rely on the strength of his own case and not on the weakness of the defence. See BANKOLE & ORS Vs. PELU

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& ORS (1991) LPELR – 749 (SC); ADEKANBI Vs. AYORINDE (1970) ALL NLR 330; FASIKUN II & ORS Vs. OLURONKE II & ORS (1999) 2 NWLR (Pt. 589) 1; ANIMASHAUN Vs. OLOJO (1990) LPELR – 491 (SC).
In the instant appeal, both the Appellant and Respondent have by their pleadings sought that they are entitled to be declared the rightful owner of the disputed land. The Appellant tendered three Exhibits, Exhibit D1, a purchase receipt dated 02/12/2000; Exhibit D2, a Certified True Copy of a judgment in Suit No. ID/216/77L delivered on 19th August 1983; while Exhibit D3 is a Survey Plan No. CK/LS/272. On the other hand, the Respondent tendered five Exhibits, including Exhibit C1, a registered Indenture dated 26th October, 1956; Exhibit C2, a registered Deed of Conveyance dated 10th December, 1955; Exhibit C3 is a Registered Indenture dated 19th February, 1954; Exhibit C4 is a Registered Deed of Conveyance dated 7th July, 1936; while Exhibit C5 is the judgment in Suit No. IK/51/66 delivered on 26th November, 1981. Summing up the evidence led at trial before her, the learned trial judge held as follows:
“Exhibit C7 is an Indenture dated 26th day of October, 1956 and registered as No. 43 at page 43 in Volume 158 of the Register of Deeds kept at the Lagos State Land Registry, Lagos. It was made between MESSRS BABSON EXPORTS & IMPORTS (WEST AFRICA) LTD, therein described as Vendors and MICHAEL CHRISTOPHER ONAJIRHEVBE IBRU, therein described as purchaser…
Attached to the above deed is survey plan No. A150/1931. In the recital of exhibit C1 is incorporated Deed of conveyance dated 10th day of December, 1955 registered as No. 37 at page 37 in Volume 149 of the Register of Deeds made between DANIEL OSAGIEDE EGBEGBE described therein as Vendor and the purchaser. The above stated incorporated deed is exhibit C2 between DANIEL OSAGIEDE EGBEGBE as Vendor and MESSRS BABSON EXPORTS & IMPORTS (WEST AFRICA) LTD, Claimant’s predecessor-in-title as purchaser. The survey plan attached to exhibit C2 is the exact survey plan attached to exhibit C1. Again the recital in exhibit C2 incorporated an Indenture of conveyance dated 27th day of May, 1955 made between SIGISMUND OLAYIWOLA SHOGBOLA as Vendor and DANIEL OSAGIEDE EGBEGBE, predecessor-in-title of Messrs Babson Exports & Imports (West Africa) Ltd. 
Exhibit C3 is not the incorporated deed in the recital of exhibit C2, Exhibit C3 is an Indenture dated 19th of February, 1954 and registered as No. 29 on page 29 in Volume 4 of register of Deed, between ABIGAIL ATINLOLA ILORI, therein described as Vendor and DANIEL OSAGIEDE EGBEGBE, therein described as purchaser …
Again the survey plan attached exhibit C3 is the same as that attached to C2, which is the same as that attached to C7, save that each of these survey plans are now made in the name of the purchaser in the respective deeds.
Exhibit C4 is the Deed of conveyance dated 7th day of July, 1936 and registered as No. 48 on page in Volume 445 of the register of Deed between DAVID SOGUNRO therein described as Vendor and ABIGAIL ATINLOLA ILORI described therein as Purchaser …” The survey plan attached is the same as that attached to all the previous Deeds i.e. exhibits C1, C2 and C3.
…, although there does seem to be a missing link between exhibits C2 and C3, in that the deed registered as No. 16 at page 16 in Volume 16 stated in the recital of exhibit C2 was not produced in evidence. There is also the issue that Daniel Osagiede Egbegbe would by 
the recital in exhibit C2 and the contents of exhibit C3 seem to have purchased the land from two vendors i.e. one Sigismund Olayiwola Shogbola and Abigail Atinlola Ilori. In spite of these lapses, the fact that the land conveyed by exhibits C1, C2, C3 and C4 are one and the same as shown by the survey plan attached to each of the deeds and the fact that by exhibit C4, the Claimant has traced its root of to a person who claimed to own the exact land as far back as 1936 makes the lapses to be of little or no significance. One of the ways of establishing title to land is by the exercise of numerous and positive acts of ownership over a sufficient length of time to warrant the inference that the person is the true owner of the land. The claimant by exhibits C1 to C5 would seem to have at this stage established a rebuttable presumption of ownership of ownership of the land in dispute…”
At pages 553 of the record, the learned trial judge continued as follows:
“I shall now examine Claimant’s exhibit C5 which is also a judgment of this Court delivered in respect of the same land in Suit No. IK/51/66 delivered on 26th day of November, 1981. The parties to

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the suit are the Claimant herein as claimant against Chief B.O. Ashamu as Defendant.
The Claimant has in the suit traced the original root of title to the land to the family of Aina Adeokun, down to David Sogunro to Emmanuel Ajaikaye to Madam Aina Atinlola Ilori who was said to have “bought the reversion of the Aina Adeokun family over the land in dispute for valuable consideration”. Evidence was adduced at the trial that David Sogunro, on the 7th day of July, 1936, as the then head of Aina Adeokun family, conveyed the land to Madam Ilori.
The Defendant in the said suit had claimed that the land originally belonged to the Ashade Family, as part of the land of such family. It was averred that the Ashade Family (otherwise known as OSHIUN Family) from time immemorial had exercised dominion over some undisturbed by anyone…
This honourable Court in the said judgment made “a Declaration in favour of the Claimant as the party entitled to a statutory right of occupancy in respect of all that piece or parcel of land as per exhibit A in the plan attached thereto and thereon edged RED, to wit, Plan No. A.150/1931”. The Court in coming to the 
above conclusion relied on Deeds of conveyance registered as No. 48 at Page 48 in Volume 445 of the register of deeds, conveying the land to Madam Abigail Atinlola Ilori by David Sogunro marked as exhibit D in the suit, Deed of conveyance dated 19th February, 1954 registered as No. 29 at Page 29 in Volume 4 of the register dated 10th December, 1955 conveying the land to Babson Export and Import Limited by Edegbe marked as exhibit B in the suit and Deed of Conveyance dated 26th October, 1956 and registered as No. 43 at page 43 Volume 158 of the register of deeds conveying the land as in plan No. A.150/1931 to the Claimant therein marked as exhibit A. In effect, the main plank of the judgment in that suit were exhibits A, B, C and D which conveyed at various times the land depicted in plan No. A.150/1931 attached hereto.
Exhibits A, B, C and D upon which the judgment in Suit No. IK/53/66 was predicated are the same as exhibits C4, C3, C2 and C1 respectively tendered in this case and to which the same survey plan No. A.150/1931 was attached. I cannot but find on the above evidence that the land, subject matter of this Suit forms part or falls within the land 
litigated on in suit No. IK/53/66.
The law is well settled that the findings of fact and ascription of probative value to evidence are primarily the duty of the trial Court which saw and heard the witness. Unless a finding of fact is seen to be perverse, an Appellate Court will not readily interfere or disturb such findings of fact by a trial Court, even if considering the facts and circumstances of the case, it would have reached a contrary conclusion or finding. An Appellate Court will only interfere where there are special circumstances justifying such, particularly where the findings are unsound or where the findings of fact do not relate to evidence led or are not in evidence, in which case the Court relied on facts which are not in evidence before it, that this Court will interfere as such. See: NWOBODO vs. ONOH & ORS (1984) LPELR – 2120 (SC) where the Supreme Court, per BELLO, JSC (later CJN) of blessed memory) held at page 37 to 38 that:
“It is settled law that a Court of Appeal does not interfere with the findings of fact of a Court of first instance which has the opportunity of seeing the witnesses and watching their demeanor unless it is satisfied that that Court has not made any use of that advantage or the finding is perverse and cannot reasonably be supported having regard to the evidence or the finding is an inference from the established facts so that an Appeal Court is entitled to draw its own conclusion or the trial Court has applied wrong principle of law…”
See also: OSHE vs. OKIN BISCUITS LTD (2010) 11 NWLR (pt. 1206) 482. Although as argued by the Appellant, there is a lapse between exhibits C2 and C3 tendered by the Respondent in proof of his case, I am in agreement with the learned trial judge that the missing link is of no significance or substantial as to fundamentally affect the evidence led by the Respondent in support of his case. Rather, as the learned judge rightly pointed out, there is credible evidence from the Exhibits tendered by the Respondent showing the flow of proprietary interest in the disputed property as far back as 1936 up till 1956 when it was transferred to the Respondent. The documents of title produced by the Respondent show that the Respondent acquired the property from Messrs Babson Exports & Imports (West Africa) Ltd, who acquired

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same from Daniel Osagiede Ebegbe via Exhibit C2.
But there seems to be a question as to who transferred the property to Daniel Osagiede Ebegbe because the Recital in Exhibit C2 appears to indicate that the property was acquired from one Sigismund Olayiwola Shogbola via deed of conveyance dated 17th May, 1955 and registered as No 16 in page 16 in Volume 16 while the Testatum indicates that the property was acquired by Daniel Osagiede Ebegbe from Abigal Atinlola Ilori via an Indenture dated 19th February, 1954 and registered as No. 29 on page 29 in volume 4. Though this suggests that Daniel Osagiede Ebegbe acquired the property from two persons, which is unusual; I am however of the view that this is not enough to displace the evidence on record that the disputed property belongs to the Respondent in the light of the overwhelming evidence on record, as the learned trial judge repeatedly noted in his judgment, the survey plans attached to the different deeds and Indenture tendered by the Respondent are the same that “each of these survey plans are now made out in the name of the purchaser in the respective deeds.” In addition, the exhibits tendered and admitted in the instant case by the Respondent are the same as the ones tendered in the judgment of the lower Court in Suit No. IK/53/66, the learned trial judge was therefore right when he concluded that he “cannot but find on the above evidence that the land, subject matter of this suit forms part or falls within the land litigated on in suit No, IK/53/66” wherein the Respondent was declared the owner of the disputed property.
With respect to the Appellant’s case, the learned trial judge held at pages 549 as follows:
” The Defendant has tendered exhibits D1, D2 and D3. Exhibit D1 is a purchase receipt dated 02/12/2000 issued by the Akinole and Oshiun family to Olawale Adekunle in the sum of one Million Naira for two plots of land at Ogungbeye streel Agidigbin. Exhibit D2 is a Certified True Copy of a judgment of this Court in suit No. ID/216/77L delivered on 19th August 1983. Exhibit D3 is the survey plan No. CK/LS/272 used in exhibit D2. On exhibit D1, generally the law is well settled that an unregistered instrument such as a receipt is not admissible in prove (sic) title but is certainly admissible to prove payment of money and couple with possession may give rise to an equitable interest enforceable by specific performance…
The 4th Defendant as DW1 gave evidence that the transaction for the purchase of the land was under native law and custom and that he was put in possession of the land in the present of witnesses upon purchase of same. DW1 however stated in his written deposition (i.e. evidence-in-chief) that “A deed of assignment was executed in my favour in the name of my son this is the deed of assignment…” and admitted under cross-examination that a deed of assignment was executed in his favour by his vendor in respect of the land. The said deed which had been filed earlier in this proceeding as an exhibit was tendered and admitted in evidence as exhibit C16(C). In other words DW1 gave conflicting and contradictory evidence of method of acquisition of the land by him. As pointed out by the learned counsel for the claimant, the name on both exhibits D1 and C16(c) is Mr. Olawale Adekunle. DW1 gave evidence that the person named therein is his son and that although he gave consideration for the land, the receipt was on his instruction issued in his son’s name.
Firstly, although it 
is not out of place that a parent would purchase a property in the name of one of his children, bearing in mind however the implication and legal incidents of a deed, the 4th defendant in spite of the different name on exhibit D1 could and should have insisted on having his own name put on exhibit C16(c). It would however seem in the light of exhibit C16(c) that the purchase of the land by the 4th Defendant was under English law and not native law and custom.
There is no indication on Exhibit C16(c) that the Governor’s consent was sought and obtained to same and neither was same registered…
It therefore must be the apparent defect on the exhibit C16(c) and the requirements of the English law on the validity of such sale that made the 4th defendant to decide not to tender and rely on the said deed. Still on exhibit C16(c), same was stated thereon to have been executed sometime in 1998, i.e. before DW1 allegedly purchased the property in year 2000, no reason was adduced for this obvious disparity in the dates on exhibit D1, i.e. purchase receipt and C16(C). … In view of all apparent defects in exhibit C16(C), same cannot be relied upon as

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having assigned the land in dispute either to the 4th Defendant or to his son named in the said document…”
Appellant’s counsel argued that the learned trial judge erred and misconceived the case of the Appellant when he held to the effect that the evidence led by the Appellant regarding proof of his entitlement to the disputed property are conflicting and contradictory by leading evidence on one hand that the transaction for the purchase of the land was under native law and custom and on the other hand, the Appellant stated in his written deposition that a deed of assignment was executed in his favour in the name of his son. I have gone through the entire testimony of DW1, particularly his Written Statement on Oath at pages 329 to 339 of the record of appeal, which serves as his evidence-in-chief, and I must say that there is no deposition contained therein whereby the Appellant stated that a deed of assignment was executed in his favour, the Appellant did not mention that any deed of conveyance was executed in his favour in respect of the disputed property. Rather, as the records of appeal show at pages 368 to 369, the particular deed of conveyance was tendered by the Respondent through the Appellant under cross – examination.
The deed of conveyance, Exhibit C16(C) which was tendered through cross-examination was not pleaded by any of the parties and no issue was joined on same. It is elementary law that evidence obtained in cross-examination but on facts not pleaded is as a matter of fact inadmissible. See OKWEJIMINOR Vs. GBAKEJI & ANOR (2008) 5 NWLR (pt. 1079) pg. 172 SC and OMISORE & ANOR vs. AREGBESOLA & ORS (2015) LPELR – 24803 (SC). To this extent, I agree with the Appellant that the findings of the learned trial judge on Exhibit C16(C), inadmissible evidence are perverse and hereby discountenanced and expunged from the judgment of the lower Court.
I must say that save for the findings of the learned trial judge on Exhibit C16(C) which has been discountenanced by this Court, the other findings of the trial judge with respect to the evidence led by the Appellant in proof of his case, are unimpeachable and ought not be disturbed. Exhibits D1, D2, D3 and D4 are insufficient to establish the Appellant’s entitlement to the disputed property. The trial judge had correctly found and eld that Exhibit D1, a purchase receipt is inadmissible to prove title but only sufficient to prove payment of money in respect of the purchased property. See NNUBIA Vs. A-G, RIVERS STATE (1999) 9 NWLR (pt. 593) 82; USMAN vs. GARKE (1999) 1 NWLR (Pt. 587) 466 and ALIMI vs. OBAWOLE (1998) 6 NWLR (Pt. 555) 591. The learned judge also found that Exhibit D2, a judgment relied upon by the Appellant as constituting estoppel cannot be used as such, while Exhibits D3 and D4 predicated on Exhibit D2 cannot be used to prove the Appellant’s title and/or disprove the Respondent’s proprietary interest.
This takes me to the next issue relating to estoppel. It is the contention of the Appellant’s counsel that the learned trial judge was in error when he held that the Appellant’s case is defeated by estoppel. He argued that estoppel was not pleaded by the Respondent; therefore, not in issue in this case. Let me quickly say that a close look at the relevant pleadings highlighted by the Respondent’s counsel at paragraph 4.3.7 to 4.3.9 of the Respondent’s brief of argument leaves no one in doubt that estoppel was indeed in issue in this case. In response to paragraphs 8 and 9 of the Respondent’s Amended Statement of Claim, the Appellant had averred in his Further Amended Statement of Defence and Counter Claim, at paragraph 15 as follows:
“With further reference to paragraph 8 of the statement of claim the Defendant avers that his vendors of the Oshiun-Akinole family were neither aware of the suit IK/53/66 nor were they parties thereto and further that the alleged suit has no relevance to the land in dispute.”
In response to the above averment the Respondent pleaded in paragraphs 2 and 6 of the Reply and averred as follows:
“2. In further and specific reply to paragraph 14 of the amended statement of Defence, the claimant will contend that the alleged vendors of the 4th Defendant were aware and participated in suit No: IK/53/66 and the Public Notice on the outcome of the said suit was published in the Punch of Thursday the 2nd of June 1988 Vol. 12 No 15, 517 at page 14. The claimant will rely on the said publication.
6. In answer to the 4th Defendant’s counter claimants, the claimants’ states that he is the one entitled to possession by virtue of the decision of this honourable Court in Suit 
No. IK/53/66 which is still valid and subsisting in relation to the land in dispute.”

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It is well established in a long line of cases that the plea of estoppel is not required to be pleaded in a particular form. In CHINWENDU vs. MBAMALI & ANOR (1980) 3-4 SC 21, the Supreme Court held as follows:
“Undoubtedly the old rule was that estoppel by record and deed must be pleaded where, as here, there was an opportunity to do so; under modern practice it is not, however, necessary to plead estoppel in any particular form so long as the matters constituting the estoppel are stated in such a manner (as has been done in the pleadings of the respondents in these proceedings) to show that the party pleading relies upon it as a defence or an answer. (See also sanders (orse. Saunder) v. Sanders (orse. Saunders) (1952) 2 All ER 767 per Lord Merriman, P. at 769 where the learned president observed: – “When an estoppel is asserted it should, whether by familiarity or pleading, as in the High Court or in some other appropriate way be brought to the notice of the tribunal alleged to be affected by it and supported by evidence of the matters from which the estoppel is said to arise…” See also GBEMISOLA Vs. BOLARINWA & ANOR (2014) LPELR – 22463 (SC); OHIAERI Vs. AKABEZE (supra). I am convinced that the averments contained in the Respondent’s pleadings have disclosed sufficient particulars to explain to the Appellant the basis of which he is being estopped in relation to the disputed property, it is certainly not the Appellant’s complaint that he was taken by surprise by the plea of estoppel raised by Respondent and considered by the learned trial judge. To the contrary the records show that the plea, though not expressly stated in the pleadings as such, was raised at the earliest opportunity and parties joined issues on same.
Even if conceded that the plea was not specifically pleaded by the Respondent, I am unable to displace same merely on that ground alone. Instead, I shall adopt the reasoning of the Supreme Court in CHINWENDU Vs. MBAMALI (supra) to the effect that the Courts should show reluctance in disallowing estoppel even though it has not been specifically pleaded.
In a plea of this nature, the Court must be satisfied that: (1) the parties or their privies in both the earlier case and the case in which it is raised are the same; (2) the judgment relied upon is valid, subsisting and final; (3) the claim or issue in dispute in the proceedings are the same; (a) the subject matter of litigation in both cases is the same; (5) the Court that decided the previous suit is a Court of competent jurisdiction. See: ABUBAKAR Vs. B.O. & A.P. LTD(2007) 18 NWLR (Pt. 1066) Pg. 319 and ABIOLA & SONS BOTTLING CO. LTD Vs. SEVEN-UP BOTTLING CO. LTD & 2 ORS (2012) LPELR – 9279 (SC). In the appeal before us, Appellant’s counsel has argued that the Respondent has woefully failed to prove similarity of parties and subject matter necessary for a valid plea of estoppel. He therefore concluded that the decision of the trial judge on this issue is perverse. I have earlier noted that the disputed property in the present case is the same as the one in Suit No. IK/53/66, the question that remains to be considered is whether the parties are the same.
It is noteworthy that “parties” in a case, do not as a matter of fact refer to the named parties in the suit. For the purpose of plea of estoppel, parties include privy, which is defined as person having a legal interest in an action or subject matter of litigation. As the trial judge rightly pointed out, parties include privies in blood, such as an heir and an ancestor; privies in representation, such as executor and administrator; privies in estate, such as grantor and grantee, lessor and lessee; privies in contract; privies in law, such as husband and wife. It is in this regard that the learned trial judge held at pages 556 to 557 of the record of appeal as follows:
“In other words our Courts have recognized and held parties to be privies where they found on the evidence that the parties in the previous suit either prosecuted or defended the action in the same interest as the parties against whom the judgment is sought to be relied upon as constituting estoppel even though the latter was not a party in the said suit. In other words the doctrine of estoppel will operate to prevent a party from litigating a cause of action or an issue where it is shown that the party in the earlier case was a representative in interest. In exhibit C5, some of the averments upon which the Court made its findings and based its judgment is that the Defendant in the

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suit traced his root of title to the Ashade family also known as Oshiun family, in effect, the Defendant in the said suit defended the interest of the Ashade family also known as the Oshiun family and the Court in its judgment found that the root of title of the Defendant therein not established rather it found for the Claimant.
The plea of res judicata applies not only to points upon which the Court was actually required by the parties to form an opinion and pronounce judgment, but also to every point which properly belonged to the subject of that litigation and which the parties exercising due diligence might have brought forward at the time. I therefore find and hold that the Defendant in Suit No. IK/53/66 is a privy of the 4th Defendant’s predecessor-in-title i.e. the Akinole and Oshiun family…”

In my view, the above conclusion is unimpeachable and I adopt it as mine. The fact that the Appellant’s predecessor(s)-in-title was not a named party in the earlier suit does not preclude a finding and holding that they are privies of the party in that suit as they have direct interest in the outcome of the said suit, therefore parties. See: BALOGUN Vs. AFOLAYAN (2002) FWLR (Pt. 85) Pg. 331 at 334. As a result, the learned trial judge rightly held that the Appellant is stopped by the outcome of Suit No. IK/53/66 from challenging the Respondent’s title to the disputed property herein.
Having made a clear finding that on the preponderance of evidence led by the parties at the trial Court, the Respondent has proved his case, I therefore have no hesitation in reaching the conclusion that the learned trial judge was right to have granted possession of the disputed property to the Respondent. The third and fifth issues are therefore resolved in favour of the Respondent.
On the whole therefore, this Appeal lacks merit and is hereby dismissed. The judgment of Y. A. Adesanya, J. (Mrs.) of the Lagos State High Court delivered on the 25th day of April, 2008 is hereby affirmed. Costs of N200,000.00 is awarded to the Respondent.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: My Lord, Tijjani Abubakar, JCA, made available to me the draft of the comprehensive judgment which has just been delivered.
Having also read the Records of Appeal and the briefs of argument filed and exchanged by the parties, I agree with the manner in which the issues for determination were resolved in the leading judgment. I adopt the reasons and conclusion therein as mine and equally join in dismissing the appeal.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the draft judgment of my learned brother TIJJANI ABUBAKAR, JCA and I am in complete agreement with the reasoning and conclusion reached therein and I have nothing more to add.
To this extent, I too hold that this appeal lacks merit and is hereby dismissed. The judgment of the Lagos State High Court, coram ADESANYA, J., delivered on the 25th of April, 2008 is hereby affirmed. I abide by the order as to costs.

Appearances

Kikelomo Siji Fasole with him, O. J. Fasanmi-For Appellant

AND

I. A. Ovbagbedia with him, S. T. Ajayi-For Respondent

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