NAN v. UGIAGBE (2021)

NAN v. UGIAGBE

(2021)LCN/15195(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, May 05, 2021

CA/B/104/2014

Before Our Lordships:

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

NEWS AGENCY OF NIGERIA APPELANT(S)

And

CHIEF VICTOR UGIAGBE RESPONDENT(S)

RATIO

WHETHER AN ISSUE FOR DETERMINATION OF APPEAL MUST ARISE AND BE RAISED FROM THE GROUND(S) OF APPEAL

The law is trite that an issue for determination of appeal must arise and be raised from the ground(s) of appeal and any issue that did not arise from ground of appeal is incompetent. The Respondent’s issue one having not been distilled from any of the grounds of appeal is incompetent. See ORLU VS. GOGO-ABITE (2010) NWLR (PT. 1196) 307 at 321 and GOMNA VS. MORRIS (NIG.) LTD (2019 LPELR-46900 (CA), where Jauro JCA (as he then was, now JSC) speaking for this Court stated the long established principle of law at pages 12 to 13, paragraphs E-B thus: On the objection that the Appellant did not specifically relate to which of the two grounds of the appeal his sole issue was distilled from, the settled fundamental principle of law is that any issue raised or formulated in a brief of argument for either the Appellant or Respondent must be distilled from, or predicated upon a competent ground of appeal challenging the decision of the lower Court appealed against. Thus, neither a party to an appeal, nor even the Court itself, is allowed to raise any issue which is not related to, or distilled from the ground of appeal. See CSS Bookshop Ltd vs RTMERS (2006) 11 NWLR (part 902) 530, Oniah vs Onyia (1989) 1 NWLR (part 99) 514, Nwosu vs Udeaja (1990) 1 NWLR (part 125) 188; Mark vs Eke (2004) 8 NWLR (part 1282) 560 at 597 D – E.” PER BALKISU BELLO ALIYU, J.C.A.

CONDITION THAT MUST BE SATISFIED BY A PLAINTIFF IN A CLAIM IN TRESPASS

The Apex Court in the case of UDE & ORS VS. CHIMBO & ORS (1998) LPELR-3288 (SC) or (1998) 12 NWLR (PT. 577) 169. per IGUH, J.S.C. speaking for the Apex Court stated the position of the law on claims of trespass to land thus: Generally speaking, a claim in trespass is rooted in exclusive possession and all a plaintiff needs prove is that he has exclusive possession of the land in dispute, once a defendant claims ownership of the same land, title is put in issue and the plaintiff, to succeed, must show a better title than that of the defendant to the land in dispute. See Amakor v. Obiefuna (1974) 1 NMLR 331 at 336. Consequently, a trespasser in possession is only entitled to sue in trespass, persons who are not the true owners of the land in dispute or have no better title thereto than himself. Such a trespasser in possession cannot therefore succeed in an action in trespass where he sues one who has a better title to the land in dispute than himself. See also AMAYO VS. ERINMWINGBOVO (2006) LPELR-458 (SC) and OMOTAYO VS. CO-OPERATIVE SUPPLY ASSOCIATION (2010) 16 NWLR (PT. 1218) 1, among several others on this established principle of law. PER BALKISU BELLO ALIYU, J.C.A.

WHETHER A CERTIFICATE OF OCCUPANCY CAN MERELY BE RELIED UPON IN PROOF OF TITLE TO A LAND IN ISSUE; WHETHER THE ISSUANCE OF A CERTIFICATE OF OCCUPANCY WILL AUTOMATICALLY EXTINGUISH AN EXISTING VALID TITLE TO LAND

The fundamental principle of law settled by a long line of decisions of this Court and the Apex Court is that a certificate of occupancy merely raises a rebuttable presumption in favour of the holder of title to the land in issue. Such a holder who relies mainly on the Certificate of occupancy as his title to the land still needed to establish his title on the certificate of occupancy where he is challenged such as in this case. Again, it is a fundamental principle of land law that where there exists a title to the land prior to the issuance of a certificate of occupancy, such as in this case, that prior title cannot be extinguished by the issuance of the certificate of occupancy to another party unless that prior title has been validly extinguished in accordance with the Land Use Act. See KOLO VS. LAWAN (2018) LPELR-44378 (SC), NNADIKE & ANOR VS. NWACHUKWU (2019) LPELR-48131 (SC); MADU V. MADU (supra); IBRAHIM VS. MOHAMMED (supra). PER BALKISU BELLO ALIYU, J.C.A.

EFFECT OF AN EVIDENCE OF A WITNESS EXTRACTED UNDER CROSS-EXAMINATION

It is trite law that evidence of a witness extracted under cross-examination is as good if not better than evidence in chief. If the evidence is relevant, it is admissible and the Court is free to rely on it in deciding the issue in controversy. See MTN VS. CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR-47042 (SC), STATE VS. YAHAYA (2019) LPELR-47611 (SC). PER BALKISU BELLO ALIYU, J.C.A.

POSITION OF THE LAW REGARDING THE NATURE OF A MISTAKE OR SLIP IN A JUDGMENT THAT WILL RESULT IN THE SETTING ASIDE OF THE JUDGMENT

…ECOBANK VS. AROGUNDADE & ANOR (2019) LPELR-47314 (CA), where this Court per Abubakar, JCA held at pages 56 to 57 that: The law is trite that a mistake or slip in a Judgment will not result in the setting aside of the Judgment, unless the said mistake or slip is material and/or substantial and is shown to have affected the decision reached in the Judgment… In Amasike v Registrar General CAC (2010) 7 MJSC 86, this Court held emphatically that it is not every error or mistake that results in a reversal of a judgment and an appellate Court must be wary of this position of the law. An error or slip that may have the result of the appeal being allowed must be fatal in the sense that it must occasion a substantial miscarriage of justice. It has to be noted that it is not every slip committed by a judge in his judgment that will amount to a misdirection which will result in the appeal being allowed, the misdirection to be fatal, must have occasioned a substantial miscarriage of justice. The mistake must have affected or influenced the decision appealed against before it can result in the reversal of the decision. PER BALKISU BELLO ALIYU, J.C.A.

POSITION OF THE LAW REGARDING AWARD OF GENERAL DAMAGES

General damages are presumed by law to follow from the type of wrong complained of. See Black’s Law Dictionary, Ninth Edition page 446. As alluded to earlier, this case is a claim rooted in tort of trespass, which is actionable per se. General damages will ordinarily arise and can be awarded where there was proof of tort of trespass or in favour of a party who proves a better title to the disputed land. However, it is within the discretion of the trial Court to determine the quantum of damages to be awarded taking into consideration the circumstances of the case. In so doing, the trial Court is required to demonstrate or give reasons on how it arrived to what amount to reasonable damages it awarded. See AJOSE-ADEOGUN & ANOR. VS. OLOJEDE & ORS (2018) LPELR-43683, MOUGBOH VS. TEMLONG (2019) LPELR-50346 (CA). PER BALKISU BELLO ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Edo State High Court sitting in Benin City (trial Court) delivered on the 30th October 2013 in respect of Suit No: B/315/2004 wherein the claim of the Appellant was dismissed and the counter claim of the Respondent was granted.

The Appellant, being the Claimant commenced the suit vide a writ of summons (page 1 to 2 of the record) and an amended statement of claim (pages 22 to 24 of the record), seeking the following reliefs against the Respondent being the Defendant:
1. A declaration that by entering on the Plaintiff’s land without the Plaintiff’s permission or consent and erecting a structure thereon, the Defendant committed trespass and is liable in damages.
2. The sum of N10, 000, 000.00 (ten million Naira) as general damages for his continuing trespass on the Plaintiff’s land situate at Ugbowo in Benin City in the Oredo Local Government Area of Edo State of approximately 8669.527 square meters more particularly delineated in Survey plan No. BE 497 attached to the statutory certificate of occupancy issued

by the then Military Governor of the then Bendel State of Nigeria on the 24th day of August 1987, registered as No. 47 at page 47 in volume B114 of the land registry office at Benin City which the Plaintiff is the holder.
3. An order of perpetual injunction restraining the Defendant, his servants and agents, legal personal representatives or assigns from entering or building on the said land and from committing any further or continuing acts of trespass on or relating to the said parcel of land.

The Appellant’s case before the trial Court was that being an agency of the Federal Government of Nigeria, it applied to the appropriate authority, the Bendel State Government (now Edo State) for allocation of land and its application was granted vide a certificate of occupancy (exhibit 1A), granting the Appellant the right of occupancy to the disputed land.

The Respondent denied the Appellant’s claims in terms of his amended statement of defence and counter claim (copied in pages 13 to 16 of the record of appeal), wherein he asserted that the disputed land belonged to his late father who acquired it in accordance with the Benin mode of acquisition of

land prior to the promulgation of the Land Use Act and that his father passed the land to him as a gift inter vivos after payment of a token price for it in the presence of witnesses. He relied on the Oba of Benin’s approval of his father’s application made to the Oba (admitted at the trial as exhibit 4) as his evidence of title to the land in dispute. He therefore counter claimed for the following reliefs against the Appellant:
a) A declaration that prior to the Land Use Act 1978 the defendant was the owner in possession of the parcel of land measuring 200ft X 400ft lying and situate at Ward 11/k Isiohor village and verged in pink in litigation survey plan No. KS/ED/L/016/2005 referred to in paragraph 35 of the statement of defence and therefore the person entitled to be granted a statutory right of occupancy of the land.
b) N1,000,000.00 (One million Naira) as general damages against the Plaintiff for its unlawful claim and trespass on the said land.
c) Perpetual injunction restraining the plaintiff, his servants, agents and privies from further trespass on the said land.
d) An order of this Honourable Court setting the certificate

of occupancy No. BDSR dated 24th August 1987 of the Lands Registered as No. 47 at page 47 in volume B114 of the Lands Registry in the office at Benin City.

During the trial, the Appellant called witnesses and tendered the certificate of occupancy as its evidence of title to the land. The Respondent also testified and called witnesses in defence and in support of his counter claim. At the end of the trial, the learned trial Judge found and held that the Respondent proved better title to the disputed land and it dismissed the Appellant’s claim and granted the counter claim of the Respondent. It set aside the certificate of occupancy issued to the Appellant and awarded the sum of N600, 000 against the Appellant for trespass in favour of the Respondent.

The Appellant was aggrieved with the judgment of the trial Court and filed this appeal vide its notice of appeal dated and filed on the 9th January 2014, relying on seven (7) grounds of appeal to pray this Court to set aside the judgment of the trial Court and in its stead grant the Appellants claims already reproduced supra. See pages 137-142 of the record of appeal.

The Appellant’s brief of

argument was settled by CHIEF DURO ADEYELE SAN, and filed on the 9th January 2019 but deemed properly filed and served on the 6th May 2019. The learned senior counsel raised the following four issues for the determination of this appeal:
1. Whether the Appellant as opposed to the Respondent proved possession and better title to the land in dispute and entitled to succeed. (Grounds 1, 2, 4 and 5).
2. Whether the Learned Trial Judge was in error in nullifying the Appellant’s statutory certificate of occupancy (exhibit 1). (Ground 6).
3. Whether the learned trial Judge, by his comments and observations on the nature of the Oba of Benin’s approval of land allocation which observation materially influenced his decision in favour of the Respondent, descended into the arena thereby occasioning a grave miscarriage of justice. (Ground 3)
4. Assuming without conceding that the respondent proved title and trespass, whether the award of N600, 000.00 was not excessive. (Ground 7)

In opposing the appeal, the Respondent filed his Respondent’s brief that was settled by SAM OSUNDE ESQ. on the 28th June 2019, consequentially deemed properly filed

on the 18th February 2021. The learned counsel distilled two issues for the determination of this appeal, thus:
1. Whether or not the Appellant’s grounds of appeal, issues for determination and argument in respect of same are not defective.
2. Whether having regards to the reliefs claimed in the claim and the counter claim, the pleadings and evidence on the record, the trial Judge was right in dismissing the Appellant’s claim and granting the Respondent’s counter claim (Grounds 1-7).

The Appellant’s Reply to the Respondent’s brief was filed on the 15th January 2020 and deemed properly filed on the 18th February 2021, the date the appeal was called for hearing. Learned Counsel on both sides adopted their brief of argument. The Appellant urged the Court to allow the appeal while the Respondent prayed that the appeal be dismissed and the judgment of the trial Court affirmed.

It is observed that the Respondent raised an objection to all the grounds of appeal via his issue one by asserting that all the grounds of this appeal and the Appellant’s issues distilled from them are defective. And in raising his issue one, the Respondent did not

relate it to any of the grounds of appeal, while his issue 2 was distilled from all the 7 grounds of appeal, confirming that indeed the issue is an objection to the appeal. This is a strange mode of raising an objection to the competence of an appeal through an issue for determination. The law is trite that an issue for determination of appeal must arise and be raised from the ground(s) of appeal and any issue that did not arise from ground of appeal is incompetent. The Respondent’s issue one having not been distilled from any of the grounds of appeal is incompetent. See ORLU VS. GOGO-ABITE (2010) NWLR (PT. 1196) 307 at 321 and GOMNA VS. MORRIS (NIG.) LTD (2019 LPELR-46900 (CA), where Jauro JCA (as he then was, now JSC) speaking for this Court stated the long established principle of law at pages 12 to 13, paragraphs E-B thus:
On the objection that the Appellant did not specifically relate to which of the two grounds of the appeal his sole issue was distilled from, the settled fundamental principle of law is that any issue raised or formulated in a brief of argument for either the Appellant or Respondent must be distilled from, or predicated upon a

competent ground of appeal challenging the decision of the lower Court appealed against. Thus, neither a party to an appeal, nor even the Court itself, is allowed to raise any issue which is not related to, or distilled from the ground of appeal. See CSS Bookshop Ltd vs RTMERS (2006) 11 NWLR (part 902) 530, Oniah vs Onyia (1989) 1 NWLR (part 99) 514, Nwosu vs Udeaja (1990) 1 NWLR (part 125) 188; Mark vs Eke (2004) 8 NWLR (part 1282) 560 at 597 D – E.”

However, in the event that I am wrong and I am sure am not, but being an intermediate Court that I am, and in view of the fact that a challenge to grounds of appeal is a challenge to the competence of the appeal itself and by extension, a challenge to the jurisdiction of this Court to determine it, and the fact that issues for determination of an appeal cannot validly be raised and/or determined from incompetent grounds of appeal, and it is a fundamental principle of law that issue of jurisdiction can be raised anytime, anywhere and anyhow, I will proceed to determine the Respondent’s issue one before proceeding if necessary. Moreover, the Appellant responded to the issue in its Appellant’s Reply Brief.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

RESPONDENT’S ISSUE ONE
The Respondent canvassed argument on his issue one in pages 4 to 8 of the Respondent’s brief of argument. Learned counsel submitted that it is an elementary principle of law that issues not canvassed in the lower Court cannot be raised on appeal and that such issues formulated and argued (on appeal) must relate to the grounds of appeal which is the reason why it must be specifically stated to which ground does an issue relate. In this appeal, he argued that the issues and argument of the Appellant did not support its grounds of appeal; rather, it is an attempt to re-open its case, which could not establish at the trial. He submitted that this Court is not a forum for a party to change his case and re-open same. He specifically referred us to ground 1 with its three particulars, and grounds 2, 4, 5 and 6 without their particulars from which the Appellant distilled four issues. On the Appellant’s issue one covering grounds 1, 2, 4 and 5 of appeal, he submitted that particulars 1, 2 and 3 are abandoned by the Appellant because no argument was canvassed on them. Also that the Appellant’s attempt to link its certificate of occupancy

to the Bendel Development and Property Authority was never an issue before the trial Court as the root of title of the Appellant and therefore it cannot be raised on appeal. He submitted that the case of the Appellant at the trial Court was that it had a certificate of occupancy issued by the Governor, as such it did need to prove root of title.

He further submitted that ground two of appeal was also not canvassed by the Appellant and it should be deemed abandoned. That ground 4 of appeal and its particulars complaining about Oba’s approval being inadmissible evidence was not mentioned in the argument canvassed in support of issue one. So also were grounds 5 and 6 of appeal not raised before the trial Court regarding the competence of the counter claim. Finally, learned counsel submitted that the importance of formulation of issues for determination of appeal transcends a mere matter of form. The issues for determination are the questions that the parties submit to Court for its decision, and the final determination of an appeal depends on how the material questions in the appeal are answered. The issues themselves must arise from the grounds of appeal

and to decide an appeal on questions that neither arise from the grounds of appeal nor from the issues arising therefrom is contrary to the appellate justice system. He therefore urged the Court to hold that the grounds of this appeal are defective and issues raised therefrom go to no issue, and to resolve this issue against the Appellant. He relied on a host of cases including MR. IBIBLAMA ODOM & ORS. VS. PDP & ORS. (2015) FWLR (PT. 773) 1962; CONTRACT RESOURCES NIG. LTD VS. STB LTD (2014) ALL FWLR (PT. 713) 1850.

The Appellant’s response to the Respondent’s issue one is contained in his Appellant’s reply brief filed on the 15th January 2020 deemed properly filed on the 18th February 2021. The learned senior counsel argued therein that contrary to the submissions of the Respondent, the grounds of this appeal are competent having arisen from judgment of the trial Court appealed against as shown in pages 137 to 141 of the record of appeal. He pointed out that the Respondent only reproduced the grounds of appeal with their particulars which he queried without pointing out the specific paragraphs in the Appellant’s brief that contains argument

unrelated to the said grounds of appeal. He submitted that the Respondent cannot make assertion in limbo, as such his assertion against issue one holds no water and should be dismissed.

Learned senior counsel further submitted that the purpose of this appeal is to find out whether on the state of the pleadings, evidence and the applicable laws, the trial Court had come to the right decision in relation to the reliefs sought in the suit. He argued that this appeal is not an attempt to raise new action but a continuation of same dispute in the original action and therefore the Appellant’s reference to Bendel State Development and Property Authority is not new to this case.

He urged the Court to note that the Respondent in his objection/issue one omitted ground 3 of appeal because he knows that this ground of appeal is material to the determination of this appeal and unfavourable to him. He relied on the cases of SOGUNRO VS. YEKU (2017) 9 NWLR (PT. 1570) 290: ODEDO VS. OGUEBEGO (2015) 13 NWLR (PT. 1476) 229 and others for support and in urging the Court to discountenance the submissions of the Respondent.

RESOLUTION
As I alluded earlier in the beginning of this judgment, the Appellant relied on seven grounds of appeal in its notice of appeal. The complaint of the Respondent under this issue is against five grounds, that is, grounds 1, 2, 4, 5 and 6 of appeal. There is no complaint against grounds 3 from which the Appellant formulated issue 3 and ground 7 from which Appellant’s issue 4 was formulated for determination.

It again needs to be stated that the complaint against the five grounds of appeal are on two legs/grounds, namely; that the issues raised in those grounds were never raised before the trial Court or pronounced upon in the judgment of the trial Court appealed against and secondly, the issues formulated by the Appellant are at variance with the grounds of appeal as such they go to no issue. The 5 grounds of appeal complained against as contained in the Appellant’s notice of appeal (pages 137 to 142 of the record of appeal) are reproduced below:
GROUND 1
The learned trial Judge erred in law when he held: “None of the witness (sic) of the Claimant provided evidence of how the military Governor of the then Bendel State came by this land in dispute.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

PARTICULARS OF ERRORS
1. It is an established fact that the Land Use Act of 1978 vests the ownership of land in an urban area in the Governor who holds same in trust for the people and does not need to establish any root of title.
2. There was no valid title to the land in dispute before same was allocated to the Claimant (now Appellant) as the Defendant/Respondent’s purported root of title was not authenticated by the appropriate authority.
3. The purported Oba Approval (Exhibit 4) being not authenticated only qualified as a worthless piece of paper, and the trial Judge ought not to have relied on same.
GROUND 2
The learned trial Judge misdirected himself when he held that “there is no evidence either that this land when it was acquired, any compensation was paid to the Oba or any one else as customary owners” as this was not the case presented before the Court and same occasioned a miscarriage of justice.
GROUND 4
The Court below erred in law when in predicating its declaration of title to the land in dispute in favour of the Defendant/Counter claimant on a purported receipt (Exhibit 8) and purported Oba of Benin’s

approval (exhibit 4) which documents are not admissible in proof of legal title and this occasioned miscarriage of justice.
GROUND 5
The Court below erred in law in declaring the title in dispute in favour of the Defendant/Claimant and awarded damages for trespass when the Claimant demonstrated through credible evidence that it had better title and was in possession of the land at all material time and this declaration and order occasioned a grave miscarriage of justice.

It is from the grounds 1, 2, 4 and 5 supra that the Appellant distilled its issue one. It is clear from grounds 1 and 2 of appeal that they arose from the decision of the trial Court and the Appellant quoted the exact excerpt from the judgment that it is complaining about. Ground 4 and 5 complained against exhibits 8 and 4 admitted during the trial, which the trial Court relied on to arrive at its decision dismissing the Appellant’s claim. Clearly, these grounds of appeal arose from the decision of the lower Court contrary to the contention of the Respondent. There is no merit in the argument of the Respondent that these grounds of appeal do not relate to issues raised at the

trial and it is hereby discountenanced.

With regards to the contention of the Respondent that the Appellant’s issue one distilled from grounds 1, 2, 4, and 5 did not relate to or is at variant with the four grounds of appeal, I will again reproduce issue one, thus; “Whether the Appellant as opposed to the Respondent proved possession and better title to the land in dispute and entitled to succeed.” This issue captures the complaint of the Appellant in the four grounds of appeal and its resolution will involve the examination of the evidence of title led by each of the parties in order to determine the correctness or otherwise of the decision arrived at by the learned trial Judge. The Respondent’s argument on this leg of its issue one is untenable and it is discountenanced as well. I proceed to examine ground 6 from which Appellant distilled its issue 2 for determination.

GROUND 6
The Court below erred in law in setting aside the Claimant’s certificate of occupancy (exhibit 1 and 1A) at the instance of the Defendant/Counter Claimant when the grantor of the title document, Edo State Government/Governor was not joined by the counter claimant as a

party to defend its/his right to grant same and this occasioned a grave miscarriage of justice.

The complaint of the Appellant against ground 6 and issue is against the order of the trial Court setting aside the certificate of occupancy issued to the Appellant. This order of the trial Court is contained in the judgment in page 136 of the record, where it declared that: “the certificate of occupancy number BDSR 7147 dated 24th August 1987 and registered as No. 47 at page 47 in the Lands Registry in the office at Benin City, Exhibit ‘1’ and ‘IA’ in this proceeding is hereby set aside.” The Appellant’s issue 2 formulated from ground 6 of appeal is “whether the learned trial Judge was in error in nullifying the Appellant’s statutory certificate of occupancy (exhibit 1).” The issue directly relates to the ground of appeal against the specific finding/order of the trial Court in the judgment appealed against. Again, I have no difficulty in finding no iota of merit in the argument of the Respondent in respect of this ground and same dismissed.

As noted earlier, there is no complaint against ground 3 and 7 from which Appellant’s issues 3 and 4 were

distilled. It therefore means that even if the Respondent’s objection to grounds 1, 2, 4, 5 and 6 has merit, which it certainly has none, the appeal will still be decided on the two issues formulated from grounds 3 and 4 of appeal. Upon my finding supra, the argument of the Respondent under his issue one lacks merit and the issue is resolved in favour of the Appellant.

I now proceed to determine the appeal on its merits and in so doing I adopt the Appellant’s four issues for determination.
However, issues 1 and 2 will first be resolved together before issues 3 and 4.

ISSUES 1 & 2
APPELLANT’S SUBMISSIONS:
The learned senior counsel for the Appellant in arguing issue 1 referred us to the Appellant’s claims contained in page 23 of the supplementary record of appeal, which showed that the Appellant relied on the certificate of occupancy granted to it by the Bendel State Government in respect of the disputed land. He posited that the said land is situate within an area declared as Benin City Declared Planning Area Housing Estate Ugbowo, particularly the 24th street thereof. He drew the Court’s attention to the evidence of PW1 in

page 57 of the record given in support of paragraph 3 of the Appellant’s amended statement of claim, which he argued was uncontroverted by the Respondent and therefore deemed admitted, vide the case of IVIENAGBO VS. BAZUAYE (1999) 9 NWLR (PT. 620) 552. He also submitted, on the authority of the case of A.G. LAGOS STATE VS. A. G. FEDERATION (2003) 12 NWLR (PT. 833) 1 at 117, that having identified the land in dispute as being situate at the Edo Property and Development Authority (formally BDPA) Estate raises a presumption that the plots of land therein have been acquired by the then Bendel State Government. This presumption, according to the learned senior counsel, is supported by Section 167 of the Evidence Act that vests the Court the power to presume such acquisition. He however conceded that such presumption is rebuttable, placing the onus on the Respondent to disprove, and that the Respondent failed to rebut the presumption.

With regards to the ownership of the disputed land, learned senior counsel referred us to the evidence from the Edo State Ministry of Lands that supported its case to the effect that there was no adverse claim on the land as at

the time the certificate of occupancy (exhibit ‘1’) was issued to the Appellant. He further relied on the provisions of Sections 1, 5 and 9 of the Land Use Act (LUA) and the case of OLAGUNJU VS. ADESOYE (2009) 9 NWLR (PT. 1146) 225 to submit that exhibits ‘1’ was duly issued by lawful authority, i.e. the Governor of Bendel State to whom ownership of the disputed land was vested and who had the responsibility to allocate it. Learned counsel contended that even assuming the Respondent had any right to the disputed land, such right has been extinguished by the issuance of exhibit ‘1’. He further referred us to the case of MADU VS. MADU (2008) 6 NWLR (PT. 1083) 296 and urged us to hold that the Appellant has successfully traced its title to the disputed land to the Governor of Edo State and the onus laid heavily on the Respondent to show that he had prior legal title to the disputed land, but that any equitable title will not do. In this regard, the holding of the trial Court relying on Section 34 of the Land Use Act that the Respondent is the person entitled to be granted statutory right of occupancy was in error because the Respondent did not meet the

requirement of the Land Use Act to have an equitable interest vested in the land.

On the nullification of the certificate of occupancy in line with the counter claim of the Respondent, which certificate the Appellant relied upon as its title; learned senior counsel submitted that the entire counter claim upon which this nullification was made was defective because (1) the Respondent did not seek leave to join his counter claim to the facts in his statement of defence; (2) the counter claim in page 16 of the record of appeal contains only reliefs with “no independent and specific pleadings therein.” He relied on the case of U.B.N. PLC VS. JASE MOTORS (NIG.) LTD (1997) 7 NWLR CPT. 513) 387 to the effect that a counter claim is a cross action and should be treated as an independent action rather than merely a defence to the main suit. Learned Counsel urged us to hold that the purported counter claim was merely “counter reliefs” and not based on any pleadings, That even though the Respondent stated that he would be relying on relevant facts contained in his statement of defence, the Appellant insisted that the Respondent still has to seek and obtain leave

of Court before he could rely on the pleadings in his statement of claim as was held in the case of SUSAINAH (TRAWLING VESSEL) VS. ABOGUN (2007) 1 NWLR (PT. 1061) 456 (3) there are no alleged facts in support of or that justifies the grant of Respondent’s relief 37 (d) to nullify the certificate of occupancy and (4) that the Governor of Edo State was not joined as a party by the Respondent, whose joinder was necessary for the determination of whether or not the disputed land was acquired and compensation paid. That the lower Court ought to have ordered the joinder of the Edo State Governor suo moto, pursuant to Order 13 Rule 16 of its Rules of Civil procedure and that failure to do so constitutes failure to follow due process of law which occasioned miscarriage of justice and adversely affected the Appellant. The Appellant urged us to resolve issues one and two in its favour.

RESPONDENT’S SUBMISSIONS
The response of the Respondent to all the argument of the Appellant on all the issues raised is contained under the Respondent’s issue two. The learned Respondent’s counsel drew our attention to the fact that the Appellant was the claimant/plaintiff who

sought declaration of the trial Court that the Respondent/Defendant trespassed unto the land in dispute upon which it sought injunction and general damages. The Respondent denied the claims of the Appellant and counter claimed as the rightful owner of the disputed land. At the end of the trial, the trial Judge made a finding of fact based upon his assessment of the demeanor of the witnesses called by the parties. Upon these facts, learned counsel submitted that such finding of fact of the trial Judge cannot be lightly disturbed unless found to be perverse. He referred us to the finding of the learned trial Judge in page 134 of the record of appeal where he stated that he believed the witnesses of the Respondent who appeared to him to be truthful, and submitted that the accepted principle of law is that in land cases, the plaintiff claiming declaration of title must succeed on the strength of his case and he has the onus to satisfy the Court that he is entitled on the evidence he called to the declaration of title to the disputed land.

He placed reliance on the case of AJIBOYE VS. ISHOLA (2006) 13 NWLR (PT. 998) 628 and IDUNDUN VS. OKUMAGBA (1976) 9-10 SC 227

where the five methods of proving title to land were stated by the Apex Court and submitted that for the Appellant to succeed being holder of certificate of occupancy, it needed to show the grantor’s valid title to the disputed land over which it secured the certificate of occupancy. He referred to the testimonies of the Appellant’s CW1 and CW2 to submit that none of these witnesses provided evidence of how the military governor of the then Bendel State came by the disputed land.

In contrast to the case of the Appellant, the Respondent referred us to his pleadings and evidence stating how his father came by the disputed land through Bini native law and custom and Oba Akenzua II’s approval of allocation of it to him since 1967. He pointed out that it is upon putting the cases of the parties side by side that the learned trial Judge came to the conclusion that the Respondent made out a better case than the Appellant as per his counter claim.

He further pointed out that the Appellant’s case before the trial Court and in this appeal is that the Land Use Act 1978 vests all lands in urban area in the Governor who holds same in trust for the people and as

such, it did not need to establish root of title. He argued that this attitude of the Appellant is tantamount to stating that a certificate of occupancy is a magic wand and once issued cannot be challenged while the Respondent’s case during the trial was that he was in effective possession of the land before the promulgation of the Land Use Act.

The Respondent further argued on the authority of the cases of ADERONPE VS. ELERAN & ORS (2019) 289 LRCN 77 and G.C.M. LTD VS. T. P. HOTEL (2019) 289 LRCN and others that a certificate of statutory right of occupancy issued under the Land Use Act 1978 is at best a prima facie evidence of such right or title to the land and may be challenged in appropriate cases and rendered invalid. He also submitted that for a certificate of occupancy issued under the Land Use Act to be valid, there must not be in existence a statutory or customary owner of the land who was not divested of his legal interest to the land prior to the grant. This is because the Supreme Court held in the cases cited supra that a deemed right of occupancy under Section 34 of the Land Use Act ranks pari passu with the statutory right of

occupancy under Section 5 of the Act and where the government wants to revoke the deemed right of occupancy, it must comply with the provisions of Section 28 thereof.

The Respondent insisted that his deemed right of occupancy was not revoked by a procedure provided under Sections 5(1) and 28 of the Act before the Appellant was issued a certificate of occupancy on the disputed land. He finally argued that the learned trial Judge was right to hold that the mode of acquisition of the disputed land by the Respondent’s late father was in consonance with the Benin Customary law, and that the Respondent having been the owner in possession is a deemed owner of the disputed land by virtue of Sections 34(2) and 36(4) of the Land Use Act, which right was not extinguished or revoked by the Governor of Bendel State before issuing exhibit ‘1’ to the Appellant.

By way of reply on points of law, the Appellant argued in the Appellant’s Reply brief that the validity of the Respondent’s exhibit 4 (Oba’s approval) was questioned but the trial Court failed to decide on it. Rather, the learned trial Judge suo motu supplied evidence in its support and went on to rely on

it to reach his decision. That by virtue of Section 26 of the Land Use Act, any transaction or any instrument which purports to confer on, or vest in any person any interest or right over land other than in accordance with the provisions of the Act shall be null and void and for this argument, the learned senior counsel relied on the case of ILORI V. ISHOLA (2018) 15 NWLR (PT. 1641) 77 at 98 G-H.

RESOLUTION OF ISSUES 1 & 2
The facts of this case are simple and not in contention. As alluded to earlier, the claim of the Appellant (as the plaintiff) before the trial Court and in this appeal is that it was granted right of occupancy of the disputed land vide a certificate of occupancy dated 24th August 1987 issued to it by the Governor of Bendel State now Edo State (exhibit ‘1’) for a period of 99 years. Having taken possession of the land by the said certificate of occupancy, it fenced the land, but that the Respondent trespassed on the land and commenced construction thereon. They sought for declaration that the Respondent has committed trespass on its land and an award of N10million as damages and a perpetual injunction against the Respondent. So

the Appellant’s claim is for trespass to land and damages against the Respondent. The Apex Court in the case of UDE & ORS VS. CHIMBO & ORS (1998) LPELR-3288 (SC) or (1998) 12 NWLR (PT. 577) 169. per IGUH, J.S.C. speaking for the Apex Court stated the position of the law on claims of trespass to land thus:
Generally speaking, a claim in trespass is rooted in exclusive possession and all a plaintiff needs prove is that he has exclusive possession of the land in dispute, once a defendant claims ownership of the same land, title is put in issue and the plaintiff, to succeed, must show a better title than that of the defendant to the land in dispute. See Amakor v. Obiefuna (1974) 1 NMLR 331 at 336. Consequently, a trespasser in possession is only entitled to sue in trespass, persons who are not the true owners of the land in dispute or have no better title thereto than himself. Such a trespasser in possession cannot therefore succeed in an action in trespass where he sues one who has a better title to the land in dispute than himself.
See also AMAYO VS. ERINMWINGBOVO (2006) LPELR-458 (SC) and OMOTAYO VS. CO-OPERATIVE SUPPLY ASSOCIATION

(2010) 16 NWLR (PT. 1218) 1, among several others on this established principle of law.

The Respondent in this appeal claimed the ownership of the land vide Bini customary law, thus effectively putting the title of the land in issue and the Appellant now has to establish better title to the disputed land for it to succeed in its claim of trespass against the Respondent.

The sworn testimony of the Appellant’s star witness PW1 (Chain Celsus Ermosei), its senior editor is contained in pages 57 to 59 of the record of appeal. The salient part of his evidence was his statement that “I am sure the land belongs to the Plaintiff as the plaintiff has a certificate of occupancy issued by the then Bendel State Government.” The Appellant also subpoenaed PW2, Jonathan Imafidon, an officer in the Edo State Ministry for Lands, Survey and Housing to confirm the validity of the certificate of occupancy granted to the Appellant. It is clear that the Certificate of Occupancy dated 24th August 1987 is the bedrock of the Appellant’s claim to the title to the disputed land. The question is was it enough to establish a superior or better title to the land than the

Respondent’s.

The Respondent’s case before the trial Court through his witnesses’ statements on oath located in pages 25 to 40; and under cross-examination in pages 62 to 68 of the record of appeal is that his father gave him the land in 1967 after he paid the sum of N3000 for it. In support of this claim, the Respondent relied on the receipt issued to him by his father (exhibit 8) copied in page 40 of the record of appeal. His late father who was the chairman of Ward 11/K plot allocation committee applied to the said ward 11/K for the allocation of the land to him in 1967 and was given approval to own the disputed land in the same year. He called DW4, a 71-year-old man who testified that he acted as a pointer of the land to the Respondent’s late father and also witnessed the transfer of the same by the Respondent’s late father to the Respondent in 1976.

I also noted that the Oba’s approval the Respondent relied upon (copied in page 39 of the record) was signed by eleven (11) named persons as witnessing the allocation before the Oba’s signature dated 29/1/69 was appended. These transactions, i.e. Oba’s approval of the application of the Respondent’s

late father’s application, the transfer of the disputed land to the Respondent all occurred before the promulgation of the Land Use Act in 1978 under which the Appellant was granted the certificate of occupancy (exhibit ‘1’) in 1987.

In the circumstance, the trial Court was right and I totally agree with its holding that having been in customary possession of the land prior to the coming into force of the Land Use Act, the Respondent’s right to the land is protected by Sections 34(2) and 36(4) of the Act. The Appellant has to show the Court how the Edo State Government has divested the Respondent of that interest on the land to validly grant same to it under the provisions of the same Act.

In its attempt to show that exhibit ‘1’ was validly granted to it, the Appellant argued that the entire land in Edo State is vested in the Governor to hold and administer on behalf of the people of the state, relying on the case of ILORI V. ISHOLA (supra). Secondly, the Appellant questioned the validity of the Oba’s approval at the trial, but the trial Court did not decide on that. The facts of the case of Ilori Vs. Ishola (supra) from which the Appellant quoted

are far apart to the facts of this case, as such the case is inapplicable to this case.

I have strenuously and meticulously perused the record of this appeal and I too, like the learned trial Judge, have not seen

any evidence provided by the Appellant to show how the land in dispute was acquired by the Bendel State Governor (now Edo State) who granted exhibit ‘1’ to the Appellant who validly acquired the disputed land divesting anybody including the Respondent of the title to same by virtue of the Land Use Act. The Appellant’s learned counsel has argued that having identified the land in dispute as being situate at the Edo Property and Development Authority (formally BDPA) Estate raises a presumption that the plots of land therein have been acquired by the then Bendel State Government. Acquisition of land under the Land Use Act cannot be presumed. The procedure for so doing is stated therein and whether or not the procedure was followed is a matter of fact that must be pleaded and proved. The reliance of the learned senior counsel on Section 167 of the Evidence Act is not tenable for the fact of acquisition of land under Section 28 of the Land Use Act is not one of the presumptions covered by that section. I disagree with the learned counsel contention. It is my firm view that just as outright grant of land vide certificate of occupancy can never be presumed to grant title

automatically, so also the validity of acquisition of land under the Land Use Act can never be presumed as posited by the learned senior counsel. Having failed to provide reliable evidence that the grantor (Edo State Governor) validly acquired the disputed land before granting same to the Appellant vide exhibit ‘1’, the learned trial Judge was right to hold that it has failed to prove its title to the land vide the said exhibit ‘1’.

The learned senior counsel has also argued that the trial judge ought to, suo motu join the Governor of Edo State who will be in a position to explain how he acquired the land which he granted to the Appellant by exhibit ‘1’. I must state that I am taken aback by this argument because the Appellant was the one relying for his title to the land through the Governor of Edo State as it were. It is his duty to call the Governor to testify for him or to join him as a defendant or claimant to defend to the suit. I think the argument of the learned senior counsel accusing the learned trial Judge of failure in procedure is untenable and unfair, and that is to say the least. It is discountenanced.

It was also argued by the learned

senior counsel that the counter claim of the Respondent upon which was granted by the trial Judge was incompetent because the Respondent did not seek and obtained leave of the trial Court to rely on the facts in its statement of defence in support of its counter claim. As such there were no facts supporting its relief seeking to nullify the certificate of occupancy which relief was granted by the trial Court. I note however, that the Appellant’s learned senior counsel conceded in his argument (paragraph 5.07 of the Appellant’s brief) that the Respondent did state that he was relying on the facts stated in his statement of defence in support of his counter claim. Again, I return to the record of appeal to examine the counter claim of the Respondent. It is copied in pages 13 to 16 titled “AMENDED STATEMENT OF DEFENCE NO.1 AND COUNTER CLAIM”. Even though a counter claim is an independent action or counter action, the usual practice is that it is always added to the statement of defence as was held in the case of UBN PLC VS. MOTORS (NIG.) LTD (1997) 7 NWLR (PT. 513) 387 that the Appellant referred us to. See also ORJI & ORS. VS. ILOPUTAIFE & ORS (2011)

LPELR-9199 (CA). There was no need for the Respondent as counter claimant to file a writ or call separate evidence from the defence to the main claim. My examination of the statement of defence and counter claim of the Respondent revealed that it substantially complied with the laid down procedure regarding counter claim and it was competent, contrary to the argument of the Appellant.

Consequent upon all I have said supra, I agree with the learned trial Judge that the certificate of occupancy issued to the Appellant was in error, null and void and was rightly set aside. I resolve issues 1 and 2 against the Appellant.

ISSUE 3
In arguing this issue, the Appellant’s learned counsel referred us to the testimony of DW1 on exhibit ‘4’, the Oba’s approval of the Respondent’s father’s application for the title of the land in dispute. Firstly, this witness admitted that the name of the Oba who signed the approval was not stated on the exhibit. Secondly, there are three dates on exhibit ‘4’, 17/1/67, 21/1/67 and 29/1/67. The complaint of the Appellant under this is that the quotation of the learned trial Judge in the vexed judgment while reviewing the

evidence of DW1 in page 133 lines 6-12 is different from what that witness actually stated under cross-examination in page 64 lines 18-25 of the record of appeal. The learned counsel contended that the trial Judge not only quoted DW1’s evidence out of context, but in further attempt to aid the Respondent’s case proceeded to hold on exhibit 4 that “for all who are familiar with the Oba’s approval as the document is peculiarly called, the name of his majesty the Oba of Benin is not printed in any such document before or after his signature.” He argued that there was no pleading or evidence on the Oba’s signature and that the evidence of the DW1 under cross-examination to the effect that the Oba of Benin does not put his name on the application document goes to no issue, having no foundation in pleadings and should be disregarded. Further, that the learned trial Judge by holding the supra quoted statement in the judgment descended into the arena by supplying evidence that was not existing in record to assist the Respondent’s case. He relied on the cases of ATSER V. GACHI (1997) 6 NWLR (PT. 510) 609 at 630. AKPAN VS. UDOH (2008) 3 NWLR (PT. 1075) 590 and

JOHN SHOY INT’L LTD VS. A.E.P.B. (2013) 8 NWLR (PT. 1357) 625 (A-B) and others in urging us to hold that the findings of the trial Court was perverse having not been supported by evidence on record and has occasioned miscarriage of justice against the Appellant, and to resolve this issue in its favour.

The Respondent did not specifically respond to this complaint of the Appellant save to say in page 16 of his brief that the learned trial Judge properly evaluated the evidence led by both sides before reaching his decision in favour of the Respondent. That the Appellant has not met the conditions for intervention of this Court on the learned trial Judge’s findings of fact based on its assessment of the witnesses who testified before him. He relied on the case of EDJEKPO VS. OSIA (2007) ALL FWLR PT. 351 page 1517 in support of the argument.

RESOLUTION
The Appellant’s learned counsel quoted what the DW1 stated under cross-examination regarding the absence of the name of the Oba who signed exhibit ‘4’ granting customary right of occupancy to the Respondent’s late father. The quoted evidence of DW1 in paragraph 6.06 of the Appellant’s brief is reproduced

below:
It is true that the 21/1/67 is written within the rubber stamp purported to be that of Oba of Benin. It is true that there is no stamp where 29/1/67 is written below. The stamp is that of the secretary of the Oba without it, the Oba will not sign. The Application must pass through the secretary. It is not true that in Benin Kingdom the old Oba puts his name on the approval. It is not done.” (lines 18-25, page 64 of the Record)

The Appellant complained that in reviewing the above evidence elicited from the Respondent’s DW1 under cross- examination by the Appellant, the trial Court misquoted it out of context thus:
It is not true that the 21/1/67 is written within the rubber stamp purported to be that of the Oba of Benin. It is true that there is no stamp where 29/1/67 is written below. The stamp is that of the secretary to the Oba. Without it, the Oba will not sign. The application must pass through the secretary. It is true that in Benin Kingdom no Oba puts his name on the approval. It is not done. (lines 6-12 page 133 of the Record).

The only difference between the two quotations is the underlined portions. The Appellant quoted

DW1 as saying “It is not true that in Benin Kingdom, “the old Oba puts his name on the approval. It is not done” as against the learned trial Judge’s quoting him as saying; “It is not true that in Benin Kingdom no Oba puts his name on the approval”. It is important to note that the meaning or the message the witness conveyed by his evidence elicited under cross examination is that the Oba of Benin only signs the approval but never puts his name. This is clear from the next phrase of the witness “It is not done.” Thus whether the witness referred to the Oba as “Old Oba” as quoted by the Appellant or he said “no Oba” as quoted by the trial Judge makes no difference to this message. To my mind, there was nothing material to this contention worthy of my intervention in favour of the Appellant. What is important is the content of the entire evidence expressed by the DW1. It is trite law that evidence of a witness extracted under cross-examination is as good if not better than evidence in chief. If the evidence is relevant, it is admissible and the Court is free to rely on it in deciding the issue in controversy. See MTN VS. CORPORATE COMMUNICATION INVESTMENT LTD

(2019) LPELR-47042 (SC), STATE VS. YAHAYA (2019) LPELR-47611 (SC).

With regards to the comment of the learned trial Judge’s comment that “for all who are familiar with the Oba approval as the document is peculiarly called, the name of his majesty Oba of Benin is not printed in any such document before or after his signature” is not completely strange and/or outside the evidence already on record regarding the issue of Oba’s name on the approval because of the evidence of DW1 under cross examination (supra) that the Oba’s name is never put on the approval. He said “it is never done.” Assuming that phrase used by the learned trial judge to wit; “for all who are familiar with the Oba’s approval….” was inappropriate, but it is not material enough to effect the correctness of his decision in line with the evidence on record. See ECOBANK VS. AROGUNDADE & ANOR (2019) LPELR-47314 (CA), where this Court per Abubakar, JCA held at pages 56 to 57 that:
The law is trite that a mistake or slip in a Judgment will not result in the setting aside of the Judgment, unless the said mistake or slip is material and/or substantial and is shown to have affected the

decision reached in the Judgment… In Amasike v Registrar General CAC (2010) 7 MJSC 86, this Court held emphatically that it is not every error or mistake that results in a reversal of a judgment and an appellate Court must be wary of this position of the law. An error or slip that may have the result of the appeal being allowed must be fatal in the sense that it must occasion a substantial miscarriage of justice. It has to be noted that it is not every slip committed by a judge in his judgment that will amount to a misdirection which will result in the appeal being allowed, the misdirection to be fatal, must have occasioned a substantial miscarriage of justice. The mistake must have affected or influenced the decision appealed against before it can result in the reversal of the decision.

The Appellant has contended that the evidence of DW1 under cross-examination to the effect that Oba of Benin’s name is never stated on the Oba’s approval was not pleaded as such it goes to no issue. This contention is incorrect because the entire document was pleaded, front loaded and admitted in evidence without any objection. It is relevant to the fact in issue,

i.e. the title to the disputed land. How then can it be argued that it was not pleaded. A document must be taken as a whole and not piecemeal. In any event, the Respondent’s learned counsel asked the question regarding the Oba’s signature on the document and responded to by the witness. It therefore cannot lie in the mouth of the Appellant to seek to disregard the response simply because it did not favour its case, but strengthened or helped the Respondent’s case. See MOJEED VS. STATE (2020) LPELR-49900 (CA) where this Court held that a party who elicited an inculpatory evidence from cross-examination is estopped from insisting that such evidence does not bind him. I find no merit in the argument of the Appellant and I resolve issue 3 against the Appellant.

ISSUE 4
In arguing this issue, the Appellant submitted that the Appellant who had statutory right of occupancy over the land in dispute between 24th August 1987 and 30th October 2013 when it was revoked cannot be held for trespass on the same land and have damages awarded against it being on the land while his statutory right of occupancy subsisted. Relying on the case of

MADUBUONWU V. NNABUE (1992) 8 NWLR (PT. 260) 440 at 455, the Appellant submitted that damages in trespass are nominal and are awarded to show the Court’s recognition of a party’s proprietary and possessory rights over land in dispute. Where a party desires more damages, such should be properly pleaded and proved. Even assuming the Respondent proved trespass to the land in dispute against the Appellant, he is only entitled to nominal damages and that the sum of N600, 000 damages awarded to the Respondent was excessive and the trial Court did not give any hypothesis for awarding that sum to the Respondent. We were urged to set aside the award of N600, 000 damages made the trial Court made against the Appellant.

On his part, the Respondent argued that an award of damages by a trial Court can only be interfered with on appeal where the trial Judge acted on some wrong principle of law or the amount awarded was so high or so very small to make it an entirely erroneous estimate of the damages suffered. He submitted that the award of damages in this case was in order relying on the case of MATERIAL AID SOCIETY LTD. VS. AKEKELE (1965) ALL NLR 357 for support.

RESOLUTION
General damages are presumed by law to follow from the type of wrong complained of. See Black’s Law Dictionary, Ninth Edition page 446. As alluded to earlier, this case is a claim rooted in tort of trespass, which is actionable per se. General damages will ordinarily arise and can be awarded where there was proof of tort of trespass or in favour of a party who proves a better title to the disputed land. However, it is within the discretion of the trial Court to determine the quantum of damages to be awarded taking into consideration the circumstances of the case. In so doing, the trial Court is required to demonstrate or give reasons on how it arrived to what amount to reasonable damages it awarded. See AJOSE-ADEOGUN & ANOR. VS. OLOJEDE & ORS (2018) LPELR-43683, MOUGBOH VS. TEMLONG (2019) LPELR-50346 (CA).
However, I cannot say that it is a mandatory requirement that the reasoning behind the award of the quantum of general damages must be stated by the trial Court in view of the presumption of law on general damages highlighted supra. It is only a desirable requirement for the trial Judge to state the reasoning behind the exercise of the

discretion, but failure to state the reasoning will not lead to the setting aside of the award simply because the party against which it is awarded complained that it is excessive.

In this case, the learned trial Judge awarded general damages in the sum of N600, 000 against the Appellant “for trespass on the counter claimant’s land.” The award was made following the finding of the trial Court which I agree with in my determination of issues 1 and 2 supra. The Appellant has not convinced me to interfere with the award of damages for trespass especially in view of the fact that the Appellant too sought for the award of the sum of N10million as general damages in its failed claim of trespass. I therefore resolve issue 4 against the Appellant.

Consequent upon my resolution of all the issues against the Appellant, this appeal fails and it is hereby dismissed by me. The judgment of the High Court of Edo State delivered on the 30th October 2013 in respect of suit NO: B/315/2004 is affirmed by me. Parties shall bear their cost of prosecuting this appeal.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of

my learned brother, B.B. Aliyu, JCA. I agree with the reasoning and conclusion therein which I adopt as mine in dismissing the appeal.
I abide by the order as to costs in the lead judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother BALKISU BELLO ALIYU, JCA and I totally endorse the reasoning and conclusion therein.
I adopt the consequential order(s) in the lead judgment.

Appearances:

CHIEF DURU ADEYELE, ESQ. SAN, with him, S. C. ETI, ESQ. For Appellant(s)

OSUNDE, ESQ. For Respondent(s)