THE REGISTERED TRUSTEES OF PEOPLE CLUB OF NIGERIA v. THE REGISTERED TRUSTEES OF ANSAR-UD-DEEN SOCIETY OF NIGERIA & ORS (2019)

THE REGISTERED TRUSTEES OF PEOPLE CLUB OF NIGERIA v. THE REGISTERED TRUSTEES OF ANSAR-UD-DEEN SOCIETY OF NIGERIA & ORS

(2019)LCN/13187(CA)

In The Court of Appeal of Nigeria

On Friday, the 3rd day of May, 2019

CA/L/749/2012(CONSOLIDATED)

JUSTICE

TOM SHAIBU YAKUBU justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL justice of The Court of Appeal of Nigeria

GABRIEL OMONIYI KOLAWOLE justice of The Court of Appeal of Nigeria

Between

THE REGISTERED TRUSTEES OF PEOPLE CLUB OF NIGERIAAppellant(s)

AND

1. THE REGISTERED TRUSTEES OF ANSAR-UD-DEEN SOCIETY OF NIGERIA
2. THE ATTORNEY-GENERAL OF LAGOS STATE
3. THE ATTORNEY-GENERAL OF EDO STATE
4. THE REGISTRAR OF TITLES LAGOS STATERespondent(s)

RATIO

METHODS OF PROVING TITLE OF OWNERSHIP TO LAND

It is settled law that in a claim for declaration of title to land, in order to succeed, a party seeking the declaration of title to land must prove by credible evidence one or more of the five methods of proving title to land, namely:

a. Evidence of traditional history of title; b. Production of genuine and valid documents of title; c. Numerous acts of ownership; d. Acts of possession over a long period of time and or e. Acts of possession of adjacent land long enough to make it probable that the owner of the adjacent land is also the owner of the land in dispute. Thus, both the Respondents as Claimants and the Appellants, as Counter Claimants, had open to them one or more of these five methods to prove their title to the land in dispute and the law is that proof of any one of these methods by credible evidence would be sufficient to ground an action for declaration of title to land. See Idundun V. Okumagba (1976) 6 – 10 SC 48. See also Arum V. Nwobodo (2013) AII FWLR (Pt. 688) 870 @p. 893; Nruamah V. Ebuzoeme (2013) AII FWLR (Pt. 681) 1426; Kano V. Maikaji (2013) AII FWLR (Pt. 673) 1856 @ pp. 1868 – 1869; Ojah V. Eviawure (2000) FWLR (Pt. 57) 163; Okorie V. Onyejewu (2001) FWLR (Pt. 41) 1820; Morenikeji V. Adegbosin (2003) 8 NWLR (Pt. 825) 612; Egbo V. Agbara (1997) 1 NWLR (Pt. 481) 293 @ p.303; Ewo V Ani (2004) 1 SC (Pt. 11) 115 @ p. 133; Romaine V. Romaine (1992) NWLR (Pt. 235) 650. In Ezukwu v. Ukachukwu (2000) 1 NWLR (pt 642) 657 @ p. 679 it was reiterated inter alia thus:
“A claimant of title to land, of course, need not rely on more than one of the five methods. No. Where, however, he relies on a pleaded method or way as a root of his title, then, if the pleaded root fails the alleged acts of ownership or possession derivative of the root necessarily ought to fail. Why? Because the title or the root of title needs must be, firstly established before the exercise of the rights of ownership may be exercisable. PER GEORGEWILL J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE EVALUATION OF EVIDENCE BY THE TRIAL COURT

It is the law that it is only where the Court below had not properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led, and had thus failed in this primary duty, that an appellate Court would have the legal justification to intervene and re evaluate the evidence on the printed record in order to make appropriate findings of facts in line with the dictates of justice to the parties. So, until an appellate Court arrives at such a conclusion the need for re – evaluation of evidence does not arise since an appellate Court has no business re evaluating the evidence and interfering with correct findings of a trial Court. See Williams V. Tinubu (2014) All FWLR (Pt. 755) 200. See also Amuneke V. The State (1992) NWLR (Pt. 217)347; Sule Asariyu V. The State (1987) 4 NWLR (Pt. 67) 709; Nkebisi V. State (2010) 5 NWLR (Pt. 1188) 471; Woluchem V. Gudi (1981) 5 SC. 291; Enang V. Adu (1981) 11-12 SC. 25; Abisi & Ors. V. Ekwalor & Anor (1993) 6 NWLR (Pt. 302) 643; Igapo V. The State (1999) 12 SCNJ 140 @ p. 160; Amala V. State (2004) 12 NWLR (Pt. 888)520.
However, in carrying out its re – evaluation the law is that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, and once a trial Court discharges that duty on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an appellate Court will not interfere once the conclusions reached is correct, even if the reason which is the pathway to the conclusion or finding turns out to be wrong. This is so because in law an appellate Court is not so much concerned with the correctness or wrongness of the reasons adduced by a trial Court for its decisions or conclusions but rather more concerned with whether the decision reached or conclusion arrived at was correct or wrong; that is the law. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC., had pronounced with finality on this vexed issue, thus:
An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere….
See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.
It is thus the law that an appellate Court which had not seen the witnesses testify and observed their demeanor in the witness stand should respect the views of the trial Court and not to readily substitute its own views for that of the trial Court except where it is shown that the conclusion or finding reached by the trial Court below was perverse and for this an appellate Court will readily intervene to re-evaluate the evidence in the printed record if it is shown that the conclusions reached or findings made by the Court below on the proved evidence before it do not flow from such proved facts or runs contrary to such proved facts and thus perverse. In such a case, the appellate Court is in good a position as the trial Court to intervene to re-evaluate the evidence in the printed record to draw necessary inference and make proper findings on the proved and admitted facts in the record as the justice of the case requires but which the trial Court had failed to do. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ P. 19. See alsoOwor V. Christopher (2010) All FWLR (Pt. 511) 962 @ 992; Sogbamu V. Odunaiya (2013) All FWLR (pt. 700) 1249 @ P. 1302; Mini Lodge V. Ngei (2010) All FWLR (Pt. 506) 1806 @ Pp. 1820 -1821; Saeed V. Yakowa (2013) All FWLR (Pt. 692) 1650 @ P. 1681. PER GEORGEWILL J.C.A.

BIOBELE ABRAHAM GEORGEWILL J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the High Court of Lagos State, Coram: T. Ojikutu – Oshode J., in Suit No. LD/4749/1994: The Registered Trustees of People Club of Nigeria V. The Registered Trustees of Ansar – Ud – Deen Society of Nigeria & Ors delivered on 16/12/2011, wherein the claims of the Appellant as Claimant against the 1st Respondent as Defendant were dismissed while most of the reliefs of the 1st Respondent as Defendant/Counter Claimant against the Appellant as Defendant to Counter Claim were granted and relief four of the Counter Claim was struck out.

The Appellant was peeved with the said judgment and had appealed against it to this Court vide an original Notice of Appeal filed on 19/12/2011 on four grounds of appeal at pages 1114 – 1117 of the Record of Appeal. The Record of Appeal was duly transmitted to this Court. Subsequently, the Appellant filed its amended Notice of Appeal on 24/1/2017 but was deemed properly filed on 6/3/2017. The 1st Respondent also filed its Notice of Cross Appeal on 5/5/2016 on two grounds of appeal. The

Appellants brief was filed on 28/12/2017 but deemed properly filed on 6/3/2018. The 1st Respondents brief was filed on 2/7/2018 but deemed properly filed on 24/9/2018. The 2nd & 4th Respondents brief was filed on 29/8/2018 but deemed properly filed on 24/9/2018. The Appellants reply brief to the 1st Respondent was filed on 17/9/2018 but deemed properly filed on 24/9/2018. The Appellants reply brief to the 2nd & 4th Respondents brief was filed on 17/9/2018 but deemed properly filed on 24/9/2018.

At the hearing of this appeal on 16/4/2019, both parties were absent and were also not represented by counsel though they were duly served with hearing notices. The Appellant was served with hearing notice on 11/4/2019 through its counsel. The 1st Respondent was served with hearing notice through its counsel. The 2nd & 4th Respondents were served with hearing notice on 11/4/2019 through their counsel. The 3rd Respondent, who did not file any brief was served was also with hearing notice on the same date. Consequently, both the appeal and the cross appeal were deemed as having been argued on the briefs of the

parties pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules 2016.

By a Writ of Summons filed on 21/10/1994 and an amended statement of claim filed on 18/4/2002, the Appellant as Claimant before the Court below had claimed against the Respondents as Defendants, the following reliefs, namely:
1. A declaration that the Claimant having in 1990 complied with all the requirements stipulated for the grant of consent to the sub-lease of the property in dispute, the Claimant was immediately entitled to be given the consent to the said sub-lease and that the failure, unreasonable delay or refusal to grant the same amounted to unlawful misuse and abuse of power.
2. An order directing the Lagos State Government by its appropriate officer to grant its consent to the sub-lease granted to the Claimants and already submitted to the 3rd Defendant.
3. A declaration that the Claimant is entitled to a Statutory Right of Occupancy in respect of the property described as Plots 303 and 304 situate and lying at No. 37, Ajao Road, Surulere, Lagos for the term of 90 years from 1st of June, 1982.
4. An order rectifying the Register of Titles in

respect of Title N. Mo2430 by removing the name of the 1st Defendant as proprietors and/or entering thereon the Claimants said interest as holder of a term of 90 years.
5. An injunction restraining the 1st Defendant, their agents, servants and privies from further acts of trespass on the said land.
6. N1, 375, 000.00 being special and general damages for trespass committed by the 1st Defendant on the 30th September, 1994 on the Claimants property at 37, Ajao Road, Surulere, Lagos.

Upon service, the 1st Respondent as 1st Defendant before the Court below filed a Statement of Defense and Counter – Claim on 16/11/1994, which was subsequently amended and an Amended Statement of Defense and Counter Claim was filed on 19/112004, wherein the 1st Respondent counter claimed against the Appellant the following reliefs, namely:
1. Declaration that the Counter-Claimants, the Registered Trustee of Ansar – ud -deen Society Nigeria are the lawful owners and therefore entitled to possession of the property described as Plots 303 and 304 situate and lying at No. 37 Ajao Road, Surulere, Lagos.
2. An order granting possession to the 1st

Defendant/Counter Claimant of the property described as Plots 303 and 304 situate and lying at No. 37 Ajao Road, Surulere, Lagos.
3. A perpetual injunction against the Defendants in the counter claim that is the Registered Trustees of the peoples Club of Nigeria, by themselves, their servants, agents and/or privies from committing acts of trespass on the landed properly known as Plot Nos. 303 and 304 Ajao Road Surulere, Lagos State. Nigeria subject matter of this suit and which land is covered by Land Certificate Title No. M02530.
4. The sum of N5, 000, 000. 00 per annum as damages for use and occupation of the one acre land and lying at No. 37, Ajao Road, Surulere, Lagos from the 29th March, 1993 till possession of same is handed over to the 1st Defendant/Counter-Claimant.
5. The sum of N2, 375, 000.00 special and general damages particulars of which are as stated in paragraph 50 above. Interest at the rate of 21% per annum from the date hereof until final judgment and thereafter at the rate of 5% until final payment.

The Appellant by an application dated 12/2/1998 sought to join the 2nd & 4th Respondents as Defendants, which

application was granted by the Court below and the pleadings of the Appellant as well as that of the 1st Respondent were consequently so amended with the leave of the Court below. The 3rd Respondent as 3rd Defendant filed its Statement of Defense on 4/1/2000. The 2nd and 4th Respondents as 2nd and 4th Defendants filed their Amended Statement of Defense on 4/9/2001. In Reply to the pleadings of the Defendants the Claimant filed a Reply on 30/3/2001. The Parties also filed written statements on oaths of their witnesses. The stage was then set for the chequered and epic legal battle that has lasted for all of 25 years as I write this penultimate judgment in this case. At the trial, the Appellant as Claimant in proof of its claims called one witness, who testified as CW1, one Prince Gabriel Nwandibe Okoye Eze and tendered several documents admitted in evidence as Exhibits and was thoroughly cross examined by the other parties. The 1st Respondent as Defendant/Counter Claimant in proof of its counter claim and defense to the claims of the Appellant called two witnesses, who testified as DW1, one Alhaji Surajudeen Ishola Awe and DW2, one Alhaji Abass Kolawole

Koiki and tendered several documents admitted in evidence as Exhibits. The 2nd and 4th Respondents as 2nd and 4th Defendants called one witness who testified as DW3, one Mr. Abayomi Kehinde and identified some of the Exhibits already tendered by the parties. The 3rd Respondent did not call any witness and its pleading was rightly discountenanced by the Court below as having been abandoned on the authority of Federal Capital Territory Development Authority v. Naibi (1990) 3 NWLR (Pt. 138) 270. See pages 83, 121 – 125, 128 – 136, 175 – 179, 152-161, 191-192, 201 – 202, 226 – 233, 492-593, 595 – 614 and 1091 1113 of the Records of Appeal.

At the trial, the Appellant as Claimant did not cross examine any of the DW1, DW2 and DW3 and did not also file any final written address, having as it appears abandoned further participation in the proceedings before the Court below. The 1st Respondent as 1st Defendant as well as the 2nd & 4th Respondents as 2nd & 4th Defendants filed their respective final written addresses, which were subsequently adopted by their counsel and the Court below proceeded to deliver its judgment on 16/12/2011, wherein it

dismissed the claims of the Appellant and entered judgment in favor of the 1st Respondent/Counter Claimant granting most of its counter claims against the Appellant while striking out relief four of the 1st Respondent, hence the appeal by the Appellant and the cross appeal by the 1st Respondent/Cross Appellant. See pages 1091 – 1113 in Volume III of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The gist of the case of the Appellant, as Claimant, as can be gleaned from its pleadings and evidence, oral and documentary led at the trial was that the property in dispute originally belonged in 1962 to a limited liability company known as Matter Brothers (Cinemas) Ltd and its interest was registered under the Registration of Titles Act as Title No. MO2530. Later the property became vested in Chief E. K. Clark but by the operation of the Public Officers (Forfeiture of Assets) Order 1977, the property was transferred to the Bendel State Government which in turn leased same to the Appellant before the promulgation of Decree No. 39 of 1992 which returned some of the properties of Chief E. K. Clark to him. The Appellant after the sale of the property to it by

the Bendel State Government and in consonance with the Land Use Act sought the consent of the Lagos State Governor to the transaction but same was delayed by the Governor. The basis of the case of the Appellant was that the property in dispute was sold to the Appellant by the Bendel State Government before the alleged return of the property to Chief E. K. Clark in 1992.

On the other hand, the gist of the case of the 1st Respondent/Cross Appellant as 1st Defendant/Counter Claimant as can be gleaned from its pleadings and evidence, oral and documentary led at the trial was that by virtue of the Public Officers (Forfeiture of Assets) Order 1977 contained in the Supplementary to Official Gazette No. 10 volume 64 of 10/3/1997, the land in dispute described in the said Order as one-acre plot at Surulere was one of the assets of Chief Edwin Clark forfeited to the Federal Government and which vested title to the land in the Bendel State Government. By virtue of the Forfeiture of Assets (Release of Certain forfeited Properties, Etc) Decree 39 of 1992 promulgated on 14/9/1992 and published in the Federal Government of Nigeria Official Gazette No. 34

volume 79 of 14/9/1992, the landed properties forfeited by Chief Edwin K. Clark under Legal Notice No. 13 of 1977 including the land in dispute were released to Chief Edwin K. Clark. By a Deed of Assignment dated 29/3/1993 between Chief Edwin Clark and the 1st Respondents, Chief Edwin Clark transferred all his beneficial interests in the land in dispute to the 1st Respondents and that there was no prior contract of sale between the Bendel State Government and the Appellants but merely an agreement for a sublease entered into when the Bendel State or Edo State Government, the 3rd Respondent ceased to have any proprietorship interest, if at all, let alone any reversionary interest in the land in dispute with the promulgation of Decree No. 39 of 1992 on 14th September, 1992 and therefore had nothing to pass unto the Appellant.

On the part of the 2nd & 4th Respondents as 2nd & 4th Defendants, the gist of their case as could be gleaned from their pleadings and the evidence led before the Court below as in the printed record was that the crux of the Appellants case was that having complied with the requirements stipulated by the Lagos State

Government for the grant of consent to the sublease of the property in dispute to the Bendel State Government, it was immediately entitled to be granted the consent to the said lease and that the failure, unreasonable delay or refusal to grant the same amounted to unlawful misuse and abuse of power, when in fact the Appellant failed to fulfill the requirements required of it for the purposes of processing and perfecting its application for consent and when it was also subsequently discovered that the Bendel State Government had no valid title in the property in dispute to pass unto the Appellant, which was capable of being granted consent by the Governor of Lagos State.

ISSUES FOR DETERMINATION
In the Appellants brief, four issues were distilled as arising for determination from the eight grounds in the Amended Notice of Appeal, namely:
1. Was there a contract of sale between the Appellant and the Edo State Government in 1986 and 1990 as to take the property in dispute out of the operation of Decree 39 of the 14/9/1992 tendered as Exhibit C3? In other words whether the Appellant has acquired any proprietary interest in the property in

dispute prior to the promulgation of Decree No. 39 of 14/9/1992 – Exhibit C3? (Distilled from grounds 1, 2 & 6)
2. Whether the fact that 1st, 2nd and 4th Respondents witnesses were not cross-examined by the Counsel of the Appellant during the trial derogated from the quality of the case of the Appellant as contained in the pleadings, the documentary and oral evidence of the Appellant as to make the Court below to ignore same in the consideration of the case of the Appellant and thereby give preference to the case of the 1st, 2nd and 4th Respondents? (Distilled from grounds 4, 5 & 8)
3. Whether the Appellant fulfilled all the conditions for the grant of the Governors consent to the transaction between the Bendel State Government and the Appellant? (Distilled from ground 3)
4. Whether the 1st Respondent made out a case for the award of damages? (Distilled from ground 7)

In the 1st Respondents brief, three issues were distilled as arising for determination in this appeal, namely:
1. Whether the Appellants produced any valid document of title before the trial Court to establish their claim for a declaration

that they are entitled to a Statutory Right of Occupancy for the term of 90 years in respect of the land in dispute? (Distilled from grounds 1, 2 & 3)
2. Whether the Court below was right to have held that the evidence of the 1st Respondents witnesses were un-contradicted and uncontroverted as the 1st, 2nd and 4th Respondents witnesses were not cross examined by the appellants counsel during the trial and delivered judgment in favor of the 1st Respondents despite the appellants pleadings, oral and documentary evidence adduced by the appellants sole witness? (Distilled from grounds 4, 5 & 8)
3. Whether the 1st Respondents successfully proved their counter claim before the trial Court to entitle them to a declaration of title to the land in dispute and the award of damages? (Distilled from grounds 6 & 7)

In the 2nd & 4th Respondents brief, issue three in the Appellants brief was adopted as the sole issue arising for determination in this appeal, namely:
Whether the Appellants from the totality of documentary evidence and pleadings before the Court below, the Appellants fulfilled all

conditions for the grant of Governors consent to the transaction between the Bendel State Government and the Appellants?

In the Appellants reply to the 1st Respondents brief, the Court was urged to discountenance and strike out all the three issues as distilled therein on the grounds that they do not arise from any of the grounds of appeal, and are narratives and incomprehensible. I have taken a closer look at the three issues for determination as distilled in the 1st Respondents brief, and I find the contentions by the Appellants counsel unsustainable, in that these issues are rather apt, concise and flowing directly from the grounds in the amended notice of appeal filed by the Appellant are therefore, competent and I so hold.

Having held as above, I have taken time to review the pleadings and evidence of the parties and considered the submissions of counsel for the parties in their respective briefs in the light of the findings in the judgment of the Court below and it does appear to me that the issues one and three for determination as distilled in the 1st Respondents brief are the apt and proper

issues arising for determination in this appeal. I find the couching of the issues in the Appellants brief to be nebulous and argumentative while issues one and three in the Respondents brief are more precise and apt and cover all the four whooping issues distilled in the Appellants brief. I shall therefore, consider the 1st Respondents issues one and two as issue one in this appeal together with the Appellants issues one, two and three and the 2nd & 4th Respondents sole issue. I shall then consider the 1st Respondents issue three as issue two in this appeal together with the Appellants issue four.

ISSUE ONE
Whether the Appellants produced any valid document of title before the trial Court to establish their claim for a declaration that they are entitled to a Statutory Right of Occupancy for the term of 90 years in respect of the land in dispute? AND Whether the Court below was right to have held that the evidence of the 1st Respondents witnesses were un-contradicted and uncontroverted as the 1st, 2nd and 4th Respondents witnesses were not cross examined by the

appellants counsel during the trial and delivered judgment in favor of the 1st Respondents despite the appellants pleadings, oral and documentary evidence adduced by the appellants sole witness?

APPELLANTS COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Appellant had submitted that it is a common ground between the Appellants and the Respondents that the property in dispute was vested in the Bendel State Government via the forfeiture order of the Federal Government as contained in the Legal Notice 13 of 1977 better known as Public Officers (Forfeiture of Assets) Order 1977 and that it was by virtue of the said order that the property in dispute hitherto owned by Mr. E. K. Clark (being one Acre Plot at Surulere Lagos) was forfeited and eventually vested in the Bendel State Government who thereafter was registered as owner thereof under Land Certificate Title No. MO2530 and contended that there was also no dispute between all the parties that by virtue of the Forfeiture of Assets (Release of Certain Forfeited Properties, etc) Decree No. 39 of 1992 which came into force on the 14/9/1992 the properties of

Mr. E. K. Clark which had earlier been forfeited were released to him and urged the Court to hold that since the import and intendment of Section 2 of Decree 39 was that all the rights and liabilities of the Bendel State Government will continue to attach to the properties as at the date of release of Decree 39 of 1992, there was in existence the right of a third party, the Appellant, by way of interest, obligation and liabilities of the Bendel State Government in the Property in dispute. Counsel referred to Section 2 of the Release Order in Decree 39 of 1992 and relied on Savannah Bank Nig. Ltd V. Ajilo (1989) 1 NWLR (Pt. 97) 305 @ pp. 327 – 328.

It was also submitted that on the evidence it was clear that the Bendel State Government duly entered into a transaction with the Appellant before Decree 39 of 1992 was promulgated to re – vest the property in dispute in Chief E. K. Clark and contended that the Court below having properly appraised itself of the evidence arrived at a perverse finding when it neglected the binding simple contract in respect of the land in dispute between the Appellant and the Bendel State Government as far back as 22/12/1986 by

way of Form 1C, as in Exhibit C2 & C3, and held erroneously that there was no contract between the Bendel State Government and the Appellant in 1986 in respect of the land in dispute and to set aside this erroneous finding and to make proper finding of facts flowing from the proved evidence and allow the appeal and set aside the judgment of the Court below. Counsel relied on Owoniboys Technical Services Ltd V. U.B.N Ltd (2003) 15 NWLR (Pt. 844) 545; Bola Omoniyi V. J. A. Alabi (2004) 6 NWLR (Pt. 870) 551; Dr. N. A. Iragunima V. River State Housing and Property Development Authority (2003) 12 NWLR (Pt. 834) 427; Brossette Manufacturing Nig. Ltd V. M/S. Ola Ilemobola Ltd & Ors (2007) 14 NWLR (Pt. 1053) 109.

It was further submitted that on the existence of a valid simple agreement of sale by the Bendel State Government to the Appellant it was clear that at the date of promulgation of Decree 39 of 1992, the property in dispute was no more in the possession or ownership of the Bendel State Government as to come within the purview of Decree 39 and therefore, be the subject of release to Mr. E. K. Clark and contended that in law a person cannot give out

what he does not have and urged the Court to hold that the Appellant had become the owner of the land in dispute before Decree 39 of 1992 was promulgated and an estate had become vested in the Appellant and therefore, the Governor of Lagos State cannot refuse to recognize the interest already validly vested in the Appellant by the Bendel State Government. Counsel relied on Gbadamosi & Ors V. Akinloye & Ors (2013) 15 NWLR (Pt. 1378) 455; W. J. Rossiter & Ors V. Daniel Miller (1898) 3 App. Cas 1124; Owoniboys Technical Services Ltd V. U.B.N Ltd (Supra); Bola Omoniyi V. J. A. Alabi (Supra).

On his issue two, learned counsel for the Appellant had submitted by the way the Court below proceeded in the consideration of the evidence it prejudged the case of the Appellant before considering the case of the Respondents and contended that the said approach was fatally as not being in sync with the proper approach to evaluation of evidence of parties in that the Court below had irreversibly taken a firm position against the Appellant that the evidence of the 1st Respondent and the other Respondents having not been shaken under cross – examination ought

to be believed and acted upon against the position of the evidence of the Appellant and urged the Court to hold that what was required of the Court below was to put the evidence of the parties on the proverbial imaginary scale as to weigh which evidence to believe or disbelieve, which the Court below failed to do, and was thus grossly unfair to the Appellant since at the time it held that the evidence of the 1st Respondent was uncontroverted and unchallenged, it had made up its mind about the case against the Appellant. Counsel relied on Odofin & Ors V. Mogaji & Ors (1978) NSCC 275; Alhaji J. Aromire & Ors V. Awoyemi (1972) the ANLR 105.

On his issue three, learned counsel for the Appellant submitted that it is of importance to recognize that the function of the Lagos State Governor with respect to the grant of consent to a transaction under the Land Use Act is purely statutory and contended that having regard to the obligation on the Bendel State Government to obtain the consent of the Governor of Lagos State to the lease of the land in dispute to the Appellant, the Lessor had proceeded by Exhibit C7 to forward Exhibit C2 and C3 to the

Governor of Lagos for the purpose of obtaining the Statutory Consent and urged the Court to hold that as at December, 1986 the Bendel State Government had informed the Lagos State Government of its intention by seeking consent to the leasehold transaction with the Appellant. This is the first stage of the process expected of the Lessor the Bendel State Government, which was followed by the payment of the consent fees of N36, 000. 00 by the Appellant as in Exhibit C4 and the fulfillment of all other requirements, the Lagos State Government was bound to have granted the consent to the prior valid transaction in respect of the land in dispute between the Appellant and the Bendel State Government and to allow the appeal and to so order. Counsel relied on Owoniboys Technical Services v Union Bank of Nigeria (2003) 15 NWLR (Pt.844) 545 @ p. 583; Ugochukwu V. Coop & Commerce Bank Ltd (1996) 6 NWLR (Pt.456) 524 @ p. 540.

It was also submitted that from the provisions of Section 22 of the Land Use Act it is apparent that giving of the Governors consent to a transaction in pursuant thereof is discretionary but contended that in law the exercise

of a discretionary power may be accompanied by a duty to exercise it, or refrain from exercising it in certain circumstances and urged the Court to hold that in view of the satisfaction by the Bendel State Government and the Appellant of the conditions attached to the grant of the Governors consent as recommended by the officials of the Lagos State Government, the Lagos State Government was duty bound to grant consent to the said transaction and if consent was refused the reason(s) for the refusal ought to have been given, none of which was given to the Appellant and to allow the appeal, set aside the judgment of the Court below and grant the reliefs claimed by the Appellant while dismissing the counter claims of the 1st Respondent for lacking in merit. Counsel relied on Padfield V. Minister of Agriculture, Fisheries and Food (1968) AC. 997; Car Owners Mutual Insurance Co Ltd V. Treasurer of the Commonwealth of Australia (1970) AC 527; A. G. V. Antigua Times Ltd (1976) AC 16 PC; Congreve V. Home Office (1976) Q.B 629; Stitch V. The Att-General of the Federation (1986) 1.

1ST RESPONDENTS COUNSEL SUBMISSIONS
On his issue one, learned counsel for the 1st Respondent had submitted that the contention by the Appellants counsel that the Appellants case is premised on the contract of sale between the Appellant and the Bendel State Government in 1982 and 1990 is a deliberate red herring with intent to confuse and mislead this Court in that the Appellant by their submissions is making a new case on appeal totally different from the case it made at the Court below on which the decision appealed against was based and contended from the pleadings of the Appellant, it was crystal clear that the transaction between the Bendel/Edo State Government and the Appellants was an agreement for a lease or at best an inchoate sublease agreement and urged the Court to hold that the Appellant having never made any case of contract of sale, since there was no sale and having relied only on a purported agreement for a sublease, in law an issue not raised, or not arising in the proceedings at the trial Court, cannot be raised in an appeal against the judgment in that proceedings except with leave of the Court and to discountenance all the submissions introducing a different

case for the Appellant on appeal. Counsel relied on Amaefuna V. Okoli (2014) LPELR – 23755 (CA); Oforishe V. Nigerian Gas Co. Ltd (2017) LPELR – 42766(SC); Mogaji & Ors V. Cadbury Nig. Ltd & Ors. (1985) NWLR (Pt 7) 393; Oseni V. Bajulu & Ors (2009) 18 NWLR (Pt 1172) 164.

It was also submitted that by Exhibit C2 entered into between the Bendel State Government and the Appellant, they, of their own free will, agreed to subject themselves to the power and control of the Governor of Lagos State and thereby acknowledged in their recitals the overriding powers of the Governor of Lagos State over land transactions in Lagos State as envisaged by the Land Use Act, 1978 and contended that on the evidence it was clear that the Appellant and the 3rd Respondent failed to obtain the consent of the Governor of Lagos State and thereby, the lease agreement remained inchoate talk much more a sale and urged the Court to hold that the powers of the Governor over land in his territory goes beyond mere management and control and thus the best a holder of a certificate of occupancy can enjoy on any land is more than the rights of a lessee under common law. Counsel relied on

Savannah Bank (Nig.) Ltd V. Ajilo (1989) 1 NWLR 305 @ p. 328.

It was further submitted that though in law a Claimant is not required to prove more than one of the five ways of proof of title to land, where he fails to satisfy the Court on any one or more of the five ways then his claim to title to land must fail and contended that though the production of documents of title, as relied upon by the Appellant, is one of the recognized methods of proof of title to land, in law the documents of title so produced must however be admissible in evidence and be of such a character as to be capable of conferring title on the party relying on it in prove of his title and urged the Court to hold that the Court below was right when it held that on the evidence led, particularly the discredited evidence of the CW1 in the face of the unchallenged and un – discredited evidence of DW1, DW2 and DW3, the lease agreement relied upon by the Appellant was inchoate and invalid and has no force of law since all that existed between the Appellant and the 3rd Respondent was an agreement to enter into a lease agreement and to affirm the correct findings of the Court below and

dismiss the appeal for lacking in merit. Counsel relied on Idundun V. Okumagba (1976) 9 – 10 SC 27; Chief Elemoro & Anor Vs. Chief Abiodun (2014) LPELR 23195; Piaro V. Tenalo (1976) 12 SC 31 @ p. 37; Dabo Vs. Abdullahi (2005) LPELR – 905 (SC); Agboola V. UBA Plc. (2011) 11 NWLR (Pt. 1288) 307 @ p. 413; Ayorinde V. Kuforiji (2007) 4 NWLR, Pt.1024, Pg. 341; Dosunmu Vs. Dada (2002) 13 NWLR (Pt. 783) 1; Romaine V. Romaine (1992), 4 NWLR (Pt. 238) 65; Kyari V. Alkali (2001) FWLR (Pt. 60)1481; Dabo V. Abdullahi (2005) 7 NWLR (Pt. 923)181; UBA Ltd. V. Tejumola & Sons Ltd (1988) 2 NWLR (Pt.79) 662 @ p. 664.

It was also further submitted that the Appellant failed woefully to produce any valid lease agreement between them and Bendel State Government in evidence to entitle them to the claim for a declaration that they are entitled to a statutory right of occupancy in respect of the land in dispute for the term of 90 years and contended that the Court below was therefore right when it held that the Appellant was unable to produce in evidence any valid document of title to substantiate their alleged claim title to the land in dispute and to affirm the said

finding of the Court below and to dismiss appeal for lacking in merit.

On his issue two, learned counsel for the 1st Respondent had submitted that it is a fundamental principle of law that a Claimant must succeed on the strength of his case and not on the weakness of the Defendants case and contended that since cases are determined on the preponderance of evidence and not merely on pleadings and since facts pleaded on which there is no evidence led in support of goes to no issue, the discredited and self contradictory evidence of the CW1 in the face of the unchallenged and un discredited evidence of the DW1, DW2 and DW2, cannot and did not, as rightly found and held by the Court below suffice in proof of the Appellants alleged title to the land in dispute, which was rightly dismissed since the 1st Respondent need not prove anything when the Appellant had failed woefully to make out even on a prima facie basis its claim to title to the land in dispute and urged the Court to affirm the decision of the Court below and to dismiss the appeal for lacking in merit. Counsel relied on Fabunmi V. Agbe (1985) 1 NWLR (Pt. 2) 299;

Olarewaju V. Afribank Nigeria Plc (2001) 13 NWLR (Pt. 731) 691 @ p. 704; Nwafor Orizu V. Anyaegbunam (1978) 5 SC 21; Patama Ltd & Ors V. UBN Plc (2015) LPELR – 24535(CA); Kanu Njoku & Ors V. Ukwu Eme & Ors (1973) 5 S.C. 293 @ p. 300; Jolayemi V. Olaoye (2004) 12 NWLR (Pt. 887) 322.

It was also submitted that since a counter claim is an independent action and it was incumbent upon the 1st Respondent to prove its counter claim, the unchallenged and un contradicted evidence of DW1, DW2 and DW3 of valid document of title, which is one of the five ways of proof of title to land, were sufficient in terms of quality and cogency as was rightly held by the Court below and did established the title of the 1st Respondent to the land in dispute and contended that the Court below was therefore right when it relied on the evidence of the witnesses to the 1st Respondent who were not even cross examined by the Appellant and urged the Court to affirm the decision of the Court below granting title to the land in dispute to the 1st Respondent and to dismiss the appeal. Counsel relied on United Nigeria Co. Ltd. V. Nahman (2000) 9 NWLR (Pt. 671) 177;

Jeric (Nig.) Ltd. V. UBN Plc (2000) 15 NWLR (Pt. 691) 447; NNB Plc V. Denclag Ltd (2005) 4 NWLR (Pt. 916) 549; Omoregbe V. Daniel Lawani (1980) 3 – 4 SC 108 @ p. 117; Paul Okeke V. Dula Aondoakaa (2000) 9 NWLR (Pt. 6735) 501.

2ND & 4TH RESPONDENTS COUNSEL SUBMISSIONS
On his sole issue, that is Appellants issue three, learned counsel for the 2nd & 4th Respondents had submitted that the failure of the Appellant to produce the duly executed Form 1C by parties with the seal and stamp of Bendel State Government was fatal to the case of the Appellant in that Form 1C is the process required to obtain Governors consent as even admitted by CW1 and contended that in law since the Appellant was yet to fulfill the conditions precedent, it flows directly that the Lagos State Government was right in withholding its consent and urged the Court to hold that the Court below was right when it held that the 1st Respondent having produced a valid and registered title to the land in dispute had acquired valid title to the said land upon the failure of the Appellants to obtain the consent of the Lagos State Government since and that under the Land Use

Act, there is no provision consent shall not be unreasonably withheld, therefore, if consent is refused, there is nothing the affected party can do. Counsel relied on Queen V. The Minister Ex parte Bank of the North Ltd (1963) NNLR 581.

It was also submitted that the moment the Federal Government released the property in dispute to the Chief Edwin K. Clark, the proprietary interest of the 3rd Respondent became extinguished and as such the only person who could alienate properly and indeed submit an application for consent was Chief Edwin K. Clark, which he did in favor of the 1st Respondent as in duly executed Form 1C attached to the 1st Respondents application for Governors consent and contended that since the requirement of consent in the case of an alienation is strict, it follows that parties who apply for consent must have complied with all administrative requirements before the Governor could consent to such transaction, including in Lagos State pre-requisite such as Taxes receipts for 3 years before the presentation of the documents for consent, development levies and other sundry levies to indicate that indeed the applicant has

complied and urged the Court to hold that from the totality of the evidence, Appellant failed to show or demonstrate any compliance with these terms and was therefore, not entitled to the consent of the Governor of Lagos State and to affirm the decision of the Court below and dismiss the appeal for lacking in merit. Counsel relied on Savannah Bank V. Ajilo (1989) 1 NWLR (Pt. 97)305; Attorney General of the Federation V. Attorney General of the 36 States (2002) 5 MJSC 1; Uwegba V. Attorney General of Bendel State (1986) 1 NWLR pt. 16 @ p. 303.

It was further submitted that by Sections 9 (1) and (2) of the Registration of Title Law Cap 121 Laws of Lagos State, the Registrar of Title of Lagos State cannot and does not have the power to register an inchoate interest in land and contended that in law averments in pleadings do not constitute evidence and must therefore, be proved or established by credible evidence unless the same is expressly admitted and urged the Court to hold that the Appellant failed woefully to establish by credible evidence, its entitlement to the consent of the Governor of Lagos State and to affirm the decision of the Court below and to

dismiss the appeal. Counsel relied on Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Onagoruwa V. Akinremi & Ors. (2001) 13 NWLR (Pt. 729) 38 @ p. 56; Tsokwa Oil Marketing Co. Ltd V. Bon Ltd (2002)11 NWLR (Pt. 77)163 @ p. 198; Ajuwon V. Akanni (1993)9 NWLR (Pt. 316)182 @ p. 200.

APPELLANTS COUNSEL REPLY SUBMISSIONS TO 1ST RESPONDENT
In the reply to the 1st Respondents submissions, learned counsel for the Appellant had submitted that all the three issues for determination in the 1st Respondents brief do not arise from the grounds of appeal as well as incompetent being merely narratives and indeed incomprehensible and should therefore, be discountenanced and struck out by the Court Counsel relied on Chami V. UBA Plc (2010) 6 NWLR (Pt. 1191) 474 @ p. 496; Kuusu V. Udom (1990) 1 NWLR (Pt. 127) 421; A. G. Federation V. Guardian Newspaper Ltd (1999) 9 NWLR (Pt. 618) 187; Wema Bank Plc V. Brastem Ster Nig. Ltd (2011) 6 NWLR (Pt. 1242) 58 @ p. 76; A.G. Lagos State V. Dosumu (1989) 2 NWLR (Pt. 111) 552; Fidelity Bank Plc V. Ogiri (2012) LPELR 9303 (CA); Josiah Cornelius Ltd V. Ezenwa (1996) 4 NWLR (Pt. 443) 391;

Melford Agala & Ors v.Chief Benjamin Okusin & Ors (2010) 10 NWLR (Pt. 1202) 412.

APPELLANTS COUNSEL REPLY SUBMISSIONS TO 2ND & 4TH RESPONDENTS
In reply to the 2nd & 4th Respondents submissions, learned counsel for the Appellant had submitted that all the reason adduced by the 2nd & 4th Respondents in justification of the decision of the Court below were reasons not apparent in the said judgment of the Court below and contended that in law it is not within the province of a Respondent on an appeal to set up a different reason for the judgment appealed against unless he has filed a Respondents Notice and urged the Court to hold that on th efface of the binding agreement between the Appellant and the 3rd Respondent in respect of the land in dispute, the justifications sought to be raised by the 2nd & 4th Respondents are at best fresh matters which were not raised before the Court below and which they could raised before this Court and therefore, to discountenance the same. Counsel relied on Bob – Manuel V. Briggs (2003) 5 NWLR (Pt. 813) 323; Ogbeide V. Osula (2003) 15 NWLR (Pt. 843) 266; American Cyanamid Co V. Vitality Pharmaceutical

Ltd (1991) 2 NWLR (Pt. 171) 15; Ogunbadejo V. Owoyemi (1993) 1 NWLR (Pt. 271) 517; Bello V. Jallo (1999) 4 NWLR (Pt. 598) 189; UBN Plc V. Ayo Dare & Sons Ltd (2000) 1 NWLR (Pt. 679) 644.

RESOLUTION OF ISSUE ONE
My lords, this issue, encompassing the Appellants issues one, two and three, the 1st Respondents issues one and two and the 2nd & 3rd respondents sole issue, is one which frontally calls into question the evaluation of evidence, findings and decisions of the Court below as to whether or not proper evaluation was carried and findings flowing from such evaluation arrived at by the Court below and whether or not the decisions arrived at by the Court below were correct on the face of the state of the issues joined by the parties in the pleadings and the evidence led thereon. While the Appellant had contended that the Court below was jaundiced and prejudicial in the way and manner it carried out the evaluation of the evidence skewed against the Appellant and thereby arrived at wrong findings of facts leading to perverse decision, the 1st Respondent, supported by the 2nd and 4th Respondents, had contended that the

Court below did a proper evaluation of the totality of the evidence led in line with the pleadings of the parties and did arrived at proper finding of facts and therefore, reached the correct decisions on the claims and counter claims of the parties.

So as between the Appellant and the 1st Respondent who proved their respective claim and counter claim to the title to the land in dispute? Was the Court below right when it held that it was the 1st Respondents that proved and was thus entitled to a grant of a decree of title to the land in dispute? Does this finding by the Court below flow from the issues as joined by the parties in their pleadings and the evidence led thereon?

Now, in the suit filed before the Court below, the principal claim of the Appellant as Claimant as well as the principal claim of the 1st Respondent as Counter Claimants was for declaration of title to the land in dispute. It is settled law that in a claim for declaration of title to land, in order to succeed, a party seeking the declaration of title to land must prove by credible evidence one or more of the five methods of proving title to land, namely:

In Ezukwu v. Ukachukwu (2000) 1 NWLR (pt 642) 657 @ p. 679 it was reiterated inter alia thus:
“A claimant of title to land, of course, need not rely on more than one of the five methods. No. Where, however, he relies on a pleaded method or way as a root of his title, then, if the pleaded root fails the alleged acts of ownership or possession derivative of the root necessarily ought to fail. Why? Because the title or the root of title needs must be, firstly established before the exercise of the rights of ownership may be exercisable.

It was on the pleadings and evidence, oral and documentary, as led by the parties in evidence through their respective witnesses in support of their divergent and rival claims to title over the land in dispute that the Court below upon a review and evaluation of the totality of the evidence and the applicable law held on the various issues in contentions between the parties had held inter alia thus:
.In the instant case despite being afforded the opportunity to cross examine the defendants witnesses, the claimant and their Counsel refused to do so therefore the Court is

free and in fact bound to accept and rely on all time unchallenged and uncontroverted evidence of the Defendants witnesses The 1st defendant joined issued with the Claimants on all the averments contained in their amended Statement of Claim. The 2nd and 4th Defendants also agreed that the Claimants applied for Governors consent and paid some money as deposit/part payment pursuant to their application but the said application could not be produced further because of certain discoveries by the 4th defendantThe 2nd and 4th Defendants further discovered that the Claimants actually had no claim to the land in dispute having discovered that the land to longer belong to the Bendel State Government as title in the land had reverted to Chief Edwin Clark, the predecessor title to the 1st Defendants.The 1st Defendant claim to have derived its ownership of the land in dispute from Chief Edwin K. Clark who transferred his beneficial interest in the land in dispute to the 1st Defendant after same reverted back to him. It is quite clear from the totality of both oral and documentary evidence before the Court that Exhibit C2 heavily relied

upon by the Claimant as having conferred title of the land in dispute to the claimant is unsubstantiated and unacceptableThe Claimants were unable to produce before the Court any document of title to substantiate their alleged title/claim to the disputed land.In this case just as transpired the claimants failure to produce any document/documents of title to the Lagos State Government for consent, including before this Court, where it mattered most is fatal to the Claimants caseBy Entry No 6, the title became vested in Chief Edwin Clark with effect from 14/9/1992. Consequently, from 14/9/1992 the Claimant acquire no title as the Bendel State government had to give them.In the absence of the certainty of the commencement date, such a leasehold agreement cannot be said to be valid.Since the Claimant have failed to produce a valid instrument of grant, the Claimants claim must collapseIn the circumstances Exhibit C2 did not pass any title to the claimant as the Bendel (or Edo) State Government had nothing to pass to the Claimant as at 1993 on the principle of memo that quod non habet. Consequently the

Claimants claims fail and is hereby dismissed in totality….The 1st Defendant has a counter – claimthe governors consent which according to his evidence was obtained on the 14th February, 1994. The consent was endorsed on the Deed of Assignment dated 29th March 1993 and marked Exhibit C3 pages 62 to 65and the 1st Defendants were duly registered as proprietors of the land on the 19th of September, 1994 as item 10 on Exhibit D3, the original land certificate in respect of land in disputeThe 1st Defendants based its claims on exhibits D2, D3, D6, and D7 a-c, I have found that those are credible as evidence led reveals that the 1st defendants are bona fide owners of the property in dispute..The 1st Defendant is entitled to the declaration of title and an order of perpetual injunction against the claimant See pages 1091 – 1113 in Volume III of the Record of Appeal.

Now, when in an appeal it is alleged that the judgment appealed against is against the weight of evidence, it is simply a call on this Court to review and re-evaluate the evidence in the printed record to determine if the Court below properly

evaluated the evidence and made correct findings borne out by the evidence as led by the parties.

Amala V. State (2004) 12 NWLR (Pt. 888)520.
However, in carrying out its re – evaluation the law is that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, and once a trial Court discharges that duty on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an appellate Court will not interfere once the conclusions reached is correct, even if the reason which is the pathway to the conclusion or finding turns out to be wrong. This is so because in law an appellate Court is not so much concerned with the correctness or wrongness of the reasons adduced by a trial Court for its decisions or conclusions but rather more concerned with whether the decision reached or conclusion arrived at was correct or wrong; that is the law. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC., had pronounced with finality on this vexed issue, thus:
An appellate Court is only concerned with whether the judgment appealed against is right or wrong not

whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere….
See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.
It is thus the law that an appellate Court which had not seen the witnesses testify and observed their demeanor in the witness stand should respect the views of the trial Court and not to readily substitute its own views for that of the trial Court except where it is shown that the conclusion or finding reached by the trial Court below was perverse and for this an appellate Court will readily intervene to re-evaluate the evidence in the printed record if it is shown that the conclusions reached or findings made by the Court below on the proved evidence before it do not flow from such proved facts or runs contrary to such proved facts and thus perverse. In such a case, the appellate Court is in good a position as the trial Court to intervene to re-evaluate the evidence in the printed record

to draw necessary inference and make proper findings on the proved and admitted facts in the record as the justice of the case requires but which the trial Court had failed to do. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ P. 19. See alsoOwor V. Christopher (2010) All FWLR (Pt. 511) 962 @ 992; Sogbamu V. Odunaiya (2013) All FWLR (pt. 700) 1249 @ P. 1302; Mini Lodge V. Ngei (2010) All FWLR (Pt. 506) 1806 @ Pp. 1820 -1821; Saeed V. Yakowa (2013) All FWLR (Pt. 692) 1650 @ P. 1681.

Now, the Appellant called one witness who testified as CW1, one Prince Gabriel Nwandibe Okoye – Eze who adopted his Written Statement on Oath filed on 20/11/2006 as his evidence-in-chief in line with the pleadings of the Appellant. However, he was thoroughly cross examined. He tendered some documents which were admitted in evidence as follows: Original file of the Lagos State Government for application for Governors Consent to the lease agreement between the Bendel State Government and the Claimant as Exhibit C2; Original file of the Lagos State Government in respect of application for Governors consent to the lease agreement between Chief Edwin K

Clark and Ansar-ud-deen Society of Nigeria as Exhibit C3; Legal Notice No. 13 dated 10/3/1977 as Exhibit C4. With the requirement of filing of written statements on oath of witnesses of the new Rules of the Court below, it is no longer anything strange seeing the written statement on oath of a witness being almost word for word with the pleadings of the parties on whose behalf he is testifying. Thus, cross examination has become invariably the crucible test by which separation between the truth and lies are attained in the civil litigation process before Court below.
Under his cross – examination evidence, which I have taken time to review in line with his evidence in chief, the CW1 was taken to the cleaners, dusted and revealed as not only being self contradictory in all the key issues in dispute areas of his evidence in chief including but not limited to the most crucial Form IC, but was also not a witness of truth on which evidence the Court below can rely upon to find in favor of the Appellant. CW1 identified the Supplement to Gazette No 10, 4, L.N. 13 of 1977 in Exhibit C4 and had admitted that pages 8, 9 and 10 of Exhibit C2 is the True Copy of the

Register pleaded in paragraph 7 of the Claimants Amended Statement of claim and Chief E. K Clark is listed as No. 11 amongst names listed on page B64 of Exhibit C4 and that the land in dispute, while page 364 of C3 refers to the Forfeiture of Assets 1992 and Decree No. 39 and commencement date was 14/9/1992. He admitted that the names listed in A-P in Exhibit C4 are the same listed under E. K. Clark as in Exhibit C3 pages 22-23 and that Decree LN 13 of 1977 was revoked by Decree 39 of 14/9/1992 and very crucially, CW1 was unable to identify the signature on page 3 of Exhibit C2 but stated that 1st signature was signed by someone and that he does not know his name and was also unable to identify who signed the document on page 3 of Exhibit C2. He however, maintained that the Appellant are in Court because the Governors consent has not been given and that he is not aware that the property in dispute had reverted to Chief E. K Clark at the time of the Appellants application for Governors Consent was submitted but agreed that the contents of the Gazette are taken as notice to the whole world. Despite these devastating cross examinations

the CW1 was not re examined to clear some of these doubts created by his evidence under cross examination.

Curiously, the DW1, one Alhaji Surajudeen Ishiola Awe, who had also adopted his written statement on oath filed on 5/1/2006 and thereby given evidence in line with the pleadings of the 1st Respondent was not cross – examined by the Appellant. He had also tendered some documents admitted in evidence as follows: Deed of Assignment dated 29/3/1993 between Chief Edwin Clark and 1st Defendant as Exhibits D1 – D2; Original Land Certificate Title NO M02530 as Exhibit D3; Receipts dated 20/9/1994, 22/9/1994 27/9/1 994 and 22/9/194 issued in favor of Ansar -Ud- deen Society of Nigeria as Exhibits D4A – D4D. His evidence therefore, remained unchallenged and un discredited.

Again, the DW2, one Alhaji Abass Kolawole Koiki, a Registered and Chartered Surveyor by profession, had also adopted his Written Statement on Oath filed on 5/1/2007 and thereby gave his evidence in line with the pleadings of the 1st Respondent. He was also not cross examined by the Appellant. He had also tendered some documents admitted in evidence as follows: Form 1C

dated 10/3/1994 Title No. MO2530) as Exhibit D6; Lagos State of Nigeria official gazette dated 9/6/1994, 30/6/1994 and 7/7/1994 as Exhibits D7a, D7b and D7c. His evidence, like that of the CW1, therefore, also remained unchallenged and un discredited.

The 2nd & 4th Respondents called one witness, DW3, one Mr. Abayomi Kehinde, who also adopted his written statement on Oath filed on 2/12/2009 and thereby gave evidence in line with the pleadings of the 2nd & 4th Respondents. He identified Exhibit C3 pages 21 23 of Decree No of 39 of 1992 and Exhibit C4,. He was also not cross examined. Thus, his evidence just like that of CW1 and CW2, also remained unchallenged and un discredited.

I had earlier reproduced the findings of the Court below on the requirement of proof of title as claimed by the Appellant and the counter claimed by the 1st Respondent and having calmly reviewed the pleadings and re-evaluated the evidence, both oral and documentary as led by the Appellant through CW1, and the 1st Respondent through DW1 and DW2 and 2nd and 4th Respondents through DW3, I find that the finding by the Court below are

unimpeachable and impeccably correct and cannot therefore, be interfered with by this Court. In law, whenever a claim is made for title to land, such a claim must be established not merely on pleadings since it is declaratory in nature but on one or more of the five ways of proving title to land.
In the instant appeal both parties had relied on production of title documents. Thus, once the root of title relied upon in proof of title to land in dispute, it is that root that must be proved and therefore, if that root fails, as was correctly found by the Court below against the claim to title to the land in dispute by the Appellant, then all acts of possession and or ownership purportedly exercised consequent upon the failed root of title to land cannot sustain a claim of declaration of title to land and would rather become clear acts of trespass on the land in dispute at the suit of the person with a better title.
The above is so because in law where a party’s root of title is pleaded, it is that root of title that must be established first and foremost and any consequential acts following there from can then safely and properly qualify as acts

of ownership and possession. But, where the root of title pleaded has not been proved by consistent, credible and cogent evidence, then it will be completely unnecessary for the Court to consider acts of possession and ownership, as in law such acts would no longer be acts of possession and ownership but clearly acts of trespass. See Regd Trustee of Diocese of Aba V. Helen Nkume (2002) 1 NWLR (Pt. 749) 726. See also Shuakani V. Tippi (2014) LPELR 24201 (CA) per Georgewill JCA @ pp. 58 60.

Now, when it comes to the powers of the Governor of a State under the Land Use Act of 1978 in relation to granting of consent, control and management of the land within the geographical area of his state, it is quite enormous. In Savannah Bank (Nig.) Ltd V. Ajilo (1989) 1 NWLR 305 @ p. 328 S.C., the Supreme Court had considered and pronounced upon the powers of a Governor of State under the Land Use Act inter alia thus:
.It is clear that in view of the wordings of Section 1 of the Act, the powers of control and management vested in the Ministry Governor and Local Government by Section 2 of the Act are not outside but as set out in

the Act. While the interest vested in the Military Governor is unstated in the Act, the interest a Nigerian can lawfully acquire from the Military Governor is scaled down to statutory right of occupancy. In terms of known interests in land, the quantum of a statutory right of occupancy remains unclear. To the extent that it can only be granted for a specific term (see Section 8 of the Act) it has the semblance of a lease. Also to the extent that a holder has the sole right to and absolute possession of all the improvements on the land during the term of a statutory right of occupancy, a holder does not enjoy more rights than a lessee under common law. When therefore Section 34 (2) of the Act converted the interest held by an owner to a statutory right of occupancy the Act reduces him to the position of a tenant, subject to the control of the state through the governor. As a tenant, he is bound by the implied and express terms of the tenancy. As one of the terms stated in the Act is that a holder require prior consent in writing of the military governor to any alienation, I would answer the question for determination in the affirmative.

It seems clear to me that by Exhibit C2 entered into between the Bendel State Government and the Appellant, they had of their own free will agreed to subject themselves to the power and control of the Governor of Lagos State as clearly acknowledged in their recitals the overriding powers of the Governor of Lagos State over land transactions in Lagos State as envisaged by the Land Use Act, 1978. The evidence on the printed record makes it abundantly clear that the Appellant and the 3rd Respondent failed to obtain the consent of the Governor of Lagos State and without the vital life giving consent of the Governor, coupled with the lack of specified duration, their lease agreement remained inchoate. I hold therefore, that the powers of the Governor over land in his territory goes beyond mere management and control and it is for this reason amongst many other germane reasons that in law the best a holder of a certificate of occupancy can enjoy on any land is more than the rights of a lessee under common law. Counsel relied on Savannah Bank (Nig.) Ltd V. Ajilo (1989) 1 NWLR 305 @ p. 328.
It is the law and there is no dispute about it that although a Claimant

is not required to prove more than one of the five ways of proof of title to land, where he fails to satisfy the Court on any one or more of the five ways he relies on then his claim to title to land must fail. It is also of importance to note, and pertinently too, that although the production of documents of title, as relied upon by the Appellant as well as the 1st Respondent in the instant appeal, is one of the recognized methods of proof of title to land, in law the documents of title so produced must however be admissible in evidence and be of such a character as to be capable of conferring title on the party relying on it in prove of his title. See Idundun V. Okumagba (1976) 9 – 10 SC 27. See also Chief Elemoro & Anor Vs. Chief Abiodun (2014) LPELR 23195; Piaro V. Tenalo (1976) 12 SC 31 @ p. 37; Dabo Vs. Abdullahi (2005) LPELR – 905 (SC).
It does appear to me, and as rightly found by the Court below, that in the face of the self contradictory, discredited and shattered evidence of the CW1, the witness only evidence put forward by the Appellant, who was unable to produce the very crucial original Form 1C, there was in the eyes of the law no

binding agreement between the Bendel State Government and the Appellant in April, 1982 for a grant of sublease in respect of the land in dispute as there was no such document completely and validly executed between the Midwestern State Government and the Appellants which was tendered at the trial nor submitted to the Lagos State Government for consent.
In law, the fact that a party produces a document of title does not automatically entitle such a party to a declaration that the property which the instrument purports to grant is his own since before a document of title can confer title on the party relying on it, the document of title so produced must however be admissible in evidence and be of such a character as to be capable of conferring title on the party relying on it in proof of his title. In Agboola V. UBA Plc. (2011) 11 NWLR (Pt. 1288) 307 @ p. 413, the Supreme Court had opined inter alia thus:
“Mere production of a deed of conveyance or document of title does not automatically entitle a party to a claim in declaration, before the production of document of title is admitted as sufficient proof of ownership, the Court must satisfy itself

that:- a. The document is genuine or valid. b. It has been duly executed, stamped and registered. c. The grantor has the authority and capacity to make the grant. d. That the grantor has in fact what he proposes to grant, e. That the grant has the effect claimed by the holder of the instrument.
See also Ayorinde V. Kuforiji (2007) 4 NWLR (Pt.1024)341; Dosunmu V. Dada (2002) 13 NWLR (Pt. 783)1; Romaine V. Romaine (1992) 4 NWLR (Pt. 238)65; Kyari Vs. Alkali (2001) FWLR (Pt 60) 1481; Dabo V. Abdullahi (2005) 7 NWLR (Pt. 923) 181.
It is now elementary, and looking at the sublease relied upon by the Appellant, coupled with the lack of any specific or definite time or date of duration, that in law for a lease agreement to be valid, the parties and the property, the length of the term, the rent and the date of commencement must be defined and failing which such a lease remains inchoate and invalid. See UBA Ltd. V. Tejumola & Sons Ltd (1988) 2 NWLR (Pt.79) 662 @ p. 664.
On the pleading and the evidence led by the 1st Respondent, which had remained unchallenged, it is clear that although on the publication of the Federal Government of

Nigeria Gazette No. 10 vol. 64 of 10th March, 1992 LN 13 of 1977, Exhibit E36, the land described in the Land Certificate Title No. M02530, Exhibit G belonging to one Chief Edwin K. Clark was forfeited to the Mid – Western State Government and thus subsequently devolved on the Bendel State Government on its creation, by virtue of the Forfeiture of Assets (Release of Certain Forfeited Properties, Etc) Decree 39 of 1992 promulgated on 14th September, 1992 and published in the Federal Government of Nigeria Official Gazette No. 34 volume 79 of 14th September, 1992, the landed properties forfeited by Chief Edwin K. Clark under Legal Notice No. 13 of 1977 including the land in dispute were released to Chief Edwin K. Clark as in Exhibit C4 as the Supplement to Gazette No. 10, volume 4, LN, 13 of 1977 wherein Chief Edwin K. Clark was listed as No. 11 amongst names listed on page B64 thereof.
It follows therefore, in my finding, and as rightly found by the Court below, that by the release of the property in dispute to Edwin K. Clark, the Bendel State Government no longer had any title to transfer to the Appellant since on the evidence it was clear that even the inchoate

lease agreement between the Bendel State Government and the Appellant was not in existence until 1990 and therefore, it follows that as at the time the land in dispute was released to the original owner, Chief Edwin K. Clark, there was no Form 1C with official stamp and seal of Bendel State Government that was submitted to the 2nd & 4th Respondents on which a valid consent could have been granted by the Governor of Lagos State.
I therefore, have no difficulty finding as fact, and as already found and quite rightly too by the Court below, that as at 14/9/1992 when the Federal Government returned the land in dispute to Chief Edwin Clark by virtue of the Federal Government Official Gazette No. 34 vol. 79 as in Exhibit G, the Lagos State Government had not consented to the purported sublease agreement between the appellants and the 3rd Respondent. In law therefore, with effect from 14/9/1992 the Bendel State Government ceased to have any interest in the land in dispute and therefore, had no further legal or equitable interest in the land to alienate or lease in whatever manner to the Appellant and on which a grant of Lagos State Governments

consent can be founded. The law is simply: nemo dat quod non habet.
I must reiterate it here and now, that in law a party, such as the Appellant, who had all the opportunity to cross – examine the witness of the Respondents, but had failed, neglected and or refused to so do for no just cause, has only himself to blame and the Court below was bound to rely and act on the unchallenged evidence, if it is found to be credible is good evidence, to make appropriate findings of facts. The complaint in this respect by the Appellant is clearly a self inflicted jeopardy for which neither the Court below nor the 1st Respondent can be said to be responsible. SeeNNB Plc V. Denclag Ltd(2005) 4 NWLR (Pt. 916)549. See also Omoregbe V. Daniel Lawani (1980) 3 – 4 SC 108 @ p. 117; Paul Okeke V. Dula Aondoakaa (2000) 9 NWLR (Pt. 6735) 501.
It has now become very clear to me and I so hold that the failure of the Appellant to produce the duly executed Form 1C by parties with the seal and stamp of Bendel State Government was fatal to the case of the Appellant since Form 1C is the process required to obtain Governors consent. In law, since the

Appellant was yet to fulfill the conditions precedent, it follows that the Lagos State Government cannot but withhold its consent, which is at any rate within the discretionary powers of the Governor of Lagos State and thus can be refused with or without reasons given for such refusal. See Queen V. The Minister Ex parte Bank of the North Ltd (1963) NNLR 581.
My lords, I cannot but agree completely with the apt submissions of counsel for the 2nd & 4th Respondent that the moment the Federal Government released the property in dispute to the Chief Edwin K. Clark, the proprietary interest of the 3rd Respondent became extinguished and as such the only person who could alienate properly and indeed submit an application for consent was Chief Edwin K. Clark and not the 3rd Respondent any longer. At any rate, consent is not automatic upon submission of an application for same as there are processes, procedures and requirements the fulfillment of which would or may lead to a grant of consent. Thus, the Registrar of Title, Lagos State has neither the power nor duty to register an inchoate interest, such as the one presented by the Appellant. See Sections 9(1)

and (2) of the Registration of Title Law Cap 121.
Now, while Section 9(1) of the said law provides as that investigating a title with a view to first registration, the registrar shall accept and act on legal evidence or evidence ordinarily required by conveyances, Section 9(2) of the said law provides that if after investigation of an application for first registration, the registrar is satisfied, the applicant is entitled to be registered accordingly. See Jolasun V. Bamgboye (2010) 18 NWLR (Pt. 1225) 285, where the Supreme Court had opined inter alia thus:
“From the evidence adduced before the Registrar of Titles, it appears the registrar was satisfied with the evidence of ownership brought by the Applicant comprising the Deeds of conveyances in respect of the property to be registered – that is Exhibits ‘A’, ‘B’ and ‘C’ respectively which traced the title in the property to the Oloto family when the applicant was asked to come back for the certificate of registration. This is in line with the requirement of Section 9 of the law that the Registrar of Titles shall, in investigating a title with a view to first registration, accept

and act on legal evidence or evidence ordinarily required by conveyancers, and if satisfied register accordingly.
See also Onagoruwa V. Akinremi & Ors. (2001) 13 NWLR (Pt. 729) 38 @ p. 56.

In the light of the above findings that the Court below was right in its findings and conclusions reached in dismissing all the reliefs claimed by the Appellant against the Respondents, while granting reliefs 1, 2, and 3 of the 1st Respondents counter claim against the Appellant, I hereby resolve issue one in favor of the Respondents against the Appellant.

ISSUE TWO
Whether the 1st Respondents successfully proved their counter claim before the trial Court to entitle them to a declaration of title to the land in dispute and the award of damages?

APPELLANTS COUNSEL SUBMISSIONS
On his issue four, learned counsel for the Appellant had submitted that actual possession of land is a question of fact and there could be various acts which could be evidence of possession and contended that the claim of the 1st Respondent with respect to damages in relation to the land in dispute is premised on an alleged ownership of the

land by the 1st Respondent after Decree 39 of 1992 which was said to have vested authority on Chief E.K. Clark in selling the land in dispute to the 1st Respondent and urged the Court to hold the alleged date of when the interest of the Bendel State Government came to an end on 14/9/92 implied that before that date, the Bendel State Government had complete proprietary interest in the property in dispute.

It was also submitted that on the evidence of transaction between the Bendel State Government and the Appellant, the Court below ought to have held that the Appellant was in possession of the land before the promulgation of Decree 39 of 1992 as reinforced by Exhibit C1 pages 2-3 and contended that in law where two parties make conflicting claims to possession of the same land, the possession being disputed, the law ascribes possession to the person that can prove better title to the land in dispute. Counsel relied onBristow V. Cormican (1878) 3 APP C @ p. 641; Ogunbiyi V. Adewunmi (1988) 5 NWLR (Pt. 93) 215; Umeobi V. Otukoya (1978) 4 SC 33; Awooner – Renner V. Deboh (1935) 2 WACA 258; Provost LACOED & ors V. Dr. Kolawole Edun (2004) 6 NWLR (Pt.870)

476; Ezekwesili V. Agbapuonwu (2003) 9 NWLR (Pt.825) 337.

It was further submitted that on the clear and more probable evidence of possession led by the Appellant, the Court below was in error in finding for the 1st Respondent as possessing a better title as lawful owners of the property in dispute and urged the Court to hold that was no proof of a better title in the 1st Respondent and to set aside the perverse findings of the Court below and allow the appeal and set aside the award of damages against the Appellant.

1ST RESPONDENTS COUNSEL SUBMISSIONS
On his issue three, learned counsel for the 1st Respondent had submitted that in law on the state of issues joined in the pleadings of the parties, the burden of proving that the Appellant was entitled to judgment was on the Appellant because he is the one to lose if no evidence is adduced to support his assertion and contended that the 1st Respondent led unchallenged evidence in proof of its claim, and notwithstanding the fact that the evidence of the 1st Respondents was unchallenged, since in law a claim or counter claim for declaration of title cannot be established merely on

admissions, the 1st Respondent satisfied the Court below by credible evidence that it was entitled to the declaration to title to the land in dispute and urged the Court to so hold and to affirm the findings of the Court below. Counsel relied on Braimah V. Abasi (1998) 12 NWLR (Pt. 581) 167 @ p. 179; Nelson – Moore & Anor V. Medicine Plus Ltd & Anor (2014) LPELR – 24089(CA).

It was also submitted that in law special damages are distinct from general damages and that in appropriate cases both may be awarded by a Court to a successful Claimant and while special damages consist of items of loss or injury caused by the wrongful acts of the person against whom they are claimed, general damages are such as the law will presume to be the direct or probable consequence of the wrongful act and so a Claimant does not in law, have to specifically plead and strictly prove them as is the case with special damages and contended that on the proved evidence the 1st Respondent suffered damages and the Court below was right to have so held and awarded the relief 5 for special damages in favor of the 1st Respondent against the Appellant and to dismiss the appeal

for lacking in merit. Counsel relied on Xtoudos Serv. Nig. Ltd. V. Taisei (W.A.) Ltd. (2006) All FWLR (Pt. 333) 1640; Adim V. NBC Ltd. (2010) 9 NWLR (Pt. 1200) 543.

RESOLUTION OF ISSUE TWO
My lord, issue two is all about whether or not the Court below was correct to have granted the relief 5, a claim in special damages, in favor of the 1st Respondent against the Appellant. I have already found under issue one that the 1st Respondent is the person entitled to the declaration of title to the land in dispute as rightly found by the Court below. In affirming the findings of the Court below, I had a calm dispassionate evaluation of the totality of the evidence led by the parties, bearing in mind that discredited evidence of the CW1 for the Appellant and the unchallenged evidence of DW1 and DW2 for the 1st Respondent and the place of unchallenged evidence in litigation generally.

On the pleadings and evidence of the parties touching on the issue of damages claimed by the Appellant against the 1st Respondent and the 1st Respondents counter claim against the Appellant, the Court dismissed the claims for damages by the Appellant in its

entirety but granted relief 5 for special and general damages counter claimed by the 1st Respondent against the Appellant and held inter alia thus:
.The 1st Defendant is also claiming for damages and injunction. The 1st Defendant is claiming the sum of N500,000.00 as general damages as well as the sum of N500,000,000.00 per annum as damages for use and occupation together with interest at 21% per annum until final judgment and thereafter at the rate of 5% until final payment of the land in dispute.From the unchallenged evidence of 1st defendants witness on this point, the 1st defendants actually satisfied the conditions laid down in decided cases on the issue of proving special damagesThe 1st defendants witnesses gave evidence that the claimants detained their building materials and refused to allow the 1st Defendant access to same. Further particulars were given of the alleged detention of the goods by the Claimant.The sum of N2, 375, 000.00 is awarded in favor of the 1st Defendants against the Claimants as special damages together with interest at the rate of 21% per annum from the date hereof and

thereafter at the rate of 50% until final payment. See pages 1111 1113 in Volume III of the Record of Appeal.

In law, trespass is constituted by the slightest disturbance to the possession of land by person who cannot show a better right to possession and thus even where the entry into possession is under a transaction which has been declared void or found to be void ab initio, the entry itself is void ab initio and its lawful character losses its lawfulness and acquires an illegal or unlawful character from the very moment the entry was made. See Ojomo V. Ibrahim (1999) 12 NWLR (Pt. 631) 415. See also Solomon V. Mogaji (1982) 11 SC 1 @ p. 37.

Now, on the credible and unchallenged evidence put forward by the 1st Respondent on the claim for special damages under relief 5 in the amended statement of defence of the 1st Respondent, was the Court below right when it found for the 1st Respondent against the Appellant on that head of special damages claim?

On a claim for special damages, the law as I understand it and buttressed by a plethora of decided cases as replete in our law reports, is that there is a distinction and

very wide divide between special damages and general damages. These differences include, though not intended as an exhaustive list of these differences, the following namely: 1. General damages need not be pleaded but special damages must be specifically pleaded; 2. General damages need not be proved but special damages must be specially proved; 3. In General damages the assessment is the duty of the Court but in special damages its assessment is based on what is specifically proved; 4. General damages refer to those damages, which flows naturally from the wrongful act of the Defendant but special damages are those damages which denotes those pecuniary losses which have crystallized in terms of cash and values before the trial. See Ijebu Ode Local Government V. Adedeji Balogun & Co (1991) 1 NWLR (Pt. 166) 36; Bello V. AG Oyo State (1986) 5 NWLR (Pt. 45) 828; UBN Ltd. V. Odusote Book Stores Ltd (1995) 9 NWLR (Pt. 421) 558.

The law is that there is need to specifically plead and strictly prove special damages as the rule requires that anyone asking for special damages must prove strictly that he did suffer such damages as he claimed. However, this does

not means that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages. What is required to establish entitlement to special damages is credible evidence of such a character as would suggest that he indeed is entitled to an award under that head otherwise the general law of evidence as to proof by preponderance or weight as usual in civil cases operates. See Oshinjirin V. Elias (1970) All NLR 153. See also Warner International V. Federal Housing Authority (1993) 6 NWLR (Pt. 298) 148.

On the totality of the pleadings and evidence led by the parties, I cannot but completely agree with the Court below that the 1st Respondent did by specific pleadings with the relevant required particulars and through credible and unchallenged evidence proved its entitlement to the special damages claim under relief 5 against the Appellant. The Court below was therefore right when it assessed and applied the right principles on proof and award of special damages and granted relief 5 in favor of the 1st Respondent against the Appellant.

It is the law that once an appellate Court finds that the conclusion reached by a trial Court is correct, and when it comes to award and quantum of damages that the correct principles were applied, it has no duty to interfere since an appellate Court is not so much concerned with the correctness or wrongness of the reasons adduced by a trial Court for its decisions or conclusions but rather more concerned with whether the decision reached or conclusion arrived at was correct or wrong. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.
In the light of the finding that the Court below was right to have granted the special damages claim in relief 5 in the 1st Respondents amended statement of defense and counter claim. I hereby resolve issue two against the Appellant in favor of the Respondent.

On the whole therefore, having resolved both issues one and two for determination against the Appellant in favor of the 1st, 2nd and 4th Respondents, I hold that this appeal lacks merit and is thus liable to be dismissed. I hereby so dismiss it.<br< p=””>

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In the result, that part of the Judgment of the High Court of Lagos State, Coram: T. Ojikutu – Oshode J., in Suit No. LD/4749/1994: The Registered Trustees of People Club of Nigeria V. The Registered Trustees of Ansar – Ud – Deen Society of Nigeria & Ors delivered on 16/12/2011, wherein the claims of the Appellant as Claimant against the 1st Respondent as Defendant were dismissed, while reliefs 1, 2, 3, and 5 of the 1st Respondent against the Appellant were granted is hereby affirmed.
I make no order as to cost.

JUDGMENT IN CROSS APPEAL
By a notice of cross appeal filed on 5/5/2016 on two grounds, the Cross Appellant is challenging that part of the judgment of the Court below delivered on 16/12/2011 dismissing the Cross Appellants claim in relief 4 in the amended statement of defense and counter claim. The Cross Appellants brief was filed on 26/5/2016, while the Cross Respondents brief was filed on 31/1/2018 but was deemed properly filed on 6/3/2018. On 16/4/2019, the Cross Appeal was deemed argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules 2016. The briefs facts as already set out in the

judgment in the main appeal are hereby incorporated into this judgment in the Cross Appeal as are relevant to the issues in contention herein.

ISSUES FOR DETERMINATION IN THE CROSS APPEAL
In the Cross Appellants brief, a sole issue was distilled as arising for determination from the two grounds in the cross appeal, namely:
Whether the Court below was in error when it struck out the Cross Appellants head of claim for damages for the use and occupation of the one acre piece of land in dispute on the ground that if the Counter Claimant/Cross Appellant recovered in full under special damages they would not recover again under the head of general damages for that would be double compensation? (Distilled from grounds 1 and 2)

In the Cross Respondents brief, the sole issue for determination distilled in the Cross Appellants brief was adopted. The parties having agreed on the issue arising for determination in this cross appeal, I shall adopt same in the consideration and determination of the cross appeal.

SOLE ISSUE IN CROSS APPEAL
Whether the Court below was in error when it struck

out the cross appellants head of claim for damages for the use and occupation of the one acre piece of land in dispute on the ground that if the counter claimant/cross appellants recovered in full under special damages they would not recover again under the head of general damages for that would be double compensation?

CROSS APPELLANTS COUNSEL SUBMISSIONS
On the sole issue, learned counsel for the Cross Appellant had submitted that the heads of claim under special damages for the detention and loss of building materials and damages for the use and occupation of the one acre of land are two distinct and separate claims arising from the same damage and loss and contended that the Court below therefore, wrong in declining the Cross Appellants claim of damages for use and occupation on the ground that these claim had been dealt with under special damages and urged the Court to hold that the Court below had proceeded on a wrong principle of law in arriving at its decision on the issue, which is perverse and liable to be set aside and should be set aside.

It was also submitted that in law a Claimant must succeed

on the strength of his case and not on the weakness of the Defendants case and contended that it is also the law that evidence whether by affidavit or viva voce that remains uncontroverted and un-contradicted must be believed as being the truth and acted upon by the Court and urged the Court to hold that the evidence of the Cross – Appellant was direct, credible and unchallenged and the Court below ought to have acted on such evidence which is deemed in law to have been admitted. Counsel relied onPaul Okeke V. Dula Aondoakaa (2000) 9 NWLR (Pt. 6735) 501; NNB Plc V. Denclag Ltd (2005) 4 NWLR (Pt. 916) 549; Omoregbe V. Daniel Lawani (1980) 3 – 4 S.C. 108 @ p. 117.

It was conceded that in law a trial Court in all appropriate cases is entitled to reject a claim for double compensation where claims are made in respect of the same head of claim but submitted that there were no double claims in the claim of the Cross Appellant since in law for there to be double claims the Claimant must be clearly seen to have made double claim from substantially under the same head of claims and urged the Court set aside the decision of the Court below to

decline to grant relief 4 as claimed by the Cross – Appellant and to grant the same in the interest of justice. Counsel relied on Xtoudos Services Nig. Ltd V. Taisal (W. A.) Ltd (2006) All FWLR (Pt. 333) 1640; UBA V. Ogundokun (2009) 5 NWLR (Pt. 1138) 450 CA; Usong V. Hanseatic (2009) 11 NWLR (Pt. 1153) 522.

It was further submitted that in law damages for use and occupation of land start to run from the date of holding over the property and contended that it was the incumbent duty of the Court below to ascertain an amount which may constitute a reasonable satisfaction for the use and occupation of the premises held over by the tenant and in this regards while previous rent may not be conclusive, it may sometimes be a guide and urged the Court to intervene and grant the relief 4 as claimed by the Cross – Appellant against the Cross – Respondent. Counsel relied on Ayinke V. Lawal & Ors (1994) 7 NWLR (Pt. 356) 263: Chaka V. Messrs Aerobell (Nig.) Ltd (2012) 12 NWLR (Pt. 1314) 296 @ p. 323.

CROSS RESPONDENTS COUNSEL SUBMISSIONS
On the sole issue, learned counsel for the Cross Respondent had submitted that the Court below was right to

have declined the request of the Cross – Appellant for general damages for the use and occupation of the land in dispute on the ground that same will be double compensation having made an award for general damages under the claim for Special and general damages under relief 5 in paragraph 57 of the Counter-Claim and contended that though the Cross – Appellants request for damages of N5, 000, 000. 00 for use and occupation of the land in dispute is in the nature of general damages the Court below was right in awarding one amount for general damages for both claims for trespass and for use occupation of the land

It was also submitted that the arguments of the Cross – Appellant as to the award of damages for use and occupation of the land in dispute would been valid if the claim were in the nature of special damages in such a situation the Court below would have been required to make an award of those special damages in the same way as it had done for the tort of trespass since unlike general damages, special damages must be claimed specifically and strictly proved and the Court is not entitled to make its own estimate of it. Counsel relied on

Abdul Jaber V. Mohammed Basina (1952) 14 WACA 10; Dumez (Nig) Ltd V. Patrick Ogboli (1972) 1 ALL NLR 241; Benjamin Obasuyi & Anor V. Business Ventures Ltd (2000) 5 NWLR (Pt. 658) 668; Engr. Samuel D. Yalaju-Amaye V. Ass. Registered Eng. Contractors Ltd & Ors (1990) 6 SCNJ 149 @ p. 172; Henry Ezeani V. Abraham Ejidike (1964) 1 All NLR 403;

RESOLUTION OF ISSUE ONE IN CROSS APPEAL
I am aware that a Cross – Appeal is a separate and distinct appeal of its own and thus entitled by law to its own judgment. I shall therefore, proceed anon to consider it on its own merit on the sole issue as already set down for determination in this Cross Appeal.

My lords, I have in issue two in the main appeal dealt with, considered and resolved the question whether the Court below was right when it granted relief 5 on special damages to the Cross Appellant against the Cross Respondent and firmly held that the Court below was right to have done so on the evidence led by the Cross Appellant on that head of special damages claim against the Cross Respondent. The only issue in the Cross Appeal is whether or not the Court below was wrong to have struck out relief

4 dealing with another head of general damages claimed against the Cross Respondent on the ground that it would amount to double compensation, bearing in mind that relief 5 already granted was for both special and general damages as claimed by the Cross Appellant against the Cross Respondent?
Upon a review and thorough appraisal of the totality of the evidence before it on the issues of damages, special and or general, as claimed by the parties, the Court below had held inter alia thus:
The 1st Defendant is also claiming for damages and injunction. The 1st Defendant is claiming the sum of N500,000.00 as general damages as well as the sum of N500,000,000.00 per annum as damages for use and occupation together with interest at 21% per annum until final judgment and thereafter at the rate of 5% until final payment of the land in dispute. In support of these claims the 1st defendants called two witnesses who testified extensively to these claims. All the building materials purchased by the 1st defendants were listed and receipted for in sum of 1,875,000 00 and that the Claimants after chasing the 1st defendant away from the land in dispute

refused to allow them to remove the said building materials..On the issue of the 1st defendants claim for loss of use, this claim also was uncontested by the claimant. The only condition the law imposes on a claimant for loss of use is that he should mitigate his loss. This however, is in a situation where it was possible for such claimant to do so..However by the rule against double compensation if a claimants recover in full under special damages he will not recover again under the head of general damages for that would be double compensation.The sum of N2, 375, 000.00 is awarded in favor of the 1st Defendants against the Claimants as special damages together with interest at the rate of 21% per annum from the date hereof and thereafter at the rate of 50% until final payment. The Claim No. 4 is hereby struck out. See pages 1111 – 1113 in Volume III of the Record of Appeal.
On the claim of the Cross Appellant against the Cross Respondent under relief 4 for general damages, which appears to be more in the nature of another form of special damages, the law as I understand it and buttressed by a plethora of

decided cases as are replete in our law reports is that there is a distinction and very wide divide between special damages and general damages. These differences have been set out earlier under my resolution of issue two in the main appeal in this judgment. See Ijebu Ode Local Government V. Adedeji Balogun & Co (1991) 1 NWLR (Pt. 166) 36; Bello V. AG Oyo State (1986) 5 NWLR (Pt. 45) 828; UBN Ltd. V. Odusote Book Stores Ltd (1995) 9 NWLR (Pt. 421) 558.
On the totality of the pleading and evidence, particularly the fact that relief 5 claiming special and general damages had already been granted and considering the evidence as to the inchoate sub lease agreement of the Cross Respondent, which though was prior in time but turned out to be invalid, coupled with the processes the Cross Appellant had undertaken and gone through in its failed bid to obtain the consent of the Governor of Lagos State acting under its firm but apparently baseless belief that it indeed had a valid title to the land in dispute, I hold that the Court below was right, just and fair when it declined to grant further damages as claimed under relief 4 by the Cross Appellant against

the Cross Respondent. I find nothing perverse in this correct finding and decision of the Court below to warrant the intervention of this Court as sought in this Cross Appeal by the Cross Appellant. It is the law that once an appellate Court finds that the conclusion reached or decision made by a trial Court is correct, it has no duty to interfere. SeeAlhaji Ndayako & Ors V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.
I am aware, and though it is true, that unchallenged evidence is good for a Court to rely and act upon to make its findings of facts, yet the mere fact that evidence was unchallenged, without more, were it is not sufficient in proof of a fact, it would not be acted upon by the Court to make finding of a fact not proved or to grant a claim not made out by the party so claiming entitlement to it. So it is, in my finding, with the Cross Appellant as regards its claim in relief 4 in its amended statement of defense and counter claim.My lords, the Cross Appellant did not prove anything to be entitled to relief 4 in the

circumstances, facts and evidence led before the Court below. Indeed, the Cross Appellant did not show or prove how the claim for loss of earning or use of the land in dispute in the sum of N5, 000, 000. 00 per – annum was arrived at. The Cross Appellant did not furnish any evidence of valuation of earnings either of the property in dispute or similar property situate in the same area of vicinity with the property in dispute.
Honestly, I am at a loss as to how the Cross Appellant wanted the Court below on its own and now this Court on our own to arrive at such valuation of N5, 000. 000. 00 per annum. It is so bewildering to me. To require a Court to award damages under a claim of loss of earnings without any evidence or the parameter to be used through a proper valuation report is to say the least expecting too much and much more than what the Court can do on its own. I hold therefore, that this head of claim in relief 4 as counter claimed by the Cross Appellant against the Cross Respondent was rightly struck out by the Court below having not been proved by the Cross Appellant against the Cross Respondent. See Abdul Jaber V. Mohammed Basina

(1952) 14 WACA 10; Dumez (Nig) Ltd V. Patrick Ogboli (1972) 1 ALL NLR 241; Benjamin Obasuyi & Anor V. Business Ventures Ltd (2000) 5 NWLR (Pt. 658) 668; Engr. Samuel D. Yalaju-Amaye V. Ass. Registered Eng. Contractors Ltd & Ors(1990) 6 SCNJ 149 @ p. 172; Henry Ezeani V. Abraham Ejidike (1964) 1 All NLR 403.
The circumstances under which this Court would reverse the findings and decision of a trial Court as to the award and quantum of damages has been well settled. It is not merely because this Court thinks that if it had tried the case at the first instance it might have arrived at a different conclusion but rather this Court will only exercise its power to interfere with the quantum of damages awarded by a trial Court where the trial Court had acted on some wrong principles of law or where the trial Court had acted on misapprehension of facts or where it failed to take into account relevant matters or take into account irrelevant matters. In Usong V. Hanseatic (2009) 11 NWLR (Pt. 1153) 522, the Supreme Court reiterated this point inter alia thus:
In order to justify reversing or interfering with the amount of damages awarded by a

trial Court, it will generally be necessary for the appellate Court to be convinced that: a). the trial Court acted upon a wrong principle of law; or
b). the amount awarded was so extremely high or very small as to make it, in the opinion of the appellate Court, an entirely erroneous estimate of the damages to which the claimant is entitled. See also UBA V. Ogundokun (2009) 5 NWLR (Pt. 1138) 450 CA.
In the light of the findings that the Court below was right in striking out relief 4 as claimed by the Cross Appellant against the Cross Respondent. I hereby resolve the sole issue for determination in the Cross Appeal against the Cross Appellant in favor of the Cross Respondent. Consequently, the Cross – Appeal lacks merit and is liable to be dismissed. It is hereby so dismissed.

Cross Respondent was struck out is hereby affirmed.
I make no order as to cost.

TOM SHAIBU YAKUBU, J.C.A.: Having perused the reasons proffered in the lead judgment, rendered by my learned brother, BIOBELE ABRAHAM GEORGEWILL, JCA, I am in agreement with His Lordship, to the conclusive effect that both the main appeal and the cross- appeal have no merits. Therefore, I too, dismiss each of them.
Each side shall bear its own costs of the appeal

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I agree.

Appearances:

For Appellant(s)

For Respondent(s)

Appearances

For Appellant

AND

For Respondent