AMU v. UKUTA (2020)

AMU v. UKUTA

(2020)LCN/14087(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/E/386/2014

Before Our Lordships:

Monica Bolna’an Dongban-Mensem Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Between

HON. FELIX AMU APPELANT(S)

And

CHIEF MAXIMUS UKUTA RESPONDENT(S)

RATIO

BURDEN OF PROOF IN DECLARATION OF TITLE TO LAND

The law is trite that the first burden on a party who seeks a declaration of title to land is to identify with precision the land to which his claim relates. The burden can be discharged by a clear description of the boundaries and features of the land from which a survey of the land can be produced or by presenting a plan indicating the location, the size and the boundaries of the land. PER BOLAJI-YUSUFF, J.C.A.

FACTORS TO BE PROVED BY A PARTY RELYING ON A LAND INSTRUMENT AS HIS ROOT OF TITLE

The law is settled that a party relying on a land instrument as his root of title must prove that (i) the document is genuine and valid; (ii) it has been duly executed, stamped and registered; (iii) the grantor had the authority and capacity to make the grant; (iv) the grantor had in fact what he purported to grant; and (v) the grant has the effect claimed by the holder of the instrument. See DABO V. ABDULLAHI (2005) LPELR-903(SC) AT 33-35 (G-A). AYANWALE V. ODUSAMI (2011) LPELR- 8143 (SC) AT 27-28 (C-A). PER BOLAJI-YUSUFF, J.C.A.

WHERE A DOCUMENT PURPORTING OR PROVED TO BE TWENTY YEARS OLD IS PRODUCED FROM ANY CUSTODY OF THE COURT

However, Section 155 of the Evidence Act provides that:
“155. Where any document purporting or proved to be 20 years old or more is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person’s handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.”
Similar provisions as Section 155 of the EVIDENCE ACT, 2011 have been considered in many cases. See AYANWALE V. ODUSAMI (SUPRA) AT 20-21 (D-B), where the Supreme Court held that:
“Section 123 of the Evidence Act states that: “123. Where any document, purporting or proved to be twenty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document which purports to be in the hand writing of any particular person is in that persons handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested”. Where a person has been in possession of land for 20 years or a long time and he produces from his custody his title deeds, the custody is proper. By the provisions of Section 123 of the Evidence Act if documents are not less than 20 years at the time of trial in which they are to be used the Court will presume that they were properly signed by the person whose signature they bear. This reasoning is founded on necessity and convenience bearing in mind that it is difficult and at times impossible to prove the signature, handwriting or execution of documents over 20 years old as most of the people acquainted with the signature etc would be dead, or if alive their memories may have faded.”PER BOLAJI-YUSUFF, J.C.A.

WHETHER OR NOT PERSONAL REPRESENTATIVES OF A DECEASED PERSON SHALL BE DEEMED TO BE HIS HEIRS

It is settled by statute and case law that a personal representative for the time being of a deceased person shall in law be deemed to be his heirs and assigns and the real estate to which the deceased is entitled and not ceasing on his death shall devolve from time to time on the personal representative to be held in trust for the person entitled intestacy or by will. Such personal representative has the capacity to institute an action in respect of the real estate even in where Letters of Administration has not been obtained. See Section 73 of the Administration of Estate Law of Enugu State which provides that:
73. (1) “Real estate to which a deceased person was entitled for an interest not ceasing on his death shall on his death, and notwithstanding any testamentary disposition thereof, devolve from time to time on the personal representative of the deceased to be held on trust for persons entitled thereto either on intestacy or by Will, subject to the payment there from in appropriate cases of the deceased person’s just debts, funeral and testamentary expenses.
(2) The personal representative for the time being of a deceased person shall be deemed in law to be his heirs and assigns within the meaning of all trusts and powers.
(3) the personal representative shall be the representatives of the deceased in regard to his real estate to which he was entitled for an interest not ceasing on his death as well as in regard to his personal estate.”
See also OKONYIA V. IKENGAH (2001) NWLR (PT. 697) PAGE 336 AT 361, UPPER GRACE LAND HOTEL LTD. & ANOR. V. IPEH (2019) LPELR-47552 (CA) AT 15(C-F). MAJOMI & ORS V. HON. MINISTER OF FCT & ORS. (2018) LPELR- 44446 (CA) at 18 –19 (E-A). PER BOLAJI-YUSUFF, J.C.A.

TRESPASS TO LAND

Trespass to land is a wrongful and unlawful entry into a land which is in actual or constructive possession of another. Any unlawful interference with possession, however slight, amounts to trespass. The law is trite that trespass is actionable per se without prove of actual damage.

There is no strict rule guiding the Court on the quantum of damages that can be awarded but the Court must exercise its discretion based on the evidence before the Court particularly the manner of the unlawful entry on the land and the nature of the trespass. Where no actual damage is caused and special damages are not claimed, the award of damages is nominal. However, a nominal damage does not necessarily mean small damages. PER BOLAJI-YUSUFF, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State delivered on 30/9/2013 in suit no. N/50/2004. The respondent as the plaintiff instituted the suit and claimed a declaration that he is entitled to a certificate of occupancy over a piece of land situate at Nsukka covered by a deed of conveyance registered as NO. 17 Page 17 in volume 222 of the register of deeds in the Lands Registry, Enugu, 5 Million Naira damages for trespass and perpetual injunction to restrain the appellant from further entry and committing further acts of trespass on the land.

The Respondent’s case is that some elders and OHAS of Echara Community granted a piece of land to his father in 1942 and an agreement evidencing the grant was executed in his favour. In 1960, another document registered as No. 17 page 17 volume 222 was also executed in favour of his father in respect of the same land. His father exercised diverse acts of possession on the land until his death and the acts of possession continued when the respondent inherited the land. The appellant trespassed on a portion of

the land by dumping sand, erecting a fence and a gate thereon.

The Appellant’s case is that the land in dispute was never sold to the respondent’s father by the community. He averred that he acquired interest in the land in dispute through various persons who donated Power of Attorney to him over several pieces of land which the respondent claims. Both parties called their witnesses and tendered documents in support of their pleadings.

The Court in its considered judgment found the case of the respondent to be more probable and believable than that of the appellant. The Court entered judgment in favour of the Respondent and granted all the reliefs sought.

Aggrieved by the judgment of the trial Court, the Appellant filed a notice of appeal containing one ground of appeal against the judgment on 23/12/2013 which was amended by an order of this Court made on 12/2/2018. The amended notice of appeal contains twelve (12) grounds of appeal. The Appellant’s brief of argument was filed on 8/2/2018 and deemed as properly filed and served on 12/2/2018. The Respondent’s brief was filed on 26/4/2018 and deemed as properly filed and

served on 10/2/20. Appellant’s reply brief filed on 16/10/18 was also deemed as properly filed and served on 10/2/20.

The Appellant formulated the following issues which were adopted by the Respondent for the determination of this appeal:
“(a) Whether on the pleadings and evidence led, the trial Court was right in holding that the Plaintiff Respondent proved his case on preponderance of evidence and probabilities (Grounds 1, 4, 5, 6, 7, 8, 9, 10 and 11).
(b) Whether the Trial Court was right in holding that the Plaintiff Respondent has the locus standi to sue (Grounds 2 and 3).
(c) Was the trial Court right in awarding general damages of N2.5 million to the Plaintiff Respondent who did not give any damages he suffered (sic) (Ground 12).

On issue one, the appellant submitted that a plaintiff who claims declaration of title to the land in dispute must plead and establish such title by any of the 5 ways stipulated in IDUNDUN V OKUMAGBA & OTHERS (1976) 1 NMLR 200, 210-211 by credible evidence. It is the contention of the appellant that Exhibit B, the document which the respondent relied on as his root of title is worthless

as it is not signed. He referred to LONESSOME OKOI OFEM & ORS V PRESBYTERIAN CHURCH OF NIGERIA (2012) ALL FWLR (PART 647) 801 AT 813 (A-B). YUSUF V ADEGOKE (2007) 4 SCNJ 77 AT 88. It is the further contention of the appellant that the trial Court fell into error when it held that Exhibit B, meets the conditions set out in Sections 146,147,161 and 154 of the Evidence Act 2011 to qualify it for the presumption under Section 155, Evidence Act 2011. He argued that for a document to enjoy the presumption of genuineness under Section 155 of the Evidence Act, the document must be 20 years old as at the date of contract. The contract in this case was purportedly made on 12/9/42 while Exhibit B was executed on 18th May 1960 less than 18 years and was not signed by anybody. Therefore, it is void and any purported transaction founded on it is also void and of no effect whatsoever. He referred to JOHN VS. LAWANSON (1971) ALL NLR 58 AT 64; EBUEKU V. AMOLA (1988) 2 NWLR (PT. 75) 128; GANGARIYA VS. RTMCN (1992) 4 NWLR (PT 238) 763 AND AGBONIFO VS. AIWEREOBA (1988) 7 NWLR (PT. 70) 320.

It is also contended that the evidence led by the Respondent and his witnesses

are inconsistent with the pleading while the evidence of DW2 and DW4 unequivocally point to the fact that the Echara people are the customary and original owners of the land and there was no need to conduct a search anywhere over their land before dealing on it in any manner they like.

On the issue of invalidity of the Powers of Attorney tendered by the appellant, counsel referred to ARJENDA HIRAN MELWANI VS FIVE STAR INDUSTRIES LTD (2002) FWLR (PT. 94) 31 AT 52 ( E). FAMFA OIL LIMITED VS. ATTORNEY GENERAL OF THE FEDERATION & ANOR. (2003) FWLR (PART 184) 195 AT 209. He submitted that failure to indicate or write the name of the magistrate who authenticated the documents is a sin which cannot be visited on the appellant since the appellant presented the document to the registry of the Court and paid the assessed fees. Counsel argued that the conclusion of the trial Court that the document is tainted, worthless and cannot be said to have been properly executed as the name of the magistrate who authenticated the document is not on it is unjustified and has occasioned a miscarriage of justice more so when the appellant was not relying entirely on

documents as sources of his title to the land in dispute but also pleaded that the entire transactions leading to the donation of the land to him were under the native law and custom but later reduced into writing and transaction on land under the native law and custom need not be in writing for it to be valid.

In response to the above submissions, the Respondent submitted that the trial Court rightly found as a fact that Exhibit B was signed by the grantors, the respondent led credible evidence to link the document to the land in dispute, the document is over 50 years old, it was duly signed, stamped and registered and nothing whatsoever was done to destroy or challenge it by way of cross- examination of the respondent’s witnesses whose evidence was not contradicted including the appellant who testified as PW5. He referred to JULES V AJANI (2001) FWLR (PT.45) 763.

On Exhibits C, E, F and G, the Powers of Attorney tendered by the appellant, the respondent submitted that the none indication of the name of the Magistrate who authenticated documents of very doubtful source and origin in 1999 over a particular land which only became available

around 2000 – 2004 is not a mistake of Court officials but confirmed the fact that the documents are not genuine. It is further submitted that Exhibits C, E, F and G materially contradict the testimonies of DW1- DW8 in Court and it is trite that where a witness tells a lie in a matter he has personal knowledge of, neither his statement nor his document will be accorded any probative value. He referred to Kwari V Rago (2000) FWLR (PT.22)1129, 1135, Ratio 10; Daggash V Bulama (2004) 14 NWLR (PT.1471) 1102. It is the contention of the respondent that each of Exhibits C, F and G is a fraud as they pre-date the tenure of John Alumona as the chairman of Achara Land Committee that they all admitted allocated or shared the land to them.

In his reply to the above submissions, the appellant submitted that the document dated the 12th day of September, 1942 on the face of it, shows that the purported grantees are illiterates and that is why it has a purported jurat. He argued that assuming without conceding that the document dated 12/9/42 was signed by the alleged makers, they did so without knowing what they were doing. The description of the transaction and size of

the land was in English language. None of the persons named therein signed the document. The purported jurat does not meet the requirement of Section 2, the illiterates Protection Law, Cap 93 Revised Laws of Enugu State 2004 which requires the writer of such a document to state his name and address on the document.

RESOLUTION:
The law is trite that the first burden on a party who seeks a declaration of title to land is to identify with precision the land to which his claim relates. The burden can be discharged by a clear description of the boundaries and features of the land from which a survey of the land can be produced or by presenting a plan indicating the location, the size and the boundaries of the land. In the instant case, the respondent pleaded in paragraph 5 of his statement of claim that the extent and dimension of the land granted to his father is indicated on plan no. EL.6 made by License Surveyor J.T. JOHN on 14/2/1958 and countersigned by the Director of Surveys, Eastern Region, Enugu on 14/7/1958 attached to Exhibit B as well as plan no. CUO/EN/D.02./2005 dated 15/2/2005, made by C.U. OZOUDE, Licensed Surveyor. The later plan was

tendered as Exhibit D. It shows the land granted to the Respondent’s father and the area trespassed upon by the appellant and the cause of dispute. The Appellant pleaded and tendered plan no. CSS/EN /D21/2006 as Exhibit D to show the land claimed by the Respondent. The appellant’s plan also showed that the areas verged blue, yellow and green which the appellant claimed to have acquired through various persons who donated Powers of Attorney to him are inside the land claimed by the respondent. The surveyor that produced Exhibit D testified as PW1. In his statement on oath, he confirmed the fact that Exhibit D made reference to the survey attached to Exhibit B. From the entire pleadings and the evidence on record including the two plans tendered by both parties, there is no doubt that the parties knew the land claimed by the Respondent and the portion trespassed on by the Appellant which is the cause of dispute in this case. It is also clear that the land claimed by the respondent verged blue in Exhibit A and verged red in Exhibit D is the same as the land shown in the plan attached to Exhibit B as the land granted to the Respondent’s father.

The Respondent identified the land in respect of which he sought a declaration and injunction with certainty. In the face of Exhibits A, D and the plan attached to Exhibit B, the finding of the trial Court that the discrepancies and inconsistencies in the numbering of the survey plan attached to Exhibit B and Exhibit A are not substantial to invalidate the documents before the Court and do not go to the root of the claim is well grounded on facts and in law.

The Respondent relied on documents executed in favour of his father as his root of title. The law is settled that a party relying on a land instrument as his root of title must prove that (i) the document is genuine and valid; (ii) it has been duly executed, stamped and registered; (iii) the grantor had the authority and capacity to make the grant; (iv) the grantor had in fact what he purported to grant; and (v) the grant has the effect claimed by the holder of the instrument. See DABO V. ABDULLAHI (2005) LPELR-903(SC) AT 33-35 (G-A). AYANWALE V. ODUSAMI (2011) LPELR- 8143 (SC) AT 27-28 (C-A).

However, Section 155 of the Evidence Act provides that:
“155. Where any document purporting or

proved to be 20 years old or more is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person’s handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.”
Similar provisions as Section 155 of the EVIDENCE ACT, 2011 have been considered in many cases. See AYANWALE V. ODUSAMI (SUPRA) AT 20-21 (D-B), where the Supreme Court held that:
“Section 123 of the Evidence Act states that: “123. Where any document, purporting or proved to be twenty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document which purports to be in the hand writing of any particular person is in that persons handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and

attested”. Where a person has been in possession of land for 20 years or a long time and he produces from his custody his title deeds, the custody is proper. By the provisions of Section 123 of the Evidence Act if documents are not less than 20 years at the time of trial in which they are to be used the Court will presume that they were properly signed by the person whose signature they bear. This reasoning is founded on necessity and convenience bearing in mind that it is difficult and at times impossible to prove the signature, handwriting or execution of documents over 20 years old as most of the people acquainted with the signature etc would be dead, or if alive their memories may have faded.”
Exhibit B was executed in 1960 which is well over 20 years at the time the dispute arose and at the time of trial. The presumption that it was duly executed by the persons by whom it purports to be executed applies in favour of the respondent.

All the issues of the executors of the document being illiterates raked up by the appellant in his reply brief go to no issue as the issues were not raised in the appellant’s pleadings or at trial. The law is settled

that material facts on which a party intends to rely in support of his case or in defence thereof must be pleaded and evidence led in support. Counsel’s address no matter how brilliant is not a substitute for pleadings and evidence. The fact that the executors of the documents did not know what they signed is a fact which ought to have been pleaded and evidence led and not one that can be raised for the first time in an appeal and in an appellant’s reply brief. In any case, the fact that the executors signed another document in favour of the same land in 1960, 18 years after the first one signed in 1942 belie the assertion that they did not know what they signed. The trial Court carried out a detailed evaluation of the entire evidence led and held as follows:
“Exhibit B is duly signed and sealed by the within named parties. These grantors further put their thumbprints on the agreement which was properly interpreted to them and so endorsed. A survey plan was issued to the grantee. It was duly registered by the grantee in 1960. Therefore the cardinal principle of law that pertains to the rules as to presumption favourably apply to this

Exhibit B. These rules including Section 146 EA i.e presumption as to genuiness of the certified copy; Section 147 EA also the presumption of genuiness; Sections 151 and 154 EA on presumption as to the due execution of documents; Section 155 EA on the presumption of due execution and attestation and finally Section 159 of the Evidence Act 2011, all favourably apply to Exhibit B. The said Exhibit B is more than 20 years old. Exhibit B is a Certified True Copy of the original deed of conveyance registered in favour of the plaintiff’s late father and admissible evidence. In addition, it was produced in evidence by the plaintiff himself which is the proper custody. In the final analysis all the foregoing considerations give rise to the presumption of due execution of the document Exhibit ‘B’. Further they also give rise to the presumption of genuiness, validity and authenticity, stamping and registration.
See the SUPREME COURT CASE OF JULES V. AJANI (SUPRA) THOMPSON V. AROWOLO (SUPRA) AND IDUNDUN V. OKUMAGBA (SUPRA) WHEREIN THE CASE OF CARDOSO V. DANIEL (1986) 2 NWLR (PT.20) was referred to.
Finally the denial of the transaction with the

plaintiff’s father by the present committee of Echara people has been dealt a fatal blow. The denial is false and goes to indicate that most of the defence claims are really concocted and false.
In consideration of all the above, I am satisfied that plaintiff firmly established his root of title by Exhibit ‘B’ and that the Ohas and Elders of Echara granted the land to his father. Moreover that the deed of conveyance was properly executed and authenticated and has been established to be genuine and valid. Also i am satisfied that the plaintiff did prove that they were in possession of the disputed land by the evidence of PW2, PW3 and PW4 which were never contradicted. His possession is accordingly not in doubt. The identity of the land is also established with certainty. I am therefore satisfied that the plaintiff has proved his claim on a preponderance of evidence and balance of probabilities.”

From the entire evidence on record, it is not in doubt that the land in dispute which was granted to the respondent’s father in 1942 was allocated by the Echara Land Committee between 2000 and 2004 when DW4 was the chairman of the

said committee to various individuals who sold to the appellant. As at 2000, the community had divested itself of title to the land several decades before that period. They had nothing to grant to the individuals who sold to the appellant. The fact that the respondent and before him, his father had been in possession and exercising diverse acts of possession is also not in doubt. In my view, the issue of the authentication and validity of the appellant’s documents is irrelevant in this case. Even if the documents have been properly executed and authenticated, they would have no effect on the interest and title of the respondent to the land.

The law is settled that evaluation and ascription of probative value to the evidence led at the trial is a primary duty of the trial Court. Where the trial Court has performed that duty and made correct findings, the Appellate Court has no power to embark on re evaluation of the evidence or disturb the finding. I have considered the evidence and the evaluation of same by the trial Court, I have no reason whatsoever to disturb the finding and conclusion of the Court that on the preponderance of evidence, the

respondent proved his claim and is entitled to judgment. Issue 1 is resolved in favour of the respondent.

On issue 2, the appellant’s contention is that the respondent did not obtain and does not have Letters of Administration to administer the estate of his deceased father because the subject matter of this dispute as presented by the respondent is now vested in the Court by Section 81 of the Administration of Estate Law of Enugu State and where the estate of the deceased is vested in the Court, only the Court can sue to protect it. Therefore the respondent has no locus standi to bring this action. He referred to AYISATU ALAKE V. ABULAH AKANBIHALI (1935) 12 NLR 22 at 25.

In response to the above submissions, the respondent referred to Sections 73 (1), (2) , 96 (2) and 120 of the Administration and Succession (Estate of Deceased persons) Law, Laws of Anambra State 1986 then applicable to Enugu State. He submitted that the fact that the respondent is the heir and sole male successor to the estate of his father is not in contention by the appellant. He further submitted that the respondent as heir and assign to the estate of his late father and a

personal representative is entitled in law to bring this action. He relied on Re. Obianwu (1999)12 NWLR (PT.629) 78 at 80 Ratio (5), Okonyia V Ikengah (2001) FWLR (PT.53) 158, at 162. ln Otukpo v John (2008) 8 NWLR (PT.669) 507 AT 513. He also submitted that when a man dies intestate as in this case, his property becomes a family property for the beneficiaries and a member of the family can bring an action to protect the interest of the family.

RESOLUTION
It is settled by statute and case law that a personal representative for the time being of a deceased person shall in law be deemed to be his heirs and assigns and the real estate to which the deceased is entitled and not ceasing on his death shall devolve from time to time on the personal representative to be held in trust for the person entitled intestacy or by will. Such personal representative has the capacity to institute an action in respect of the real estate even in where Letters of Administration has not been obtained. See Section 73 of the Administration of Estate Law of Enugu State which provides that:
73. (1) “Real estate to which a deceased person was entitled for an

interest not ceasing on his death shall on his death, and notwithstanding any testamentary disposition thereof, devolve from time to time on the personal representative of the deceased to be held on trust for persons entitled thereto either on intestacy or by Will, subject to the payment there from in appropriate cases of the deceased person’s just debts, funeral and testamentary expenses.
(2) The personal representative for the time being of a deceased person shall be deemed in law to be his heirs and assigns within the meaning of all trusts and powers.
(3) the personal representative shall be the representatives of the deceased in regard to his real estate to which he was entitled for an interest not ceasing on his death as well as in regard to his personal estate.”
See also OKONYIA V. IKENGAH (2001) NWLR (PT. 697) PAGE 336 AT 361, UPPER GRACE LAND HOTEL LTD. & ANOR. V. IPEH (2019) LPELR-47552 (CA) AT 15(C-F). MAJOMI & ORS V. HON. MINISTER OF FCT & ORS. (2018) LPELR- 44446 (CA) at 18 –19 (E-A). There is no doubt that the land in dispute belonged to the respondent’s father. There is also no doubt that the

interest of the respondent’s father did not cease on his death. Either by custom or the Administration of Estate Law, the land devolves on the deceased heir(s). The respondent as the heir and beneficiary of the estate is entitled to protect his interest in the land which interest was being threatened by the appellant’s act of trespass on the land whether or not Letters of Administration has been obtained. See KOLADE & ORS. V. OGUNDOKUN (2017) LPELR-48001 (SC) AT 9-14. The holding of the trial Court that the respondent being the heir and the only surviving son of his late father has the locus standi to institute the suit is unassailable. It accords with the law. Issue 2 is resolved against the appellant.

On issue 3, the appellant submitted that the Trial Court misconceived the pleadings and evidence when it awarded general damages of N2.5 Million to the respondent because the damages available to a plaintiff in a land matter where special damages are not claimed is nominal damages and general damages are awarded only if the claimant proves or establishes the quantum of damages claimed.

In his response, the respondent submitted that

damages for trespass is not granted on the basis of prove of actual damages as the law is trite that trespass is actionable per se. The claimant need not prove actual damages. All that the claimant needs to prove is an unlawful interference with his right which in this case is land.

RESOLUTION:
Trespass to land is a wrongful and unlawful entry into a land which is in actual or constructive possession of another. Any unlawful interference with possession, however slight, amounts to trespass. The law is trite that trespass is actionable per se without prove of actual damage.

dispute. He harvested the economic trees on the land, erected a fence and installed a gate thereon. Under cross examination, he confirmed that he harvested pears, guava and coconut. He also confirmed that the economic trees he harvested were between 20 and 40 years old. Considering the evidence on the nature of the trespass committed on the land in dispute which was proffered by the appellant himself, the Trial Court exercised its discretion judicially and judiciously. The award of N2.5 Million Naira as general damages for the trespass committed by the appellant cannot be said to be unreasonable or excessive. Issue 3 is resolved against the appellant.

In conclusion, I hereby hold that this appeal lacks merit. It is hereby dismissed. There shall be N100,000.00 costs in favour of the Respondent and against the Appellant.

MONICA BOLNA’AN DONGBAN – MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother; MISITURA OMODERE BOLAJI-YUSUFF, JCA which is very explicit and conforms with the law and practice of land litigation and precedent which have been demonstrated in the lead Judgment.
I have nothing useful to add. I adopt

the lead Judgment as mine.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.
For the more detailed reasoning in the lead judgment, I equally find no merit in this appeal and I hereby dismiss it.
I equally adopt the consequential orders in the lead judgment as mine.

Appearances:

Chike P. Omeje For Appellant(s)

C. Madu For Respondent(s)