ADEJUYIGBE v. DEBORAH & ORS (2020)

ADEJUYIGBE v. DEBORAH & ORS

(2020)LCN/14701(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Monday, October 05, 2020

CA/B/239/2008

RATIO

LAND LAW: WAYS OF PROVING TITLE TO LAND

The law is well settled beyond any equivocation that, title to land can be established by any one of the following five methods, viz: (a) by traditional evidence; (b) by production of document of title, which are duly authenticated; (c) by acts of selling, leasing, renting out all or part of the land, or farming on it, or on a portion of it; (d) by acts of long possession and enjoyment of the land; and (e) by proof of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. To mention just a few of the plethora of judicial authorities on this age-long legal principle, are the cases of: (1) Idundun v. Okumagba (1976) 9-10 SC p. 227; (2) Nkado v. Obiano (1997) 5 NWLR (Pt. 503) p. 31; (3) Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) p. 628; (4) Madu v. Madu (2008) 6 NWLR (Pt. 1083) p. 296; (5) Ayanwale v. Odusami (2011) 18 NWLR (Pt. 1278) p. 328 and (6) Atanda v. Iliasu (Supra). PER OMOLEYE, J.C.A.

LAND LAW: REQUIREMENT OF PROVING TITLE TO LAND BY PRODUCTION OF TITLE DOCUMENT

The law is trite that production of title documents alone is not enough to prove title to land, rather, a claimant must further trace the root of his title to the person whose ownership of the land has been established. On this well-established legal position, the Apex Court per Ogundare, J.S.C. (of blessed memory) in the case of: Lawson & Anor. v. Ajibulu & Ors. (1997) 6 NWLR (Pt. 507) p. 14, had the following to say: “Production of documents of title alone is not sufficient to discharge the onus on a plaintiff to prove the title he claims; he must go further to trace the root of his title to one whose ownership of the land has been established.”
Also, this Court earlier on in the case of: Akinbami v. Oando Plc. & Ors. (2013) LPELR-21843 per Galinje, J.C.A. (as he then was, now J.S.C. Rtd.) held that: “The law is settled that a mere production of documents of title, such as certificate of occupancy and sales agreement does not confer title in respect of a parcel of land it purports to cover on the party that produced such documents unless he had the title before the certificate was issued to him. See Kyari v. Alkali (2001) FWLR (Pt. 60) 1481, (2001) 11 NWLR (Pt. 724) 412; Ogunleye v. Oni (1990) 2 NMLR (Pt. 135) 745, Section 34, Land Use Act.”
A purchase receipt therefore does not in itself convey title or legal estate in a landed property to the purchaser. It can thus merely be tendered as proof of actual purchase or exchange of money between the vendor of the land and the purchaser. The position of the law thus is that, the root of title of the grantor must be proved to show that the grantor indeed had what he purported to grant to the purchaser. In the case of: Romaine v. Romaine (1992) 4 NWLR (Pt. 238) p. 650, the Supreme Court per Nnaemeka-Agu, J.S.C. (of blessed memory) held that: “One of the recognised ways of proving title to land is by production of a valid instrument of grant. See Idundun v. Okumagba (1976) 9-10 SC 227; Piaro v. Tenalo (1976) 12 S.C. 31, p. 37; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) p. 718. PER OMOLEYE, J.C.A.

LAND LAW: QUESTIONS THE COURT INQUIRE INTO WHERE A PARTY PRODUCES AN INSTRUMENT OF GRANT

But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of questions, including: (i) whether the document is genuine and valid; (ii) whether it has been duly executed, stamped and registered; (iii) whether the grantor had the authority and capacity to make the grant; (iv) whether the grantor had in fact what he purported to grant; and (v) whether it has the effect claimed by the holder of the instrument.”
See also the cases of: (1) Dabo v. Abdullahi (2005) LPELR-903 (SC); (2) Akinduro v. Alaya (2007) 15 NWLR (Pt. 1057) p. 313 at p. 329; (3) Agboola v UBA Plc. & Ors. (2011) LPELR-9353 (SC) and (4) Arije v. Arije (2011) 13 NWLR (Pt. 1264) p. 265. PER OMOLEYE, J.C.A.

DECLARATORY RELIEFS: DUTY OF A PLAINTIFF IN CLAIMS FOR DECLARATORY RELIEFS

It is also well settled in law that, in claims for declaratory reliefs, including land matters, the Plaintiff is strictly required to plead and prove his claims on the evidence adduced by him without relying on the evidence called by the Defendant, even where the evidence of the latter supports his claim. This statement of the law has long been laid down by the Apex Court and followed by this Court in innumerable judicial authorities. In the case of: Bello v. Eweka (1981) LPELR- 765, the Supreme Court per Obaseki, J.S.C. (of blessed memory) captured the legal position as follows: “It is true as was contended before us by the Appellant’s Counsel that the Rules of Court and Evidence relieve a party of the need to prove what is admitted, but where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleadings of the Defendant that he is entitled. The necessity for this arises from the fact that the Court has a discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence. See Kodilinye v. Mbanefo Odu 2 WACA 336 at 337. In that case, i.e. Kodilinye v. Mbanefo Odu … Webber, C.I., Sierra Leone, delivering the judgment of the Court said: “The onus lies on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title.” See also Akinola & Ors. v. Oluwo & 2 Ors. (1962) WNLR 135.”
See further the cases of: (1) Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) p. 361; (2) Addah & Ors. v. Ubandawaki (2015) LPELR-24266 (SC); (3) Emenike v. P.D.P. (2012) LPELR-7802 (SC) at 27 D-G and (4) Akinbade & Anor. v. Babatunde & Ors. (2017) LPELR-43463 (SC). PER OMOLEYE, J.C.A.

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

BANJI ADEJUYIGBE APPELANT(S)

And

1. MADAM ADEMORINA DEBORAH 2. OMOTOLA AMOS (MRS.) 3. ADEWALE FOLAKE (MRS.) RESPONDENT(S)

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State per Osoba, J. (hereinafter referred to as “the trial Court”) in Suit No. AK/142/2003 delivered on the 26th day of June, 2007.

The background facts of this matter from the perspective of the Appellant are that, although the farmland in dispute was originally part of a larger parcel of land belonging to the family of Adegbonmire Orikiloija, it was allotted to one Albert Owadayo (not a family member) by the said family. At the time of the allotment, there was an understanding that, should the said Albert Owadayo wish to dispose of the land in the future, the disposal must be made in favour of any willing member of the Adegbonmire Orikiloija family. It was in this vein therefore that, on the 27th day of December, 2002 the farmland was sold to the Appellant by Albert Owadayo. At the time the Appellant took possession of the farmland, there were economic crops thereon which had fetched him huge sums of money. However, sometime on the 27th day of April, 2003, the three Respondents, who are also claiming

ownership of the farmland, were alleged to have entered into the farmland and destroyed all the crops thereon. Sequel to the destruction of the crops on the farmland, the Appellant sued the Respondents to the trial Court vide his Writ of Summons and Statement of Claim filed on the 20th of May, 2003 and 13th of June, 2003 respectively and claimed against the Respondents as follows:
“1. A declaration that he, Plaintiff is entitled to a Certificate of Occupancy in respect of a parcel of farmland measuring 1.462 hectares, situate, lying and being at Osa, off Ijoka Road, Akure, and bounded as follows:
On the 1st side by Ebun Adegite’s coca farmland;
On the 2nd side by Adanlawo’s cocoa farmland;
On the 3rd side by Adejubu Aladesanmi’s cocoa farmland, AND
On the 4th side by the farmland of one Akinlolu Aladesanmi.
2. A sum of two million naira (N2,000,000.00) being special and general damages for trespass committed on the said farmland on Sunday, the 27th day of April, 2003, and still being committed thereon by the Defendants for their wrongful entry upon the land and the damage done to the Plaintiff’s various farm crops

which were destroyed thereon.
PARTICULARS OF SPECIAL DAMAGES.
(i) Cocoa Trees: 3 acres at N400,000.00 per acre N1,200,000.00
(ii) 50 Kolanut Trees at N3, 000.00 per tree N150,000.00
(iii) 3 Walnut Trees at N1,000.00 per tree N3,000.00
(iv) 30 Orange Trees at N2,500.00 per tree N75,000.00
(v) 12 Palm Trees at N5,000.00 per tree N60,000.00
(vi) 50 Plantain stands at N200.00 per stand N10,000.00
(vii) 55 Pine-apple stands at N50.00 per stand N2750.00
N1,500,750.00
General Damages for Trespass N499,250.00
N2,000,000.00
3. An order of perpetual injunction restraining the Defendants, their servants, privies and/or agents from entering upon the said parcel of land for any purpose whatsoever.”

After the exchange of pleadings by the parties, the case proceeded to trial. In the bid to establish his claims against the Respondents, the Appellant gave evidence and fielded three additional witnesses and tendered three documentary evidence. On the other part, the Respondents in defence of the claims of the Appellant fielded two witnesses, that is, the 1st and 2nd Respondents and tendered in evidence one

document. The parties’ learned Counsel filed, exchanged and adopted the written addresses in substantiation of their opposing positions in the case. In the considered judgment of the trial Court delivered on the 26th day of June, 2007, the trial Court held that, the Appellant failed to discharge the onus of proof placed on him by law to establish his claims against the Respondents. The case of the Appellant was therefore dismissed by the trial Court.

It irked the Appellant that he lost the suit, hence, he filed this appeal to this Court against the judgment of the trial Court, on the 23rd of July, 2007. This Court granted leave to the Appellant on the 11th of February, 2016 to amend the original Notice of Appeal. The Amended Notice of Appeal of nine grounds of appeal, dated the 19th of June, 2016 was filed within time on the 22nd of February’, 2016. The nine grounds of appeal short of their particulars are hereunder set out verbatim for good understanding and ease of reference as follows:

”GROUND I
That the decision of the trial Court is against the weight of evidence.
GROUND II

The learned trial Judge erred in law and thereby

came to a wrong conclusion when she held at page 64-65 of the record of appeal as follows: “From the pleadings and totality of evidence adduced by parties in this case, I am satisfied that the land in question belonged to the Adegbonmire Orikiloija family, that parties are members of this family, that the land is located at Osa off Ijoka Road, Akure and that there was an attempt by the Deli of Ajure to arbitrate on this case. All parties agreed and I therefore find as a fact that Albert Owadayo a none member of the family was the one tendering the farm and that there is no controversy that there was an agreement with him to sell the land to a member of the family when he was relocating to Akoko.”
GROUND III
The learned trial Judge erred in law and therefore came to a wrong conclusion when His Lordship held at page 65 of the record of appeal as follows: “The question bothering my mind is why would the plaintiff need to take Owadayo to the 2nd Defendant if she did not has a right to the land in dispute why did he not negotiate and but straightaway? I am inclined to believe the version of the 2nd Defendant that Owadayo worked for the 2nd

Defendant’s mother with an agreement to sell to her daughter, so that the land and the crop therein will revert to her.”
GROUND IV
The learned trial Judge misdirected herself and thereby came to a wrong conclusion when she held at page 67 of the record as follows: “The evidence of PW3 contradicts that of plaintiff when he said that it was Baba Adegbomire that allowed Owadayo on the land, the plaintiff on the other hand said it was Adegite.”
GROUND V
The learned trial Judge erred in law when his Lordship held at page 67 of the record as follows: “In Kimdey & Ors. vs. Government of Gongola State (1988) 5 SCNJ p. 28 it was held that evidence of a party which support the case of the other side is always acceptable as evidence against the interest of the party and should not be rejected on the ground that it is contradictory. Owadayo testified that Fatugbo sent him to plaintiff to give him land on which to farm.”
GROUND VI
The learned trial Judge erred in law when she said at page 67 of the record as follows: “From the evidence before the Court it would appear that members of the family had been given plots of land

and the law as laid down in Ojengbede vs. Esan & Anor. (2001) SCNJ p. 40 is that where a family land has been partitioned sale by sub family other than to whom the land is allotted is void.”
GROUND VII
That the trial Judge erred in law by holding that there was an existing agreement between PW1 Mr. Owodayo and Fatugbo the mother of the 2nd Respondent to sell the said land in dispute to the 2nd Respondent.
GROUND VIII
That the trial Judge erred in law by holding that the Appellant does not possess good title to the farmland in dispute.
GROUND IX
That the trial Judge erred in law by not addressing the claim of trespass, damages and injunction raised by the Appellant’s Counsel during the trial.”

In deference to the relevant provisions of the Rules of this Court, the Counsel for the respective parties settled, filed and exchanged briefs of argument for their clients in support of their varied positions in the appeal.

The Appellant’s Counsel, Mr. O. S. Adedeko of the law firm of B. D. Asani & Associates, duly settled the Amended Appellant’s Brief of Argument dated 19th of February’, 2016, filed on the 22nd of

February, 2016 and deemed properly filed and served on the 8th of July, 2020. In it, the Appellant’s Counsel formulated the following unedited sole issue for determination: “Whether from the totality of evidence before the lower Court the case has been judicially and judiciously decided?”

On the other part, the Respondents’ Counsel Olufunmilola C. Abitoye Esq., of the law firm of Funmi Abitoye & Co. settled the Amended Respondents’ Brief of Argument dated the 12th of January, 2017, filed on the 6th of February, 2017 and deemed properly filed and served on the 8th of July, 2020.
The single issue also donated for the determination of the appeal in the Respondents’ brief reads unedited thus: “Whether in the circumstances of this case, the Court will vary, modify or reverse the findings of the trial Court in light of the evidence placed before it and the Court having properly evaluated same?”

At the hearing of this appeal by this Court on the 8th day of July, 2020, the Appellant’s Counsel, Mr. O. S. Adedeko adopted the Amended Appellant’s brief of argument, urged this Court to allow the appeal, set

aside the judgment of the trial Court and grant the claims filed by the Appellant against the Respondents at the trial Court.

Contrariwise, Mr. Wumi Fabuluje, the Respondents’ Counsel adopted the Amended Respondents’ brief of argument, urged the Court to dismiss the Appellant’s appeal and affirm the judgment of the trial Court.

I have examined the respective sole issue donated by the parties for determination, they are both identical in cognitive content. I shall therefore adopt the sole issue contained in the Amended Appellant’s Brief of Argument, as this is ample for the resolution of the grouse of the Appellant about the judgment of the trial Court being appealed by him.

SOLE ISSUE
“Whether from the totality of evidence before the lower Court, the case has been judicially and judiciously decided?”

THE SUMMARY OF THE SUBMISSIONS OF THE APPELLANT’S COUNSEL
Counsel submitted that, it is the duty of the parties before the Court to present material facts which the Court can act, and the Court is duty bound to consider all the evidence adduced by the parties before it in line with the extant law in order to do

justice to the case. He referred to the cases of: (1) Fagbenro v. Arobadi (2006) 7 NWLR (Pt. 978) p. 174; (2) Mogaji v. Odofin (1978) 4 SC p. 91 and (3) Akad Ind. Ltd. v. Olubode (2004) 4 NWLR (Pt. 862) p. 1. In the evaluation of evidence, the trial Courts are guided by the following principles, namely:
(a) Whether the evidence is admissible?
(b) Whether the evidence is relevant?
(c) Whether the evidence is credible?
(d) Whether the evidence is conclusive? and
(e) Whether the evidence is more probable than that given by the other party?

The reliefs of the Appellant at the trial Court were declaratory and for special damages and perpetual injunction, hence, he must succeed on the strength of his case. The case of: Iroagbara v. Ufomadu (2009) All FWLR (Pt. 481) p. 843 was referred to.

Failure of a trial Court to also evaluate the entire evidence placed before it could amount to miscarriage of justice and if such situation occurs, it is the duty of the appellate Court to intervene with the aim of doing substantial justice. In the instant case, the conclusion of the trial Judge to the effect that the evidence of PW3 contradicts that of the Appellant (PW1) is unfounded;

rather, the evidence of PW1 corroborated the evidence of PW3. Reference, in the evidence of PW1, PW2, PW3 and PW4, to one Baba Adegbite, Adegbite and Baba Samuel Adegbite Adegbonmire meant reference to one and the same person, as there was no evidence that the names belong to different persons. It is settled law that a Court of law must base its findings and decisions on facts placed before it.

The evidence of PW4 to the effect that it was Adegbite (her father) that instructed the Appellant to take PW2 to the land in issue and farm thereon further corroborates the evidence of PW2 and PW3. If the evidence of PW1, PW2, PW3 and PW4 were properly evaluated, the decision of the trial Court would have been in favour of the Appellant, hence, this Court has the power to re-evaluate the evidence adduced by the parties, especially that of the Appellant. In this wise, he referred to the cases of: (1) Adebayo v. Adusei (2004) 4 NWLR (Pt. 862) p. 44 and (2) Splinters (Nig.) Ltd. v. Oasis Finance Ltd. (2013) 18 NWLR (Pt. 1385) p. 188 at p. 223. PW3 gave evidence that he is the head of the Adegbonmire family and

further testified that PW2 is under obligation to sell whatever is on the land to the family member. This piece of evidence was corroborated by PW1, PW2 and PW4 before the trial Court. However, and on the other hand DW2 gave evidence that the head of the Adegbonmire family is one Akinlolu. It is necessary to point it out that the alleged Akinlolu did not testify before the trial Court, hence, the evidence of PW3 and PW4 is more probable and reliable and the Court is bound to act on same. He relied on this stance on the case of: Lambe v. Jolayemi (2002) 13 NWLR (Pt. 784) p. 343.

PW2 stated in his evidence that it was not the agreement between him and Fatugbo that when leaving the farmland he was to sell whatever was on the land to the children of Fatugbo, this piece of evidence was not controverted, thereby the learned trial Judge was wrong not to have taken into consideration this piece of evidence among others before dismissing the case of the Appellant. This therefore also occasioned miscarriage of justice PW2 was emphatic in his evidence and made it clear that the understanding he had with the Adegbonmire Orikiloija family was to sell the said land to any

family member and not outsiders when relocating therefrom to Akoko and further gave evidence that the 1st Defendant mother’s (Mama Fatugbo) did not tell him that the land in dispute belonged to her when it was allocated to him. From the totality of the evidence of PW1, PW2, PW3, DW1, DW2, DW3 it is quite clear that Fatugbo never farmed on the land in dispute and no portion of the Adegbonmire Orikiloija family land was allotted to her for farming purposes. This further strengthens the testimony of PW2 to the effect that Fatugbo merely helped him to get land to farm on from the Orikiloija family.

It was further canvassed for the Appellant that for a plaintiff to succeed in a suit for declaration of title he must satisfy the Court as to the precise nature of the title claimed and equally satisfy the Court with evidence establishing title of the nature claimed. The case of the Appellant is more probable than that of the Respondents and by extension the Appellant had been able to prove his right over the land in dispute which made him to be entitled to damages for the Responders act of trespass on the land and for the wanton destruction of his crops by

the Respondents as well as perpetual injunction restraining the Respondents, their servants, privies and agents from entering upon the said parcel of land in dispute for any purpose whatsoever. It is pertinent to state that the success of a claim for trespass is not necessarily dependent on the claim for title declaration as the issues to be determined on them are different. The failure of the trial Court therefore to consider the totality of the evidence placed before it by the parties before formulating its decision is against the rules and laws regulating adjudication in legal jurisprudence and this Court has the legally bounden duty to intervene, by doing justice in this matter. Counsel urged this Court to allow the appeal and set aside the unfavourable judgment of the trial Court.

THE SUMMARY OF THE SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The position of the law was reiterated by Counsel that an appellate Court will not generally interfere with the findings of fact by a trial Court but the appellate Court will only interfere if the trial Court failed to use, or palpably misuse its advantage of seeing the witnesses, or if the finding of the

trial Court is not supported by evidence or is erroneous in law and therefore perverse. On this legal position, he relied on the cases of: (1) Agbi v. Ogbeh (2005) 8 NWLR (Pt. 926) p. 40 at pgs. 123-124; (2) Woluchem v. Gudi (1981) 5 SC p. 291 and (3)Jinadu v. Esurombi Aro (2005) 14 NWLR (Pt. 944) p. 142 at p. 206. However, in the instant case, the trial Court properly used the advantage of seeing the witnesses while giving their evidence and evaluated their evidence, applied the appropriate principles of law and arrived at the right findings and conclusions which are not in any way perverse. It is the evidence of both parties that the land in dispute is part of the parcel of land which belongs to Adegbonmire Orikiloija family to which the Appellant and the Respondents belong and are entitled as members thereof. PW2 was allowed only to plant crops on the land on the understanding that he would sell the crops on the land to a member of the family whenever he decided to relocate. The findings of the trial Court are based on the evidence of parties before it. It was PW2’s evidence that the Appellant was one of the people he farmed with at Ijoka, Akure. He stated

that Madam Fatugbo, 2nd Respondent’s mother sent him to the Appellant for the purpose of getting him to allocate a piece of land out of the Orikiloija family’s large expanse of land to him for farming purposes.

DW1 gave evidence of Owadayo’s custom of taking farm produce to DW2’s mother Madam and she knew of the understanding that Owadayo was to sell the crops on the land in dispute to DW2 or her descendant so that the land and crops would ultimately revert to Madam Fatugbo’s lineage. DW1 claimed she was living with DW2’s mother at that time. DW2, in her pleading and evidence, indeed stated that because the Appellant had constantly harassed her about the land, the matter was submitted for and settled in DW2’s favour by the Deji of Akure’s arbitration.

In the exercise of her evaluation of evidence, the learned trial Judge who saw, heard and assessed witnesses rightly found DW1 as a wimess of truth and preferred her evidence. He relied on the case of: Nwosu v. Uche (2005) (Pt. 955) p. 574 at p. 590.
The trial Court also considered Exhibits A, B and C tendered by the Appellant as his root of title to the land in

dispute and rightly held that the documents do not confer automatic title on whoever produces them in Court. For the Appellant needed to prove his grantor’s title to the land for him to succeed in his claim based on the production of the documents, which he failed to do. The law is trite that, mere production of documents does not prove title to land especially a survey plan or a deed of assignment or an agreement of sale, such as Exhibits A, B and C between the Appellant and PW2 in the instant case. Rather, the root of title of the grantor needs to be established as valid. He referred in this wise to the case of: Malima v. Usman (2014) 16 NWLR (Pt. 1432) p. 160 at 193-194.

It is also apposite that, the parties agree that Owadayo PW2 is not a member of Orikiloija Adegbonmire family of Ijoka, Akure. The Appellant, 1st and 2nd Respondents and their witnesses except PW2 are members of the family who are entitled to the family land, part of which is the land in dispute. It is settled law that unshared and unpartitioned family land remains a Jointly owned property of all members of the family. Only family members have rights and interests in the family

property. Family property can only be validly alienated by head of family with the consent of accredited representatives or principal members of the family and members or principal members can not alienate any part of the family land without the consent of the head of the family. He relied on the cases of: (1) Solomon v. Mogaji (1982) 11 SC, p. 1 and (2) Adenle v. Olude (2002) 18 NWLR (Pt. 799) p. 435. In the instant case, PW2 is a total stranger and not even a member of Adegbonmire Orikiloija family. PW2 cannot convey and has not conveyed any title in the land to the Appellant. What is more, the law is also settled that where a party acknowledges that a larger property is jointly or commonly owned by a class of people, for instance, a family or community but claims exclusive ownership to any part thereof, that party owes the burden to prove how the exclusive ownership devolves on him. On this legal position, he referred to the case of: Ojoh v. Kamalu (2005) 18 NWLR (Pt. 958) p. 523 at p. 555. It is noteworthy that the Appellant and Respondents admitted that the entire Orikiloija family land has not been partitioned, thus the Appellant failed to show how

exclusive ownership of the land devolved on him, other than his production of Exhibits A, B and C made between him and DW2,a non-member of the family who possesses no interest or right in the land.

On the issues of the reliefs of damages and injunction sought by the Appellant, there was no iota of evidence in proof of the special damages pleaded, the reliefs sought are therefore deemed abandoned. Even the Appellant pleaded and gave evidence that PW2 planted the crops he was claiming special damages on, this was confirmed by PW2. Appellant did not pay for them and so cannot claim in their respect. The Appellant did not also establish exclusive possession of the land or better tittle than the Respondents, hence, damages in trespass must fail. See the case of: Echendu v. Tanko (2005) 11 NWLR (Pt. 936) p. 281 at p. 290.

RESOLUTION OF SOLE ISSUE
The law is well settled beyond any equivocation that, title to land can be established by any one of the following five methods, viz: (a) by traditional evidence; (b) by production of document of title, which are duly authenticated; (c) by acts of selling, leasing, renting out all or part of the land, or

farming on it, or on a portion of it; (d) by acts of long possession and enjoyment of the land; and (e) by proof of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. To mention just a few of the plethora of judicial authorities on this age-long legal principle, are the cases of: (1) Idundun v. Okumagba (1976) 9-10 SC p. 227; (2) Nkado v. Obiano (1997) 5 NWLR (Pt. 503) p. 31; (3) Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) p. 628; (4) Madu v. Madu (2008) 6 NWLR (Pt. 1083) p. 296; (5) Ayanwale v. Odusami (2011) 18 NWLR (Pt. 1278) p. 328 and (6) Atanda v. Iliasu (Supra). It is quite obvious in the instant case that the Appellant had employed the second method that is, production of document of title, in the bid to establish his claim of title to the land in dispute.

in the case of: Lawson & Anor. v. Ajibulu & Ors. (1997) 6 NWLR (Pt. 507) p. 14, had the following to say: “Production of documents of title alone is not sufficient to discharge the onus on a plaintiff to prove the title he claims; he must go further to trace the root of his title to one whose ownership of the land has been established.”
Also, this Court earlier on in the case of: Akinbami v. Oando Plc. & Ors. (2013) LPELR-21843 per Galinje, J.C.A. (as he then was, now J.S.C. Rtd.) held that: “The law is settled that a mere production of documents of title, such as certificate of occupancy and sales agreement does not confer title in respect of a parcel of land it purports to cover on the party that produced such documents unless he had the title before the certificate was issued to him. See Kyari v. Alkali (2001) FWLR (Pt. 60) 1481, (2001) 11 NWLR (Pt. 724) 412; Ogunleye v. Oni (1990) 2 NMLR (Pt. 135) 745, Section 34, Land Use Act.”
A purchase receipt therefore does not in itself convey title or legal estate in a landed property to the purchaser. It can thus merely be tendered as proof

of actual purchase or exchange of money between the vendor of the land and the purchaser. The position of the law thus is that, the root of title of the grantor must be proved to show that the grantor indeed had what he purported to grant to the purchaser. In the case of: Romaine v. Romaine (1992) 4 NWLR (Pt. 238) p. 650, the Supreme Court per Nnaemeka-Agu, J.S.C. (of blessed memory) held that: “One of the recognised ways of proving title to land is by production of a valid instrument of grant. See Idundun v. Okumagba (1976) 9-10 SC 227; Piaro v. Tenalo (1976) 12 S.C. 31, p. 37; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) p. 718. But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of questions, including: (i) whether the document is genuine and valid; (ii) whether it has been duly executed, stamped and registered; (iii) whether the grantor had the

authority and capacity to make the grant; (iv) whether the grantor had in fact what he purported to grant; and (v) whether it has the effect claimed by the holder of the instrument.”
See also the cases of: (1) Dabo v. Abdullahi (2005) LPELR-903 (SC); (2) Akinduro v. Alaya (2007) 15 NWLR (Pt. 1057) p. 313 at p. 329; (3) Agboola v UBA Plc. & Ors. (2011) LPELR-9353 (SC) and (4) Arije v. Arije (2011) 13 NWLR (Pt. 1264) p. 265.

admitted, but where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleadings of the Defendant that he is entitled. The necessity for this arises from the fact that the Court has a discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence. See Kodilinye v. Mbanefo Odu 2 WACA 336 at 337. In that case, i.e. Kodilinye v. Mbanefo Odu … Webber, C.I., Sierra Leone, delivering the judgment of the Court said: “The onus lies on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title.” See also Akinola & Ors. v. Oluwo & 2 Ors. (1962) WNLR 135.”
See further the cases of: (1) Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) p. 361; (2) Addah & Ors. v. Ubandawaki (2015) LPELR-24266 (SC); (3) Emenike v. P.D.P. (2012) LPELR-7802 (SC) at 27 D-G and (4) Akinbade & Anor. v. Babatunde & Ors. (2017) LPELR-43463 (SC).

From the above stated positions of the law, the legal burden on the Appellant herein to adduce cogent and credible evidence to prove the case set up in his pleadings is therefore very heavy, exceeding the general evidential burden of proof in civil cases on a person who asserts the affirmative under Sections 135 to 137 of the Evidence Act, 2011. Sections 135 (1), 136 and 137 provide as follows:
“135(1): Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
136: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at al/ were given on either side.
137(1): In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”
By the above provisions therefore, it is the requirement of the law that, he who asserts a fact must prove the fact. Hence, in all civil matters, generally,

proof rests squarely on the person who approaches the Court seeking that his legal right which he claims from another should be restored to him. Although the burden of proof is very heavy on the plaintiff in declaratory claims, including land matters and others, the standard of proof is still on the preponderance of the evidence adduced by the parties in the particular action.

Before I proceed with the application of the above reiterated positions of the law to the evidence adduced by the parties in this matter, especially in determining whether the Appellant was entitled to be favoured with the judgment of the trial Court, it is pertinent to equally restate the position of the law regarding the status of the land in dispute. The Appellant averred in respect of the land in dispute in paragraphs 4, 5 and 6 of his Statement of Claim as follows:
“4. The parcel of farmland along with a larger parcel of land originally belonged to the Adegbonmire Orikiloija family of Akure which some twenty-one years ago allotted it to one Albert Owadayo to farm thereon.
5. The said Albert Owadayo who hails from Ifira Akoko in Ondo State planted thereon Cocoa

trees, Kolanut trees, Walnuts, Oranges, Palm trees, Plantain and Pine-apples.
6. At the time the grant was made to the said Albert Owadayo mentioned in paragraph 5 above herein, there was a specific understanding between him and the members of the family that in the event of a future disposal by him of the farmland, he, (Albert Owadayo), should do so in favour of any member of the Orikiloija family who might wish to purchase the said farmland.”

The above averments are indicative of the fact that the land in dispute was originally a part of a large expanse of land belonging to Adegbonmire Orikiloija family. The Appellant proposed that the farmland was allotted by some members of the family in Akure, Ondo State to one Albert Owadayo who is not a member of that family but a native of Ifira-Akoka in Ondo State. The said family members entered into an undertaking with Albert Owadayo to not dispose of the land to anyone but a member of Adegbonmire Orikiloija family. Now, generally under Yoruba customary law, where a family owns a parcel of land communally, title or ownership of the land remains with the family until or unless there is partition of

same. On the right of an allottee of family land, the Apex Court way back over half a century ago plainly illustrated the customary law position in the case of: Etuwewe & Anor. v. Etuwewe & Anor. (1966) 1 AMR p. 176 per Lewis, J.S.C. (of blessed memory) as follows: “Sometimes there is an allocation of a piece of land to X for him to farm and earn his livelihood, and of another piece to Y. Neither X nor Y becomes the owner of the piece allotted to him, but both pieces remain family property; and this is to be distinguished from a partition or division of the estate which gives a successor a piece as his own property.”
Further in the case of: Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) p. 339, the Apex Court per Iguh, J.S.C. (as he then was, now J.S.C. Rtd.) on the acceptable mode of alienation of family property, succinctly stated that: “It is settled law that a sale of family land by a member of the family without the consent of the head and the principal members of the family is void ab initio. The head of a family must join in a conveyance or alienation of family land and the principal members must consent thereto otherwise such

conveyance will be void ab initio.”
See also the cases of: (1) Atunrase & Anor. v. Sunmola & Anor. (1985) LPELR-634 (SC); (2) Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) p. 275; (3) Alao & Anor. v. Ajani & Ors. (1989) 4 NWLR (Pt. 113) p. 1; (4) Agbomeji v. Bakare & Ors. (1998) LPELR-244 (SC); (5) Gaji & Ors. v. Paye (2003) 8 NWLR (Pt. 823) p. 583; (6) Yesufu v. Adama (2010) 5 NWLR (Pt. 1188) p. 522 and (7) Anyafulu & Ors. v. Meka & Ors. (2014) 7 NWLR (Pt. 1406) p. 396.

It is pertinent to state that the Appellant, 1st and 2nd Respondents are relatives, all of them being descendants of Adegbonmire Orikiloija. Indeed, the case of the Respondents is that, Albert Owadayo was brought to the land in dispute by the 2nd Respondent’s mother, late Mama Fatugbo, a direct and the first child of Adegbonmire Orikiloija. Although it was the Appellant’s assertion that Albert Owadayo was allotted the land in dispute by one late Pa Adegbite Adegbonmire, under cross-examination, the Appellant stated that he did not know if Albert Owadayo came to the land through late Mama Fatugbo. Incidentally, Albert Owadayo who gave

evidence as PW2 stated that, it was late Mama Fatugbo whom he had worked for previously that brought up the idea of his referral to the Adegbonmire Orikiloija family for the allocation of the land in dispute to him for farming purposes. PW2 stated that when he was farming on the land in dispute, he used to give Cocoa and Corn on a regular basis to Mama Fatugbo during the latter’s life time. He further stated that the late Mama Fatigbo also initially referred him to the Appellant, therefore when he wanted to give up the family land, the Appellant first led him to late Mama Fatugbo’s child, the 2nd Respondent. The Appellant confirmed this aspect of PW2’s assertion and that because the 2nd Respondent did not offer the right price, he, that is the Appellant, struck a deal with PW2 and purchased the land in dispute accordingly. The evidence of PW2, PW3 and PW4 is identical to and almost on all fours with the Appellant’s evidence in all material details.

The Appellant’s position is that, PW2 Albert Owadayo got to the land through Pa Adegbite Adegbonmire, also referred to interchangeably as Baba Adegbite and Baba Samuel Adegbite Adegbonmire. The

reference to Pa Adegbite Adegbonmire in those different names does not in my opinion amount to any material contradiction in the case of the Appellant, as wrongly held by the trial Court. Indeed, Albert Owadayo, the principal actor never mentioned ever getting to the land through Pa Adegbite Adegbonmire. More importantly, the actual position of the said Pa Adegbite Adegbonmire in the family of Adegbonmire Orikiloija is unknown, other than sharing the name “Adegbonmire” with the said original owner of the land, that is, Adegbonmire Orikiloija.

The very crucial common denominator in the cases of the Appellant and Respondents is that, the land in dispute is family land which has not been partitioned and PW2 was only let into possession to farm thereon. In his evidence-in-chief, PW2 Albert Owadayo pointedly stated as follows: “The plaintiff is one of the people I farm with at Ijoka, Ajure. Omotola Amos is daughter to MamaFatugbo. Deborah is a family member. I know Adegbonmire Ariki family. I know the plaintiff because Fatugbo sent me to the plaintiff to give me land to farm on. At the time Fatugbo was a member of the family. I was given the land. I knew

Fatugbo when I was working for her at Odopo, when the land was granted to me I farmed and planted on it. It was 1970 I started farming there. The boundaries men were Ebun Adegite, Baba Akinlolu, Baba Adenlawo, Baba Adenike. The area is Osa. I planted Cocoa, Oranges, plantain, pineapple. I am no longer on the land, I left it before I left I handed over to the plaintiff to keep it for me. I later sold to plaintiff. There was no price, I told him to give me plots of land he gave me 2 plots. There was an agreement we made it in 2002. Confirms exhibit B, also confirms Exhibit A.” (The underlining is supplied by me for emphasis)

It is quite evident from the evidence of the Appellant’s witnesses that, the land in dispute is family land. Albert Owadayo PW2 stated that the Appellant was one of the people he farmed with when he got to the land. Hence, it was quite convenient for the Appellant to oversee the farmland whenever Albert Owadayo was not on ground. He also stated that he shared boundary’ with PW4, Dorcas Ebun Akintola who is Pa Adegbite Adegbonmire’s daughter. The land was eventually sold to the Appellant. The purported sale is evidenced by

Exhibits A and B. The case mounted by the Respondents in defence of the action of the Appellant is that, the land in question is the portion of the larger Adegbonmire Orikiloija family land allotted to Mama Fatugbo the 2nd Respondent’s mother and a direct daughter, indeed the first-born child of the original owner, Adegbonmire Orikiloija. That it was Mama Fatugbo who gave the land in dispute to Albert Owadayo for farming with the understanding of a reversion of the land and sale of the crops thereon to any of Mama Fatugbo’s child. The trial Court believed the version of the Respondents. This is a matter of the credibility of witnesses. The law is trite that it is the primary duty of the trial Court, not that of the Court of Appeal, to evaluate evidence and indeed the assessment of credibility of a witness is the prerogative of the trial Court. For it is the trial Court who had the opportunity of hearing the witness tell his story by way of narration or in answer to questions put to him by counsel, and of observing his demeanour and the manner in which he gives his evidence. See the cases of: (1) William v. State (1975) 9-11 SC p. 87; (2) Garba v. State (1997)

3 NWLR (Pt. 492) p. 144; (3) Kwajaffa & Ors. v. B.O.N. Ltd. (2004) 13 NWLR (Pt. 889) p. 146 and (4) Sani v. State (2017) LPELR-43475 (SC).

There is no question that the trial Court did not evaluate some of the evidence of the parties properly and it equally misapplied the law to them in some respects. There are two crucial points that must be laid to rest at this juncture. Firstly, is the finding of the trial Court in its judgment at page 66 of the record of appeal, that the Respondents filed a Counter-Claim which they abandoned! I have scrutinised the record of appeal, there is no such counter-claim of the Respondents therein. Their Statement of Defence is contained in pages 9 to 10 of the said record of appeal, there is no endorsement of a Counter-Claim thereon. The learned trial Court also wrongly proposed that, the case of the Appellant entailed the determination of the question: whether the land in question was sold to the Appellant or the 2nd Respondent by Albert Owadayo?

No, there is no such question. Rather, it is crystal clear that the land was sold to the Appellant by Albert Owadayo as evidenced by Exhibits A and B. Although the Respondents

do not dispute the said purported sale, their grouse is that such sale did not accord with customary law and therefore illegal. The law is trite that where a trial Court made conflicting findings of facts, the appellate Court would be entitled to choose whichever of the findings that appears to be supportable on the evidence given at the trial as contained in the record of appeal. See the cases of: (1) Fatuade v. Onwoamanam (1990) 2 NWLR (Pt. 132) p. 322; (2) Union Bank of Nigeria Ltd. v. Ozigi (1994) 3 NWLR (Pt. 333) p. 385; (3) Uzoechi v. Onyenwe & Ors. (1999) LPELR- 3455 (SC) and (4) First Bank of Nigeria Plc. v. Mamman Nig. Ltd. (2001) FWLR (Pt. 31) p. 2890 at p. 2910.

I will again pause here before the determination of the poser: whether Exhibits A and B being touted by the Appellant are capable of conferring title to the land in dispute on the Appellant? There is no question, indeed it is the only rational conclusion that, the land in dispute was only given to Albert Owadayo for farming purposes and the land was to revert to the owner family but he could sell whatever farm produce he might have thereon. As adverted to hereinbefore by me, the

parties are in agreement that the entire large expanse of Adegbonmire Orikiloija family land has not been partitioned but portions of same including the land in dispute have been allotted to some individual family members for their use. The position of the law is that, a piece of family land allotted to a member of the family still remains family land. The law is equally trite that, sale of a piece of family land by a member of the family without the consent of the head and principal members of the family is void ab initio. See the cases of: (1) Etuwewe v. Etuwewe (Supra) and (2) Odukwe v Ogunbiyi (Supra). In the instant matter, Albeit Owadayo is not even a member of Adegbonmire Orikiloija family, but a mere tenant. 30th parties, including Albert Owadayo himself do not dispute this established fact. The established fact is independent of whoever brought or permitted Albert Owadayo to farm on the land, whether it was Pa Adegbite Adegbonmire as being claimed by the Appellant or Mama Fatugbo as being asserted by the Respondents. In the circumstances therefore: Did Albeit Owadayo, a mere tenant and not head or principal member of the family of Adegbonmire

Orikiloija, possess the legal capacity to alienate or sell the land in dispute to the Appellant or anyone at that? The unequivocal answer is resoundingly in the negative, as such alienation is unknown to Yoruba customary law. This leads to the consideration of the set of questions laid down by the Apex Court in the case of:Romaine v. Romaine (Supra) in the determination of the poser: Whether an instrument of grant automatically entitles its holder to a declaration that the property which such an instrument purports to grant is his own? At the risk of being repetitive, but for easy referencing, the questions are:
(i) Whether the document is genuine and valid;
(ii) Whether the document has been duly executed, stamped and registered;
(iii)Whether the grantor had the authority and capacity to make the grant;
(iv) Whether the grantor had in fact what he purported to grant; and
(v) Whether the document has the effect claimed by the holder of the document.
The questions raised for determination in this matter clearly are, questions (iii), (iv) and (v). I have earlier on above answered question (iii) that, Albert Owadayo had no

authority or capacity to sell the land in dispute, a family land, to the Appellant one of the members of the same family which indeed is the owner of the land. Albert Owadayo is neither the head nor a principal member, he is not even a member, of the Adegbonmire Orikiloija family. He was only permitted to farm on the land. Thus, it was ludicrous for him or anyone at that to have imagined that he could sell the portion of land to its original and legal owner, this is indeed comical.
The next question (iv) is: Whether Albert Owadayo had title in the land to grant to the Appellant? The answer is also in the negative, he had no legal interest to grant to the Appellant. Albert Owadayo as PW2 in his own words gave evidence under cross-examination that: “the family merely allowed me to farm on the land.” At best, what he had at the end of his farming sojourn on the land was a reversionary interest. The question of which of the members of the family of Adegbonmire Orikiloija has the allotment of the piece of land in dispute was not submitted for the determination of the trial Court and by extension, this Court. I therefore lack the jurisdiction to consider and

pronounce on the subject.
On the last question (v) therefore, it is my view and I hold that, the maxim: “nemo dat quod non habet” (no one can grant what he had not got), is amply applicable in this matter. It follows that Exhibits A and B are not worth more than the pieces of paper they are written upon. They granted nothing to the Appellant. Exhibits A and B are null, incurably bad, characterized by want of force, not efficacious and never existed in the eyes of the law. Just as parties to a null marriage are treated as though they were never married, parties to an instrument of grant which is a nullity are treated as though such an instrument never existed.

The Counsel for the Appellant had rightly observed that the trial Court was in error by not addressing his claims of trespass and for damages and injunction. The law is quite trite that, a trial Court has a mandatory and legally bounden duty to consider and make pronouncements upon all issues raised by the parties for its determination and not to confine itself to issues which it considers to dispense of the case, as had been erroneously done by the trial Court in the instant case.

Indeed, failure to decide all issues properly raised before a Court amounts to an abdication of its statutory duty by the Court and sometimes also a denial of fair hearing to the parties before it. What is more, the due consideration of all issues submitted by parties to a lower Court is to enable the Court exercising appellate jurisdiction to exercise its powers to properly determine the issues. See the cases of: (1) Ito & Ors. v. Ekpe & Ors. (2000) 3 NWLR (Pt. 650) p. 678; (2) Brawal Shipping (Nig.) Ltd. v. Onwadike Co. Ltd. (2000) 6 SOW p. 508 at p. 522; (3) Adah v. NYSC (2004) 13 NWLR (Pt. 891) p. 639 at pgs. 649 to 650 and (4) Samba Petroleum Ltd. v. U.B.A. Plc. (2010) 5-7 SC (Pt. 11) p. 22.
Albeit where a trial Court failed to consider or pronounce on an issue placed before it, it may not be necessary for this Court, as in the instant matter, to remit the issue to the trial Court for consideration and determination, this Court under its general powers under the provisions of Section 15 of the Court of Appeal Act, 2004 and Order 4 Rules 3 and 4 of the Court of Appeal Rules, 2016, will determine the issue not considered or pronounced upon by the

trial Court. Section 15 of the Court of Appeal Act (Supra) and Order 4 Rules 3 and 4 of the Court of Appeal Rules (Supra) respectively provide as follows:
“15. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be

re-heard by a Court of competent jurisdiction.
Order 4
3. The Court shall have power to draw inferences of fact and to give any judgment and make any order, which ought to have been given or made, and to make such further or other orders(s) as the case may require, including any order as to Costs.
4 The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or Respondent’s notice has been given in respect of any particular part of the decision of the Court below, or by any particular party to the proceedings in that Court, or that any ground for Mowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice; and the Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.”

I will now proceed to consider and determine the issues of trespass, damages and injunction claimed by the Appellant at the trial Court. The law is trite that, a plaintiff who claims damages for trespass as well as injunction regarding the land

in dispute, puts his title in issue. Such a plaintiff will succeed on proving that he has a better title to the land than the defendant, who although has not filed a counter-claim, is also claiming to be the owner of the land in dispute. Albeit, the tort of trespass is inextricably tied to possession, a person in possession of land even as a trespasser can still sue another person who thereafter comes upon the land. In other words, a person who has no title over a piece of land, but who is in exclusive possession, may successfully sue for trespass if any entry is made into the land without his consent see the case of: Eneh v. Ozor (2016) 16 NMR (Pt. 1533) p. 219.
However, in the instant case, the Appellant failed as behoves on him by law, to prove that he was in exclusive possession of the land in dispute. What is more, even though the Appellant had alleged that the Respondents entered the land and destroyed the crops thereon, which the Respondents denied, the Appellant failed to adduce evidence that the crops even belonged to him. Indeed, PW4 at page 38 of the record of appeal gave evidence that the land in dispute and the allegedly uprooted crops are the properties of PW2, Albert Owadayo.

In the case of Garan v. Olomu (2013) LPELR-20340, the Supreme Court per Muhammad, JSC (as he then was, now CJN) stated on this topic pointedly as follows: “Ordinarily, since appellant’s claim is for trespass to land, all he needs to establish to succeed is that he either has exclusive possession or the right to such possession of the land in dispute.”
What is more, in the instant matter, I am unable to determine from the printed record that the Appellant convinced the trial Court that he had exclusive possession of the land in dispute, quite asides the issue of title to the said land which I have found also not established by the Appellant.
The law is very settled that, in an action for special damages for trespass, there must be specific pleading of the special damages which must equally be proved by evidence clearly showing how the damages arise. For, facts averred in pleadings do not amount to evidence. Every item of special damage in the statement of claim must have clear evidence to support it. A person claiming special damages is therefore required to establish entitlement to that type of damages by credible

evidence of such a character as would suggest that he indeed is entitled to an award under that head. The Court cannot make its own individual assessment but must act strictly on specific evidence before it and which it accepts as establishing the amount to be awarded. See the cases of:
(1) Messrs Dumez (Nig.) Ltd. v. Ogboli (1972) 3 SC (Reprint) p.188; (2) Osho & Anor. v. Foreign Finance Corporation & Anor. (1991) LPELR-2801 (SC); (3) Daniel Holdings Ltd. v. U.B.A. Plc. (2005) 13 NWLR (Pt. 943) p. 533 and (4) Eneh v. Ozor & Anor. (2016) LPELR-40830 (SC).
In the instant case, as rightly proposed by the Respondents’ Counsel, the Appellant could rightly be deemed to have abandoned the part of his claim for special damages for trespass having failed to adduce any scintilla of evidence in substantiation of same before the trial Court.

In essence, the sole issue donated by the Appellant has failed and is hereby resolved against him and in favour of the Respondents.
Consequentially, this appeal is also failure-fated and accordingly dismissed.

The Respondents are entitled to the costs of this appeal which I assess in the sum of One

Hundred and Fifty Thousand Naira (N150,000.00) and I award same in their favour, to be paid by the Appellant.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading the lead Judgment delivered by my learned brother, OYEBISI FOLAYEMI OMOLEYE, J.C.A. who meticulously dealt with the sole issue formulated by the Appellant in his Brief of Argument adopted by his learned counsel on 8th day of July, 2020.

My learned brother considered and resolve the relevant legal question adequately; I adopt the resolution of the issue on the lead Judgment as mine.

I too dismissed the Appeal as constituted. I abide by the consequential Order including costs in the lead judgment.

PATRICIA AJUMA MAHMOUD, J.C.A.: The draft of the lead judgment of my learned brother, OYEBISI FOLAYEMI OMOLEYE, J.C.A. was made available to me. I appreciate the effective and precise resolution of all the salient issues submitted by the parties in this appeal. I too agree that this appeal lacks merit and ought to be dismissed.

I dismiss it. I also abide by all the consequential Orders made in the judgment including those as to costs.

Appeal is dismissed.

Appearances:

Mr. O.S. Adedeko, with him, Mr. Ibrahim Ahmad For Appellant(s)

Mrs. Yetunde Ademigoke For Respondent(s)