ADAMS & ANOR v. FASASI & ORS

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UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State Coram: Nicol-Clay, J. delivered on 12th March 2015 in SUIT NO. LD/95/2002: CHIEF FATAI PELUJO & 3 ORS v. MR. M. A. FASASI & 5 ORS. The Appellants were Claimants before the lower Court and they claimed the following reliefs:
1. A declaration that the large parcel of land known and called Langbasa Town situate and being at Eti Osa Local Government Area of Lagos State of Nigeria belongs to Langbasa Family Council.
2. The sum of N200, 000 as special and general damages for trespass committed by the Defendants on Langbasa village, Langbasa on diverse dates particularly in December, 2001.
3. A perpetual injunction restraining the Defendants from further trespassing on or dealing with or claiming any portion of Langbasa village.
The Respondents, as Defendants before the lower Court counterclaimed as follows:
1. For a Declaration that the Claimants are not the owners of the land at Langbasa and the purported Langbasa Family Council has no more interest, title or right over the developed land at Langbasa,
2. For a Declaration that 4th -6th Defendants who are in possession are the persons entitled to deal on behalf of Langbasa Community with the land at Langbasa in Eti-Osa Local government Area.
3. An Injunction restraining the Claimants by themselves, their Servants, or Agents, Privies or otherwise however from dealing with the land at Langbasa and from parading themselves as official or members of the defunct Langbasa Family Council.
Pleadings were filed and exchanged, issues joined and the matter was subjected to a full blown plenary trial at which documentary and testimonial evidence was adduced. In its judgment, the lower Court dismissed the Appellants case and entered judgment for the Respondents on their counterclaim. The Appellants were dissatisfied and appealed against the said judgment by Notice of Appeal filed on 23rd April 2015. The scarified judgment of the lower Court is at pages 587-601 of the Records while the Notice of Appeal is at pages 602-608 of the Records.
The Records of Appeal was compiled and transmitted and the parties filed and exchanged briefs of argument. The Appellants filed their brief of argument on 27th May 2016, but it was deemed as properly filed on 29th June 2016. The Appellants further filed a Reply Brief on 9th February 2018 but deemed as properly filed on 14th February 2018. The extant Respondents Brief was filed on 5th May 2017. At the hearing of the appeal, Lanre Ogunlesi, Esq., SAN, learned senior counsel for the Appellants and Mrs. Morenike Ojo, learned counsel for the Respondents urged the Court to uphold their respective submissions in the determination of the appeal.
The Appellants distilled four issues for determination as follows:
ISSUE 1
Whether having regard to the decisions of the Lagos State High Court in Suit No. LD/329/91 Between Rear Admiral Mufutau Elegbede, Alhaji Anofiu Adesanya and Alhaji Lateef Ajenishe v. Chief L. Dosunmu & Anor and the Appeal in CA/L/285/99 between the same parties in respect of the owner of the Land in Langbasa Town, the subject matter of this appeal and which matter is now pending at the Supreme Court in Suit No. SC.26/11, the learned trial Judge was right to hold that the Appellants have not proved their root of title to the land.
ISSUE 2
Whether the learned trial Judge was right not to determine who as between Langbasa Family Council and Langbasa Community is the owner of the land in Langbasa Town but was determining who had a better title to the land and whether the Appellants could obtain Judgment in this Suit based on the admission by the Respondents.
ISSUE 3
Whether the learned trial Judge was right when she held that the Appellants did not establish the identity and the area of the land in dispute as to be entitled to Judgment.
ISSUE 4
Was the evidence of the Appellants sole witness contradictory and inconsistent as to make it unsafe for the learned trial Judge to rely on it
On their part, the Respondents formulated two issues for determination, namely:
ISSUE ONE
Whether the trial Court was right in refusing to grant the declaration of title sought for by the Appellants/Claimants in respect of the land at Langbasa Town.
ISSUE TWO
Whether the trial Court was right in refusing to grant the injunction sought for the Appellants in respect of the land at Langbasa Town.

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I will proceed to consider the submissions of learned counsel on the issues as distilled by them and then resolve the respective contentions of learned counsel en bloc.
SUBMISSIONS OF THE APPELLANTS COUNSEL
It was argued that the germane issue was whether the land called Langbasa Town belongs to Langbasa Family Council. It was submitted that the decision in SUIT NO. LD/329/91 (Exhibit COF2) settled the issue that the land at Langbasa Town belongs to Langbasa Family Council and that the said decision constituted res judicata and issue estoppel between the Appellants and the 4th-6th Defendants at the lower Court. The case of MICRO-LION INTERNATIONAL (NIG.) LTD v. GADZAMA (2014) 3 NWLR (Pt. 1394) 213 was referred to.
It was stated that this Court affirmed the judgment in Exhibit COF 2 in APPEAL NO. CA/L/285/99 (Exhibit COF 3) and that there is a further appeal to the Supreme Court, but that while that appeal is pending the Respondents in order to circumvent the findings of the Courts in Exhibits COF2 and COF3, claimed that they had done away with Langbasa Family Council and replaced the same with Langbasa Community. It was opined that a judgment remains valid and binding until set aside, and that the Respondents cannot foist a fait accompli on the Court. The case of AYODELE v. SPRING BANK PLC (2014) 4 NWLR (Pt. 1396) 93 at 127 was relied upon.
The Appellants contend that the allegation that Langbasa Family Council had been replaced with Langbasa Community was not proved. Furthermore, that the evidence tendered by the Respondents at the lower Court shows that the other families of Langbasa Town were not at the meeting where the 1st-3rd Respondents were appointed as managers of all the land in Langbasa Town and that the four signatories appointed were all from Elejigbo Family to the exclusion of the other three families of Langbasa. It was asserted that the judgments in Exhibits COF 2 and COF 3 having settled the issues agitated by the parties, it was erroneous for the lower Court to have refused to be bound by the judgments. The Appellants maintained that the parties were bound by the previous judgments as their privies were involved in the case and the issue was the same.
It is the further submission of the Appellants that the contest on which issues were joined before the lower Court was as to who had the right to deal in the land in Langbasa Town, whether the Appellants Langbasa Family Council or the Respondents Family Community. It was contended that the lower Court failed to pronounce and resolve this issue as it did not appreciate the main bone of contention between the parties and deviated from the issues formulated for determination at the pre-trial conference, holding that the sole issue was whether the Claimants were entitled to the reliefs sought, as though the action was one for declaration of title. The Appellants posited that the radical issue for determination was the effect of Exhibits COF2 and COF3 on the matter. It was stated that the lower Court ought to have determined whether the said judgment were binding on the parties. The failure to resolve the issue it was stated occasioned a miscarriage of justice. The case of OKONJI v. NJOKANMA (1991) 7 NWLR (Pt. 202) 131 was cited in support.
The Appellants argue that the disputed land is known and identifiable and so there was no need for a survey plan. It was opined that the parties were agreed as to the size of the land being 75.8 hectares and that the lower Court was not right to hold that the Appellants did not prove the area of the land. The case of AJAGUNGBADE III v. ADEYELU II was called in aid.
In concluding their argument, the Appellants contend that the lower Court did not identify and set out the contradictions and inconsistencies in the testimony of the Appellants witness that made it unsafe to rely on the evidence adduced. Contrariwise, the Appellants submit that the evidence of the Appellants witness was in line with the averments in the Amended Statement of Claim.
SUBMISSIONS OF THE RESPONDENTS COUNSEL
The Respondents submit that the lower Court was right in observing that the Appellants failed to establish any of the five ways of proving ownership to land. It was posited that the reliance by the Appellants on the judgments Exhibits COF 2 and COF 3 as constituting estoppel was not right as they did not satisfy all the pre-conditions for the applicability of estoppel. The five requirements for the plea of estoppel as laid down in the case of MAKUN v. F.U.T. MINNA (2011) 6-7 SC (Pt. V) 32 were referred to and it was stated that the requirement of the decision

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relied upon being final was not met as there is still pending an appeal to the Supreme Court against the decision in Exhibit COF 3. It was further contended that even if the decision is final, the parties in the present matter were neither parties nor privies to the parties in Exhibits COF 2 and COF 3.
The Respondents state that what is binding in the decision of a Court and which can constitute estoppel is the ratio decidendi in the case. The case of ADESOKAN v. ADETUNJI (1994) 5 NWLR (Pt. 346) 540 was relied upon. It was opined that the decision in Exhibit COF2 was not for declaration of title to land but for trespass and damages. The Respondents maintained that even though in Exhibit COF2 comments and statements were made to the effect that title to land in Langbasa was vested in the Langbasa Family Council, it did not amount to a determination of the issue of title to land in Langbasa against the Elejigbo Family. The Respondents stated that the lower Court dismissed the Appellants’ case because the Appellants failed to adequately plead and prove their root of title as their reliance on Exhibits COF 2 and COF 3 did not suffice.
The Respondents argue that the lower Court rightly refused to grant the injunction sought by the Appellants. It was stated the Appellants case was that since the excision of the 75.8 hectares of Land in Langbasa the Langbasa Family Council had granted or sold various parcels of land to various people. That it was on the basis of this that the lower Court held that the testimony of the Appellants witness was contradictory and inconsistent such that it was unsafe for a Court to rely on it. It was posited that the Appellants’ case was that Langbasa Town was almost fully developed and that in that case the Appellants had no title to the areas already disposed of by Langbasa Family Council, such that an injunction could not be granted in respect of an unidentified portion of land. It was maintained that the identity of the disputed land is a sine qua non to the success of a claim in a land matter. The case of ELIAS v. OMO-BARE (1982) 5 SC 25 was cited in support. It was conclusively submitted that the Appellants having failed to prove the identity of the disputed land, the decision of the lower Court refusing to grant the injunction sought should be affirmed.
APPELLANTS REPLY ON LAW
The Appellants maintain in their Reply Brief that the judgment in Exhibit COF 3 is a final judgment and remains valid and subsisting despite the fact that the Respondents have appealed against the judgment to the Supreme Court. The case of MAKINDE v. ADEOGUN (2008) LPELR-4462 (CA), UGWU v. ONYEKWELI (2008) LPELR-8452 (CA) at 11-12, AYOADE v. SPRING BANK PLC (2000) 4 NWLR (Pt. 1396) 93 at 127 and NATIONAL HOSPITAL, ABUJA v. NATIONAL COMM. C.O.E. (2014) 11 NWLR (Pt. 1418) 309 at 333 were called in aid.
The Appellants maintain that title was an issue in Exhibit COF 2. That the reliefs claimed in the said action were damages for trespass and injunction and that where trespass and injunction are claimed, title is automatically put in issue. The case of AJIBULU v. AJAYI (2014) 2 NWLR (Pt. 1392) 483 at 495 and 505 and ADEYEFA v. BAMGBOYE (2014) 11 NWLR (Pt. 1419) 520 at 546 were referred to. It was therefore opined that the Court rightly decided in Exhibit COF 2 that title to the land was vested in Langbasa Family Council. The Appellants therefore contend that the root of title of the Appellants having been previously determined in Exhibit COF 2 and confirmed in Exhibit COF 3, there was no need proving the root of title again because one of the five ways of proving title had already been satisfied.
On the question of the identity of the land, the Appellants stated that Exhibits COF 5, COF 7, COF 8 coupled with the reliefs claimed by the Appellants clearly show that the identity of the land was not in dispute or in contention before the Court. It was conclusively submitted that once the identity of the land is known to the parties, there is no need for a survey plan. The cases of AREMU v. ADETORO (2007) 16 NWLR (Pt. 1060) 244 at 262 and OSHODI v. EYIFUNMI (2000) 13 NWLR (Pt. 684) 298 at 334 were relied upon.
RESOLUTION
It is desirable to give a provenance of this matter as garnered from the pleadings and evidence on Record. The Appellants and the 4th-6th Defendants at the lower Court are from Langbasa Town. Following the excision of 75.8 hectares of land acquired by the Lagos State Government and the return of the said land to Langbasa Town, the 4th-6th Defendants at the lower Court commissioned the 1st-3rd Defendants at the

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lower Court to prepare a comprehensive layout plan for the excised land. The Appellants sued, contending that the 4th-6th Defendants all being from the Elejigbo Family of Langbasa Town, could not alone instruct the 1st-3rd Defendants as legal interest in Langbasa land is vested in Langbasa Family Council (comprising the four families of Langbasa Town) as has been upheld in previous Court judgments. The Appellants averred as follows in paragraphs 4, 5, 6, 7, 8, 9 and 11 of the Amended Statement of Claim:
4. Claimants aver that there were four original settlers who settled in four different quarters in Langbasa Village namely: Osho, Thin-Olugbe, Ojota and Kobishese. Later the descendants of these four settlers decided unanimously to vest the legal interest in Langbasa land unto one unit known as Langbasa Family Council.
5. The claimants state that this arrangement had been recognized in the decision of Hon. Justice M. A. Ope-Agbe in Suit LD/329/91 Rear Admiral M. A. B. Elegbede and others versus Chief L. A. Dosumu and others. This decision was confirmed by the Court of Appeal Lagos Division in CA/L/851/98. The two judgments shall be founded upon at the trial of this suit. They are hereby pleaded.
6. Claimants aver that from time immemorial their ancestors had been in occupation and possession of all Langbasa land on behalf of themselves and as representatives of the descendants of all the four settlers and had exercised ownership rights over the land in dispute and such acts of ownership include selling, leasing of many plots of land in the area in dispute.
7. Claimants aver that sometimes ago the 1st defendant with his servants entered into a portion of the land in dispute, cleared and cut some economic trees on the said land and destroyed some wall fences and started surveying the said portion of land.
8. Claimants avert [sic] that the defendants have no authority and approval of Langbasa Family Council to enter Langbasa Village land and that none of them is a member of Langbasa Family Council.
9. The claimants aver that the fourth to seventh defendants have no approval to enter into an agreement with the 1st-3rd defendants with a view to develop the whole of Langbasa Village land and they were not authorized to raise a loan of N5 Million Naira to prepare an approved layout plan of Langbasa Village land.
11. That the Guardian Newspaper of April 10th 2000 which shows the purported plan of development of Langbasa Town bears only the signatures of members of ELEJIGBO Chieftaincy Family of Langbasa one of the four settler family in Langbasa who can only represent one section of Langbasa and cannot represent the other three sections of the community. The Guardian Newspaper is hereby pleaded and would be relied upon at the trial of this action.
The case made out by the Respondents is that Langbasa Family Council was defunct and that the new entity created is Langbasa Community and that the 4th-6th Defendants on behalf of Langbasa Community engaged the services of the 1st-3rd Defendants to develop the Layout Plan for the excised land. That as descendants of Elejigbo, the 4th-6th Defendants have inalienable right over Langbasa land. The averments in paragraphs 2, 5, 6, 7, 8, 9 15 and 16 of the Further Amended Statement of Defence and Counterclaim read as follows:
2. Contrary to paragraphs 1, 3 and 5 of the Amended Statement of Claim, the Defendant aver that:
(a) That last Chairman and Secretary of Langbasa Family Council before it became defunct were the 4th and 6th Defendants respectively in this suit.
(b) Most of the land at Langbasa had been fully developed and built upon by several owners with vested interest.
(c) The suit referred to in Paragraph 5 of the Amended Statement of Claim in CA/L/851/98 is subject to an appeal still pending at the Supreme Court of Nigeria in Appeal No. SC 26/2011 at Abuja.
5. The original founder and settler of Langbasa Village was ELEJIGBO who came from Ile-Ife. The subsequent settlers were settled by Ejigbo to different quarters namely:-
(i) Oyelaja Olugbo at Olugbe Quarters
(ii) Arobieke Daranijo at Ojota Quarters
(iii) Osho at Osho Quarters
(iv) Awoda, Danda, Olowo Idi Ewuro, Ayeni and Igbona Lomoyin at Osho Quarters.
6. The 6th Defendant Alhaji Waheed Agbomabini is the Head of Elejigbo Chieftaincy Family and Chairman of Langbasa Community.
7. The defunct Langbasa Family Council was originally formed by Elejigbo Chieftaincy Family. It is not a legal person. It is not registered and its existence came to an end after the Judgment in the case of Elegbede & Ors

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vs. L. A. Dosunmu & Ors.
8. The Defendants aver that in the past, Elejigbo Chieftaincy Family inadvertently used Langbasa Family Council to deal with some properties in Langbasa.
9. The Defendants aver that due to the growing development and prominence of Langbasa, all the numerous families and the residents came together in 1997 under one umbrella and in accordance with the custom of Langbasa it is administered, controlled and managed till date under the name and title LANGBASA COMMUNITY.
15. The Defendants aver that the 4th-6th Defendants including late Chief Amida Adedeji Kareem on behalf of Langbasa Community engaged the services of the 1st to 3rd Defendants to carry out the State Government directives.
16. The Defendants aver that the 4th-6th Defendants are descendants of Elejigbo and have inalienable right over Langbasa land. They are also members of Langbasa Community and in possession of their respective land owning.
The Appellants in proof of their entitlement as the body to deal with land in Langbasa town relied on the judgments in Exhibits COF 2 and COF 3. In dismissing the Appellants case, the lower Court, inter alia, held that the Appellants did not prove the root of title claimed and that mere tendering of the judgments did not suffice as the Appellants were required to establish one of the five ways of proving ownership of land.
The Appellants relying on Exhibits COF 2 and COF 3 contended that the lower Court was not right when it held that the Appellants did not prove their root of title. The five ways of proving title to land as laid down in the locus classicus of IDUNDUN v. OKUMAGBA (1976) LPELR 1431 (SC) 1 at 23-26 are as follows:
1. Proof by traditional history
2. Proof by production of documents of title
3. Proof by acts of ownership
4. Proof by acts of long possession
5. Proof by possession of connected and adjacent lands.
See also FAGUNWA v. ADIBI (2004) 17 NWLR (Pt. 903) 544 and MADU v. MADU (2008) 2-3 SC (Pt. II) 109.
It is settled law that a previous judgment obtained by a party in respect of a parcel of land which is in dispute in a subsequent proceeding will properly constitute an act of ownership and possession in an action for declaration of title on the part of the successful party, notwithstanding that the defendant in the subsequent suit was not a party in the previous suit. See ULUBA v. SILLO (1973) 1 SC 37, CHINWENDU v. MBAMALI (1980) 3-4 SC 31 and SATUMARI v. APAGU (2017) LPELR (43282) 1 at 7-8. So in the peculiar circumstances of this matter, the judgment in Exhibits COF2 and COF3 qualifies as acts of possession which is one of the five ways of proving ownership of land. It remains so irrespective of whether it in fact constitutes estoppel or not.
In AJUWA v. ODILI (1985) 2 NWLR (Pt. 9) 710, the Supreme Court held that a previous judgment, though it may not binding as estoppel per rem judicatam, strengthens the case of a party to establish acts of possession in their favour. See also AGBAISI v. EBIKOREFE (1997) 4 SCNJ 747 and KIDAGUMA v. ABOJA (2012) LPELR (14352) 1 at 33-34. The lower Court was therefore in error when it held that the Appellants did not prove their root of title as the same could not be proved by just tendering of Exhibits COF 2 and COF 3. Be that as it may, the crux of this matter is whether the decision in Exhibits COF 2 and COF 3 constitute estoppel.
The plea of estoppel is generally employed as a shield for the protection of a defendant, but it can also be employed as a sword by a plaintiff in appropriate cases. See ABALOGU v. S.P.D.C. (NIG.) LTD (2003) LPELR (18) 1 at 30. In this case, the Appellants employ estoppel as a sword, their contention being that it has been decided in Exhibits COF 2 and COF 3 that land in Langbasa Town is vested in Langbasa Family Council. Even though the Respondents claim that Langbasa Family Council is defunct and that their actions in instructing the 1st -3rd Defendants at the lower Court is on behalf of the new body Langbasa Community, both the Respondents pleadings and Exhibits COF 4 and COF 7 do not bear out this assertion. I reiterate that the 4th-6th Defendants are all from the Elejigbo Family of Langbasa, one of the four families that make up Langbasa Town. In paragraphs 8 and 16 of the Further Amended Statement of Defence which I have already reproduced, the Respondents averred that their Elejigbo Chieftaincy Family in the past, inadvertently used Langbasa Family Council to deal with some properties in Langbasa and that as descendants of Elejigbo they have inalienable right over Langbasa Land.

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Contrary to the averment in paragraph 15 of the Further Amended Statement of Defence and Counterclaim that the 4th-6th Defendants commissioned the 1st-3rd Defendants on behalf of Langbasa Community, Exhibit COF 7 is evidence acknowledging receipt of payment from the Elejigbo Family, not Langbasa Community, as deposit for a layout plan. Equally, the newspaper publication, Exhibit COF 4, on sale of plots in the excised land was signed exclusively by members of Elejigbo Family. Undoubtedly it raises a red flag as to whether there was indeed a body known as Langbasa Community or if the 4th-6th Defendants were merely acting pursuant to their claimed inalienable right as descendants of Elejigbo over Langbasa Land.
The principle of estoppel was enunciated by Idigbe, JSC in FADIORA v. GBADEBO (1978) LPELR (1224) 1 at 12 -14in the following words:
“Now, there are two kinds of estoppel by record inter partes or per rem judicatam, as it is generally known. The first is usually referred to as cause of action estoppel and it occurs where the cause of action is merged in the judgment, that is, transit in rem judicatam [see King v. Hoare (1844) 13 M & W 495 at 504]. Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter. They are precluded from relitigating the same cause of action. There is, however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, issue estoppel arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. [See Outram v. Morewood (1803) 3 East 346]. Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law. However, for the principle to apply, in any given proceedings, all the preconditions to a valid plea of estoppel inter partes or per rem judicatam must apply, that: (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same (per se or by their privies).
See also ODJEWEDJE v. ECHANOKPE (1987) LPELR (8049) 1 at 42, OSUNRINDE v. AJAMOGUN (1992) LPELR (2819) 1 at 39-41, AJIBOYE v. ISHOLA (2006) LPELR (301) 1 at 16, EBBA v. OGODO (2000) LPELR (983) 1 at 27-35, MAKUN v. F.U.T. MINNA (2011) LPELR (15514) 1 at 26-27 and OYEROGBA vs. OLAOPA (1998) LPELR (2878) 1 at 24.
The estoppel relied upon by the Appellants is issue estoppel, based on their contention that it was decided in Exhibits COF 2 and COF 3 that land in Langbasa Town vests in the Langbasa Family Council and that the Elejigbo Family had not dealt with land in Langbasa exclusively as the sole owner.
In Exhibit COF 2, the High Court of Lagos State, Coram: Ope-Agbe, J., held, inter alia, as follows on page 19 of the judgment:
The picture that one sees is that transactions involving land in Langbasa village was carried on by the accredited representatives of Langbasa Family Council of which 2nd and 3rd plaintiffs are members and after Exhibit O by the attorneys. There is no evidence proffered before me to show any sale of and by the Elejigbo family, there is no doubt from the evidence before me that the Elejigbo family is one of the first settlers of Langbasa village and it is one of the ruling houses invited by the Lagos State Government in 1979 for discussions on the appointment of a new Bale of Langbasa out of the four portions or areas of Langbasa village but I have no evidence that Elejigbo family had dealt with the land Langbasa exclusively as the sole owner to the exclusion of the other areas or portions.
The findings in Exhibit COF 2 were affirmed by this Court (Oguntade, Chukwuma-Eneh and Sanusi, JJCA) [all later JJSC] in Exhibit COF 3. In the said Exhibit COF 3, Oguntade, JCA stated as

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follows at pages 8-9 of the Judgment:
The lower Court in its judgment at pages 521 to 523 held:
Plaintiffs gave the impression that the Council referred to in the letter is Elejigbo Family Council but Exhibit E which referred to the meeting of 30/12/90 to which 1st defendant was invited vide Exhibit D is a letter from Lamgbasa Family Council and by Exhibit E Lamgbasa Family Council gave 1st defendant notice to stop digging and if he would not negotiate with the Council not with Elejigbo family. Exhibits D & E are consistent with the evidence of 1st defendant that the land in dispute belongs to Lamgbasa Family Council. See case of Fashanu v. Adekoya (1974) 1 ALL NLR 32 at 41.
See also Exhibit G-G2, H, J-J2, K-K1, M, S and U documents emanating from Lamgbasa Family Councilor its predecessor and Exhibit N & O which I will deal with later on and the cases of:
(i) Dibie Ajuwa & Ors. v. Odili (1985) 2 NWLR (Pt. 9) 710 at 711;
(ii) Amakor v. Obiefuna (1974) 1 ALL NWLR at 336;
(iii) Ogunfaolu v. Adegbite (1986) 5 NWLR (Pt. 43) 549 at 550 ratio 5;
(iv) Bamgbade & Ors. v. Balogun (1994) 1 NWLR (Pt. 323) 718 at 724-725.
On the totality of evidence before me the plaintiffs have failed to establish ownership of the land in Lamgbasa village. In other words they have failed to establish possession of the land in dispute. On the contrary the documentary evidence before me shows that Lamgbasa Family Council is the owner of the land subject-matter of this suit. See case of Eze v. Igiliegbe (1952) 14 WACA 61 the facts are that the plaintiffs claimed on account of rents collected by the defendant on a piece of land which the claimants alleged belonged to the people or his town as a whole. The defendant denied that the land was communal land and asserted that it belonged to his quarter. The West African Court of Appeal held that the trial Court was right to presume as a matter of customary law that the land belonged to the community as a whole. The onus was on the defendant to establish that his section has title to the land, but he had failed to rebut the presumption. Applying the above case to the facts of this case, the Elejigbo family claim to own all land in Lamgbasa village, they agree that the village is made up of four areas or portions who constitute the original settlers of which they are one, the onus is on them to establish that the land belong exclusively to the Elejigbo family to the exclusion of the other three families, I hold that they have failed to do this.
The above is a clear rejection of the case of the plaintiffs. The evidence available left the trial judge no other option.
There therefore exists concurrent findings of facts in Exhibits COF 2 and COF 3 that the Elejigbo Family does not exclusively own land in Langbasa and that the land in Langbasa is vested in Langbasa Family Council. The Respondents however contend that issue estoppel will not apply as the conditions for its applicability are not present since the judgment is not final in view of the pendency of an appeal against the judgment to the Supreme Court and that the parties in the present action are not privies to the parties in the earlier action.
Now, two of the conditions which must be present for a valid plea of estoppel per rem judicatam to lie are that the decision relied upon to support the plea of issue estoppel must be final and that the parties must be the same per se or by their privies: FADIORA v. GBADEBO (supra). The Respondents contention is that there is pending before the Supreme Court an appeal against the judgment in Exhibit COF 3 and that the judgment is therefore not final. Dealing with the issue of finality of judgment for the purpose of establishing a plea of res judicata, Idigbe, JSC stated thus in FADIORA v. GBADEBO (supra) at 14:
Dealing with the issue of Finality of judgment for the purpose of establishing successfully a plea of res judicata, the learned authors of Spencer Bower & Turner on the Doctrine of Res Judicata (1969 Ed.) in Art 164, P. 134 state as follows: A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent decision, review or modification by the tribunal which pronounced it.
The decision of this Court in Exhibit COF 3 was delivered on

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31st July 2000. There is nothing to be further judicially determined or ascertained by this Court in Exhibit COF3. The decision is absolute, complete and certain and cannot be further reviewed or modified by this Court. It is therefore a final decision. I am unable to agree with the Respondents that the said decision is not final.
On the question of parties or privies, the plaintiffs in Exhibit COF 2 are from the Elejigbo Family. They prosecuted the action for themselves and on behalf of the Elejigbo Family. The 4th-6th Defendants at the lower Court who brought the 1st-3rd Respondents herein on the land are all members of the Elejigbo Family. I have already held that even though they purport to be acting for a body they called Langbasa Community in their dealings with the 1st-3rd Defendants, the averments on their inalienable rights to deal with land in Langbasa as members of Elejigbo Family coupled with the evidence on record, notably Exhibits COF 4 and COF 7, show that they were carrying on as members of Elejigbo Family. Therefore, it cannot be seriously contended that the 4th-6th Defendants are not privies of the plaintiffs and appellants in Exhibits COF 2 and COF 3. Indeed, given the fact that the said action was fought in a representative capacity, the 4th-6th Defendants though not named eo nomine as parties in the action are actually parties since they are among those the named parties represented. See LADEJOBI v. OGUNTAYO (2005) 7 WRN 22 at 41 and AHANEKU v. EHIRIM(2016) LPELR (40508) 1 at 16-17.
The Appellants in this matter maintain the action for themselves and on behalf of Langbasa Family Council. Though the 2nd Defendant/Respondent in Exhibits COF 2 and COF 3 is a corporate body, its presence on the land was through the 1st Defendant/Respondent in the said Exhibits and who was the alter ego of the 2nd Defendant/Respondent. The case of the Defendants/Respondents in Exhibits COF 2 and COF 3 which was upheld by the Court is that the 1st Defendant/Respondent therein acquired the land from the Langbasa Family Council and on which land he put his company (the 2nd Defendant/Respondent) to carry on its business. So the 1st Defendant/Respondent in Exhibits COF2 and COF 3 traced his presence on the land to the Langbasa Family Council and his acquisition of the land under customary law from the Langbasa Family Council was held valid by the Court in Exhibits COF 2 and COF 3.
In dealing with the terminology privies in relation to the doctrine of res judicata in COKER vs. SANYAOLU (1976) LPELR (877) 1 at 21, Idigbe, JSC stated:
Privies are of three classes and they are:
1. Privies in blood (as ancestor and heir).
2. Privies in law (as testator and executor) and
3. Privies in estate as vendor and purchaser, lessor and lessee
Undoubtedly, the Appellants herein (Langbasa Family Council) are privies in estate to the Defendants/Respondents in Exhibits COF 2 and COF3, given the existence of the vendor and purchaser relationship between them.
In the circumstances, Exhibits COF 2 and COF 3 satisfied all the preconditions for the applicability of the doctrine of estoppels per rem judicatam. The issue of land being vested in the Langbasa Family Council had been decided by the Courts and the decision in Exhibits COF2 and COF3 was binding on the parties and their privies. See UWAKWE v. ODOGWU (1989) LPELR (3446) 1 at 38 and SHAIBU v. BAKARE (1984) LPELR (3033) 1 at 17. The Appellants validly used the said decision as a sword in prosecuting the matter and it was also available to them as a shield to defend the Respondents counterclaim. The lower Court was in error when it failed to give effect to uphold and enter judgment for the Appellants based on issue estoppel.
Before I leave this aspect of this judgment, I must state that from the Records, the claim by the Respondents that Langbasa Community was created to take over the defunct Langbasa Family Council is a ruse. Langbasa Community seems to be a contraption created by the Elejigbo Family to take care of the inadvertence, averred to in paragraph 8 of the Further Amended Statement of Defendant and Counterclaim, in dealing with land in the name of Langbasa Family Council. The evidence abound that Langbasa Community is a nom de plume or nom de guerre for Elejigbo Family (See Exhibits COF 4 and COF 7).
The Appellants further complain about the failure of the lower Court to enter judgment in their favour on the ground that the identity and area of the land was not established. At the outset of this judgment, I set out the reliefs claimed by the Appellants and the reliefs claimed by

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the Respondents in their counterclaim. The reliefs claimed are in respect of the land at Langbasa and in respect of which injunction was claimed by both parties.
It cannot be doubted that the identity of the disputed land is known to both parties. It is effulgent from the Records that the parties all referred to the 75.8 hectares of land excised by the Lagos State Government as being the land in which the 1st-3rd Defendants were commissioned to produce a layout plan. Furthermore, there is also Exhibit COF 4 being the newspaper publication made by the Respondents, showing the approved layout and in which they gave guidelines for sales of plots in the excised 75.8 hectares. Where the identity of disputed land is known to the parties the requirement to prove the identity of the land ceases to be a necessity. See AKINTERINWA v. OLADUNJOYE (2000) LPELR (358) 1 at 34, OKONKWO v. ADIGWU (1985) 1 NWLR (PT 4) 694, MABERI v. ALADE (1987) 2 NWLR (Pt. 55) 101 and ATANDA v. ILIASU (2012) LPELR (19662) 1 at 42-43. Let me observe that the lower Court having held that the area of land to which the claim relates was not proved and therefore could not enter judgment for the Appellants still entered judgment on the counterclaim for the Respondents in respect of an area of land, the identity of which it held was not proven and unknown. It is elementary that the Respondents as counterclaimants had the burden of proving their counterclaim. The position which the lower Court took was clearly a contradiction in terms. Howbeit, the foregoing observation does not in any way detract from my finding that the disputed land was well known to the parties and the question of proof of the identity did not arise.
As we gradually approach the terminus for this judgment let me state that there is nothing magical in a Court employing the words contradictions and inconsistencies in describing the testimony of a witness. Where a Court finds testimony contradictory or inconsistent, the Court has a duty to show what the contradictions and inconsistencies are, in the event of the decision being tested on appeal. At page 600 of the Records the lower Court held as follows:
I have considered the contradictions and inconsistencies in the Claimants witness evidence, this made it unsafe for the Court to rely on the evidence adduced.
What are the contradictions and inconsistencies that made it unsafe to rely on the testimony of the witness? It is left to speculation and conjecture as the lower Court did not elucidate on the contradictions and inconsistencies. The lower Court had a bounden duty to explicitly set out the contradictions and inconsistencies since it is trite law that it is not every contradiction in evidence that would affect the credibility of a witness. The contradiction has to be substantial, weighty and material: AIYEOLA v. PEDRO (2014) LPELR (22915)1 at 47-48.The perceived contradiction and inconsistency is unknown, not to talk of its materiality, substantiality and weightiness. The lower Court was therefore in error when it held that it was unsafe to rely on the evidence adduced by the Appellants witness.
The harbour looms in sight. This judgment will now be berthed at the quays. The summation of the totality of the foregoing is that this appeal is meritorious. The concomitance of my having held that the principle of issue estoppel avails the Appellants necessarily connotes that the Appellants action succeeds while the Respondents counterclaim must fail. The appeal therefore succeeds and the judgment of the lower Court is hereby set aside. In its stead, judgment is hereby entered for the Appellants in the following terms:
1. It is hereby declared that the large parcel of land known and called Langbasa Town situate and being at Eti-Osa Local Government Area of Lagos State of Nigeria belongs to Langbasa Family Council.
2. The sum of N50, 000.00 is awarded as general damages for trespass committed by the Respondents on Langbasa Village land on diverse dates particularly in December, 2001.
3. An order of perpetual injunction is granted restraining the Respondents from further trespassing on or dealing with or claiming any portion of Langbasa Village.
4. The Counterclaim of the Respondents is dismissed.
5. The Appellants are entitled to N200, 000.00 as costs of this appeal.
TIJJANI ABUBAKAR, J.C.A.: My learned brother Ugochukwu Anthony Ogakwu, JCA granted me the privilege of reading this judgment before now. I am in agreement with the entire reasoning and conclusion and adopt the Judgment as my own. I have nothing extra to add.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA just delivered with which I agree and adopt as mine. I have nothing more to add.