ENG. HUAT INDUSTRIES LIMITED v. OBED NKEMDILIM (2013)

ENG. HUAT INDUSTRIES LIMITED v. OBED NKEMDILIM

(2013)LCN/6759(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 16th day of July, 2013

CA/C/54/2011

RATIO

WHETHER A NEGOTIABLE INSTRUMENT THAT HAS NOT BEEN REGISTERED IS ADMISSIBLE IN LAW

Before Their Lordships

MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria

JOSEPH TINE TURJustice of The Court of Appeal of Nigeria

Between

ENG. HUAT INDUSTRIES LIMITEDAppellant(s)

AND

OBED NKEMDILIMRespondent(s)

JOSEPH TINE TUR,J.C.A.(Delivering The Leading Judgment): On the 12th day of February, 2007, Late Mr. Boniface Nkemdilim and Ela Ogar instituted an action against Eng. Huat Rubber EPF at the High of Justice, Cross River State in the Akamkpa Judicial Division presided over by Hon.Justice M.O. Eneji.The action was founded on the fact that the plaintiffs entered into an agreement on 1st day of March, 1997 with the Chiefs of Ekpiri Iko Community in Biase Local Government Area of Cross River State represented by Chief Samuel Adamben, Chief Ijenga Awuri, and Chief Arorim Ayang to exploit timber in the community’s forest land for a period of ten years. In the course of exploiting the timber, Eng.Huat Rubber EPF trespassed into the forest on the 23rd day of September, 2004, beat up their workers, damaged their equipment, seized and converted their timber and lorry, etc and have continued to deprive them of their rights in the forest. Messrs Boniface Nkemdilim and Ela Ogar took out the writ of summons accompanied with a statement of claim in the Court below on 12th day of February, 2007 seeking the following reliefs in the statement of claim against Eng. Huat Rubber, EPF:
“By reason of the matter stated paragraphs, in the aforesaid the plaintiffs have suffered loss and damages.
PARTICULARS OF SPECIAL DAMAGES:
(i) Value of damaged plaintiff’s workers house at the forest at the cost of N800,000.00.
(ii) Value of one tractor at the cost of N10,000,000.00
(iii) Cost of damaged equipment valued at N1,000,000.00
(iv) Value of seized and converted timber at the cost of N1,300,000.00
(v) Loss of monthly earnings and profit from the sale of timber at a monthly value of N2 million per month from October, 2004 to February, 2007 when the contract ought to terminate N58,000,000.00.
(vi) The Market value of N10,000 pcs of 2 x 12 x 12 dimension of planks at the current rate of N1,800 per unit N18,000,000.00
(vii) The Market value of 20,000 pcs of 3 x 3x 12 dimension of planks at the cost of N600 per unit N12,000,000.00.
(viii) The market value of 25,000 pcs of 2 x 4x 12 dimension of planks at the cost of N400 per unit N10,000,000.00.
(ix) The market value of 15,500 pcs of 4 x 4 x 12 dimension of planks at the cost of N700 per unit N8,750,000.00
(x) The market value of 15,000 pcs of 2 x 3 x 12 dimension of planks at the cost of N300 per unit N4,500,000.00
Total-N124,350,000.00
20. The plaintiffs further avers that from the beginning the Defendant had no legal right whatsoever or business with the Ekpiri Iko forest and the timber therein which were not part of the assets of CREL transferred to the Defendant by the Cross River State council on Privatization (the plaintiff hereby pleads the Agreement between the Cross River State Council on Privatization and Eng. Huat Rubber Industries EPF dated 23rd day of September, 2004) the Defendant is hereby given notice to produce the original during the trial.
21. The plaintiffs states that the defendant’s act of entry into the forest and the act of using thugs and the police to chase the plaintiff and his-workers out of the forest were wrongful, unwarranted and unjustifiable.
WHEREFORE, the plaintiffs claim as follows.
“1. A declaration that the plaintiffs are entitled to exploit timber in the woodland area (forest) covering both sides of the V-Junction called Ugor Iyoro Junction up to Inyang Ita River from 1997-2007 in accordance with the agreement between the plaintiffs and Ekpiri Iko community the owners of the said forest.
2. A declaration that the plaintiffs are entitled to exploit timber from the said forest without let, hindrance or interference by the Defendants until 2007,the agreed period stipulated by the agreement between the plaintiffs and Ekpiri Iko Community.
3. N150 Million being both special and general damages suffered by the plaintiffs as a result of the Defendant’s wrongful acts of forcibly eviction of the plaintiffs from the aforesaid forest and subsequent dispossession thereof.”
Eng. Huat Rubber EPF entered appearance and filed a statement of defence on 14th May, 2007 denying liability. They pleaded that it was the plaintiffs that were trespassing in the forest land which formerly belonged to Cross River Estates Limited (CREL) from whom the defendant derived title by sale through Cross River Privatization Council on Engr. Huat Rubber EPF further counter-claimed against the plaintiffs as follows:
“1. The defendant restates paragraphs 1 to 15 of the Statement of Defence and states further that the plaintiffs have fell and sawn over 550 stems of hard wood and evacuated most of the timber before the security men discovered the trespass and illegal exploitation of the defendant’s wood by the plaintiffs.
2. The Defendant avers that the entrance of the plaintiffs into the fallow land inside the defendant’s plantation and the exploitation of timber therein is illegal and amount to trespass. It is also a great threat to the investment of the defendant and the privatization scheme of the state Government.
3. The Defendant sent the security team round the entire area where the plaintiffs are busy sawing timber inside the defendant’s plantation on the 3rd August, 2004 and it was discovered to the chagrin of the Defendant that the plaintiffs have already sawn the following number of planks of various dimensions:
(a) 10,000 pcs of 2x12x12
(b) 20,000 pcs of 3x3x12
(c) 25,000 pcs of 2x4x12
(d) 15,000 pcs of 2x3x12
(e) 12,500 pcs of 4x4x12
The Defendant states that the prevailing market rates for the various dimensions of timber or planks are as follows:
(a) 2x12x12 dimensions of planks cost = N1,800 per unit.
(b) 3x3x12 dimensions of planks cost = N600 per unit.
(c) 2x4x12 dimensions of planks cost = N400 per unit.
(d) 2x3x12 dimensions of planks cost = N300 per unit.
(e) 4x4x12 dimensions of planks cost = N700 per unit.
By reason of the foregoing paragraphs the Defendant/counter-claimant has suffered loss and damages.
(i) The Market value of 10,000 pcs of 2x12x12 dimension of planks at the current rate of N1,800 per unit N18,000,000.00
(ii) The Market value of 20,000 pcs of 3x3x12 dimension of planks at the cost of 600 per unit N12,000,000.00
(iii) The market value of 25,000 pcs of 2x4x12 dimension of planks at the cost of N400 per unit N10,000,000.00.
(iv) The market value of 15,000 pcs of 4x4x12 dimension of planks at the cost of N700 per unit N10,500,000.00
(v) The market value of 12,5000 pcs of 2x3x12 dimension of planks at the cost of N300 per unit N3,750,000.00
WHEREFORE the Defendant/Counter-claimant claims from the plaintiffs jointly and severally as follows:
(i) A declaration that the entry of the plaintiffs into the Ekpiri-Iko axis of the defendant’s plantation known and called “Iwuru Fallow Land” situated at Uyanga a Rubber Estate acquired by the Defendant from the Cross River Estates Limited (CREL) and their continuous exploitation and evacuation of timber therein is illegal and tantamount to trespass.
(ii) A declaration that the purported agreement allegedly entered into in 1997 plaintiff’s between the plaintiff and the Ekpiri-Iko Communities for the exploitation of timber inside the defendant’s plantation/fallow land is illegal, unenforceable and void ab-initio.
(iii) An order of perpetual injunction restraining the Defendants, their agents, servants or privies from further entry into the said fallow land or any part of the Defendant’s Rubber plantation.
(iv) The sum of N54,250,000.00 (Fifty Four Million Two Hundred and Fifty Thousand Naira only) being the value of wood already sawn (and removed) by the Defendants illegally from the defendant’s fallow land.
(v) The sum of N100,000,000.00 (One hundred Million Naira only) being special and general damages suffered by the Defendant/Counter-claimant as a result of the plaintiffs act of trespass and illegal exploitation of timber.”
The plaintiffs filed a defence to the counter-claim follows:
“6. The plaintiffs deny paragraph I and 2 of the Counter Claim and in answer states that the plaintiffs did not trespass into the disputed forest and did not exploit timber therein illegally but have been in legitimate possession of the said forest areas for a period of 7 years without any disturbance by the Cross River State Government or CREL whose interest the Defendant acquired by privatization.
7. The plaintiffs admit paragraphs 3 and 4 of the Counter Claim to the extent that the plaintiffs were busy sawing timber in the disputed area which the plaintiffs had right to do before the Defendant wrongfully and forcefully dispossessed the plaintiffs with self help and without due process of law which resulted in colossal loss of value of the timber stated in paragraph 3 at the prevailing market prices stated in paragraph 4 of the counter claim.
8. That plaintiffs further states that the defendant did not suffer any loss and damage as claimed and as such they are not entitled to any of the reliefs (i)-(v) as claimed in the Counter-Claim against the plaintiffs.”
The matter proceeded to trial. Oral and documentary evidence was tendered on both sides.
In the course of trial Ela Ogar was dropped while Mr. Boniface Nkemdilim after testifying as Pw1 died in the course of proceedings. The statement of claim was amended and his son by name Obed Nkemdilim substituted him. At the end of trial Counsel submitted written addresses. On the 30th day of June,2011 his Lordship entered judgment in favour of the plaintiff/respondent but dismissed the counter-claim holding at page 99 lines 4 to page 100 lines 1-7 of the printed record as follows:
“At the close of the claimant’s and the defendant’s case, I find and hold that the claimant has made out a more probable case, on the preponderance of overwhelming evidence than the Defendant. Issues 1, 2, 3, and 4 are resolved in favour of the claimant. Judgment is for the claimant.
Consequent upon the above judgment the following DECLARATION and ORDERS are hereby made:
(1) The claimant is hereby declared to have been entitled to exploit timber in the woodland area (forest) covering both sides and centre of the V-Junction called Usor-Iyoro Junction up to Inyang-Ita River from 1997 – 2007, in accordance with the agreement between the claimant and Ekpiri Iko community, the owners of the said forest.
(2) The claimant is hereby declared to have been entitled to exploit timber from the said forest without let, hindrance or interference by the Defendant until 2007, the agreed period stipulated by the agreement between the claimant and Ekpiri Iko Community.
(3) The Defendant is not liable to relief (i), (ii), (iii), (iv) and (v) claimed by the claimant’s special damages.
(4) The Defendant is liable to reliefs Nos. (vi), (vii), (viii), (ix) and (v) claimed by the claimant’s special damages.
(5) The Defendant is hereby ordered to pay the claimant the sum of N52,750,000.00 (Fifty Two Million, Seven Hundred and Fifty Thousand Naira) only, which is the total sum claimed in reliefs Nos. (vi) to (x) by the claimant as special damages.
(6) A general damage of 500,000.00 (Five Hundred Thousand Naira) only, is also hereby awarded in favour of the claimant against the Defendant.
(7) The Forestry commission is directed to proceed against the Defendants for illegal exploitation of timber, at Ekpiri Iko forest.
(8) This case is hereby accordingly determined and finally disposed.”
Being aggrieved the defendant filed a Notice of Appeal on 9th August, 2010. On the 28th September, 2011 the appellant sought and was granted leave by this Court to file an Amended Notice of Appeal and to amend the name of Eng. Huat Rubber EPF to read “Eng. Huat Industries Ltd., and a deeming order. The appellant’s brief of argument was filed on 3rd June, 2011. The Reply brief was filed on 4th December, 2012. The name Eng. Huat Industries Ltd. was not however amended to tarry with the order for amendment. The respondent’s brief of argument was filed on 5th November, 2012 and deemed properly filed and served on 27th November, 2012. When the appeal came up for hearing on the 22nd May, 2013 learned Counsel adopted their respective briefs of argument. I shall ignore the fact that the learned Counsel to the appellant and the respondent did not amend their respective processes to reflect Eng. Huat Industries Ltd. as the appellant. I shall however treat same as an error that has not prejudiced the hearing of this appeal on the merit. Wherever the name “Eng. Huat Rubber EPF appears in the process, it should be taken to mean “Eng. Huat Industries Ltd.”
Appellant’s issues for determination are set out at page 2 paragraphs 3.0 to 3.7 of the brief of argument as follows:
“1. Whether the learned trial Judge did not misdirect himself in law and facts when he held that Exhibit “C” the agreement between Ekpiri Iko Community and the respondent’s deceased brother is on lease.
2. Whether the learned trial Judge was right to have expressed his opinion on the alleged discrepancy on Exhibit “A” without calling on the parties to address him on it.
3. Whether the learned trial Judge property evaluated Exhibits “A”, “B” and “F” tendered by the appellant’s witness in the light of the pleadings of the parties before trial Court.
4. Whether the learned trial Judge did not misdirect himself in facts and law in holding that the forest land in dispute does not form part of the estate transferred to the Appellant by the Cross River State Privatization Council.
5. Whether the learned trial Judge was not in error when he shifted to the appellant the burden of proof of the respondent’s registration as a permittee with the cross River State Forestry commission to the Appellant.
6. Whether the learned trial Judge did not misdirect himself in facts and law in holding that the forest land in dispute does not form part of estate transferred to the appellant by the Cross River State Privatization Council.
7. Whether the learned trial Judge was right in dismissing the counter-claim of the appellant.”
The learned Counsel to the respondent formulated the following lone issue for determination at page 4 of the brief of argument:
“Whether having regard to the respondent’s claim and appellant’s counter-claim, the state of the pleadings, the exhibits and evidence before the Court, trial Court was right in giving the judgment in favour of the respondent and in dismissing the appellant’s counter-claim. (This issue covers grounds 1-8 of the appellant’s grounds of appeal).”
I have observed that eight grounds accompany the Amended Notice of Appeal from which the learned Counsel to the appellant formulated seven issues for determination. According to the learned Counsel issue 1 is covered by grounds 1; issue 2 by ground 3; issue 3 by ground 2; issue 4 by grounds 2 and 4; issue 5 by ground 7; issue 5 by ground 8. Issue 7 is not covered by any ground of appeal and is deemed abandoned and struck out. See West African Examination Council vs. Adeyanji (2008) 4 SCNJ 167. The issues formulated should not be in excess of the grounds of appeal. Issue 3 is covered by ground 2, issue 4 is again covered by grounds 2 and 4. That is to say grounds 2 and 4 are covered by issue 3 and 4.
ARGUMENT: ISSUE ONE:
The learned Counsel to the appellant’s argument on issue one is that the learned trial Judge should not have referred to the agreement between the respondent and the Chiefs of Ekpiri Iko Community tendered in the Court below and marked Exhibit “C” as a “lease” or license as that is not what the respondent had pleaded but as an “Agreement/Contract.” Counsel referred to paragraph 4 of the Statement of Claim and the oral testimony of late Boniface Nkemdilim (Pw1) given on 9th day of August, 2007 in support of his argument. It was submitted that the learned trial Judge also erred when evaluating the evidence by referring to Exhibit “C” as a “license”, That even if Exhibit “C” had been pleaded as a lease it was not shown to have been registered under Section 15 of the Land Instrument Registration Law Cap.92 Laws of Cross River State of Nigeria Vol.4 of 1983, citing Okafor vs. Soyemi (2001) 2 NWLR (Pt.698) 465 at 474; Agbodike vs. Onyekaba (2001) 10 NWLR (Pt.722) 576 at 587 paragraph “F” and Awaobo vs. Eze (1995) 1 NWLR (Pt.372) 393. It was again contended that since Exhibit “C” created a relationship between the respondents and the Ekpiri Iko Community for a term of 10 years (1997-2007) it was a registrable instrument. But it was contended that Exhibit “C” was pleaded as a mere receipt evidencing the transaction between the respondent and the Community. The learned trial Judge misdirected himself to have treated it as a lease. Counsel urged this Court to hold that the learned trial Judge erred to have relied upon Exhibit “C” as conferring valid title on the respondent to found an action in trespass. Issue one should be resolved in favour of the appellant.
ISSUES TWO, THREE AND FOUR:
They are interwoven so I shall consider them together. Learned Counsel submitted that the learned trial Judge erred to have treated Exhibit “A” as of questionable and doubtful character and not to have attached any weight to it. His Lordship raised the issue suo motu without calling on Counsel or the parties to address him on the issue, citing Stirling Civil Engineering (Nig.) Ltd. vs. Yahaya (2005) 11 NWLR (Pt.935) 191 at 211-212. Counsel referred to paragraph 14 of the Amended Statement of claim and where the exhibit was admitted in evidence without challenge or adverse comments from the opposing Counsel. Besides,the learned trial Judge did not properly evaluate Exhibits “A”, “B” and “F” tendered by learned Counsel to the appellant. That if his Lordship had done so he would have found that the forest land in dispute is located right inside Iwuru fallow land at the Ekpiri Iko axis of the forest. Learned Counsel urged this Court to hold that the forest land formed part of the estate transferred to the appellant by the Cross River State Privatization Council.
ISSUE FIVE:
Counsel’s contention on issue five is that the learned trial Judge erred in law to have shifted the burden of proof of the respondent’s registration of his permit with the Cross River State Forestry Commission to the appellant, citing Okene vs. Orianwo (1998) 9 NWLR (Pt.566) 408 at 440 and National Bank of Nigeria Ltd. vs. Deborah (1994) 1 NWLR (pt.319) 126 at 139. Without the production of the permit the respondents were involved in the illegality of felling timber in the forest. The learned trial Judge ought to have held Exhibit “C” as unenforceable, citing S.D.C. Cementation (Nig.) Ltd. & Anor vs. Nagel & Co. Ltd. & 1 Or. (2003) 4 NWLR (Pt.811) 611 at 637-638 paragraphs “G”-“D”. The Court was urged to resolve issue five in favour of the appellant.
ISSUE SIX:
The argument under issue six is that the respondent did not prove the reliefs set out in paragraphs 19(vi),(vii),(viii), (ix) and (x) of the Amended Statement of Claim to be entitled to the N500,000.00 general damages awarded the respondent. The claims were not only vague but unexplained having no foundation whatsoever. Not representing or relating to the value of the timber allegedly seized and converted by the appellant, the learned trial Judge ought not to have made, any award covering them. Counsel cited Chinda vs. Amadi (2002) 7 NWLR (Pt.767) 505 at 515 where it was held that a claim founded on special damages must be explicitly claimed in the pleadings with particulars showing how it was made, citing Consolidated Breweries Plc vs. Aisowieren (2001) 15 NWLR (Pt.736) 424 at 459; Oladehin vs. C.T.M.L. (1978) 2 SC 23; Ugochukwu vs. Co-operative and Community Bank Ltd. (1996) 6
NWLR (Pt.453) 127 and Ananze vs. Attah & Anor (1999) 3 NWLR (Pt.596) 647 at 657. Learned Counsel took this Court through the pleadings and the evidence in the Court below before coming to the conclusion that issue six should be determined in favour of the appellant.
The respondent’s learned Counsel referred this Court to the state of the pleadings, the oral and documentary exhibits and the holding of the learned trial Judge to urge this Court to hold that all the issues argued by learned Counsel to the appellant should be resolved against him. Counsel submitted that the facts pleaded in the Amended Statement of Claim were not denied by the appellant, citing Sodipo vs. Ogidan (2008) 4 NWLR (Pt.1077) 342 at 346 -347. That the only defence raised by the appellant into trespassing in the subject matter in dispute, dispossessing and converting the respondent’s timber and other properties was that they derived authority of doing so through the Cross River Estate Ltd. and the Cross River State Privatization Council. Learned Counsel drew attention to the contents of Exhibits “A” and “B” tendered by the appellant read together with Section 128(1) of the Evidence Act, 2011 to urge this Court to hold that as parties had embodied their agreements into writing extrinsic evidence could not be admitted to add, vary, subtract or contradict the terms of the written instruments. Reliance was placed on U.T.B. (Nig.) Ltd. vs. Ajagbule (2006) 2 NWLR (pt.965) 447 at 453; Bungeus Governor, River state (2000) 12 NWLR (pt.995) 573 at 573. It was contended that Ekpiri-Iko forest was not listed in the assets/estates/lands acquired by the appellant from Cross River Estate Ltd. (CREL). Therefore CREL could not have given the appellant what is not hers, citing Owema Bank Plc vs. Olatunji (2002) 13 NWLR (Pt.781) 259 at 270.
In respect of whether Exhibit “C” was a lease or a license the learned Counsel urged this Court to hold that the argument was an academic exercise. Reference was made to the definition of the two terminologies in Blacks Law Dictionary, 6th edition, pages 889 and 919 respectively, citing Keyamo vs. Folorunsho (2011) 9 NWLR (Pt.1255) 209 at 213. It was contended that Exhibit C is not a registrable, citing Gbinijie vs. Odjie (2011) 4 NWLR (Pt.1236) 103 at 108. That Exhibit “C” was pleaded as an acknowledgment of the transaction between the respondent’s predecessors and Ekpiri-Iko Community. Learned Counsel’s contention is that general and special damages had been proved.
This prompted the appellant to file a Reply Brief on 4th December, 2012 in which it was urged on this Court to hold that if Exhibit “C” was tendered as evidence of purchase of the timber with Ekpiri Iko Community as argued by the learned Counsel to the respondent that will run counter to the holding of the learned trial Judge. Besides, the respondent had admitted in the pleadings that the land in dispute was located within Iwuru fallow land transferred by CREL to the Cross River Privatization Council to the appellant. Parties were bound by their pleadings, citing Baliol Nig. Ltd. vs. Navcon Nigeria Ltd. (2010) 16 NWLR (Pt.1220) 619 at 633 and Pada Chabusaya vs. Joe Anwasi (2010) 10 NWLR (Pt.1201) 163 at 181.
On the whole learned Counsel urged this Court to allow this appeal.
On the other hand the learned Counsel to the respondent urged that this appeal should be dismissed.
ISSUE ONE:
I shall commence by considering the effect of Exhibit “C” on the entire proceedings. In the course of trial the statement of claim was amended to reflect the names of the plaintiffs. The body of the pleaded facts remained the same. The agreement governing the relationship between the Chiefs of Ekpiri-Iko Community and the Late Boniface Nkemdilim and Ela Ogar reads as follows:
“This Agreement made this 1st day of March, 1997 Between the Chiefs of Ekpri-Iko Community in Biase Local Government Area, represented by Chief Samuel Adamben, Chief Ijenga Awuri and Chief Arorim Ayang (hereinafter referred to as the First Party, the expression where the con so admits includes their successors, assigns and subjects) the one part.
AND
MESSRS BONIFACE NKEMDILIM AND ELA OGAR (hereinafter referred to as the second party) the expression where the con so admits includes their successors and assign of the second part.
WHEREAS:
1. The First Party represent the people of Ekpri-Iko Community and have given the second party the right to exploit timbers at both sides and the centre of the V-Junction called Usor Iyuro Junction up to Inyang Ita River (hereafter referred to as the Forest).
2. The Second Party have furnished consideration as hereinafter mentioned.
THIS AGREEMENT NOW WITNESSES AS FOLLOWS:
1. That the First Party have agreed:
(a) To grant a concession to the second party to exploit the forest exclusively, by falling the trees and sawing timbers of same.
(b) To ensure that no timber dealer enters the forest without the consent of the second party.
(c) To provide owners conscience and permit and to ensure the safety of the second party throughout the period of the concession.
(d) To allow both the community and the second Party to mount road block to check the entering of in and out of the forest and to share whatever is realized therein into two equal parts.
2(a) That the Second Party have constructed the a bridge at cost of N500,000.00 (Five hundred thousand Naira) only over the Dubu River for the First Party as payment for the forest.
(b) The Second Party have supplied the items needed for the traditional sacrifices of the First party, which amongst others, includes two live goals and N2,000.00 cash.
(c) That the Second Party are given the mandate to exploit timbers for the period of ten years and that the first five years this agreement is subject to changes while at the end of ten years operation this theme of agreement terminates and elapses.
IN WITNESS whereof the said parties hereto have set their hands the day and year first above written.
SIGNED, by the within named representatives of the First Party.
Signed, 1/3/1997
CHIEF SAMUEL ADAMBEN

Signed, 1/3/1997
CHIEF IJENGA AWURI

Signed, 1/3/1997
CHIEF ARORIM AYANG

In the presence of Chief Vince Oka (Youth Leader)
Signature: Signed
Address: Ekpri Iko
Occupation:Farming
SIGNED, by the within named Second Party:

Signed, 1/3/1997
MR. BONIFACE NKEMDILIM

Signed, 1/3/1997
MR. ELE OGAR

In the presence of: MR. DENNIS OKENNA
Signature: Signed
Address: 17 Umu Oji Street, Al.
Occupation:Trading
The agreement was pleaded in paragraphs 3-6 of the Amended Statement of Claim as follows:
“3.The Ekpiri Iko community in Biase Local Government Area of Cross River State are the owners of the woodland area (forest) situated on both sides of the V-Junction called Usor-Uyoro Junction up to Inyang Ita River lying and situate at Ekpiri Iko Community which is the subject matter in dispute.
4. In 1997 the plaintiffs entered into a contract and Agreement with the aforesaid Ekpiri Iko Community by which the said community granted to the plaintiffs the exclusive right to exploit timbers in and over the subject matter of this action for an uninterrupted period of ten (10) years i.e between 1997-2007, the consideration which was the construction of the Community bridge over the Dugwu River on the only access road into the said forest. The said consideration which the plaintiffs furnished including the performance of other traditional rites for traditional sacrifices as required by the said community, the acknowledgment of same the said community accepted in the said contract document on the 1st of March, 1997. (“The said Agreement/Contract document shall be rely upon by the plaintiffs as evidence of acknowledgment of receipt or purchase receipt of the timbers’).
5. The Plaintiffs state that after the aforesaid agreement they commenced the exclusive harvesting of timber in the said area including the felling of trees therein and sawing same into timber and selling the processed timbers without any hindrance or disturbance from anybody from 1997 until 2004 (a period of 7 years) when the Defendant trespassed into the said area and interrupted the plaintiffs business therein.
6. The plaintiffs further state that by the terms of the said Agreement with the owners of the said community, they have unexpired 3 years to enjoy the fruit of the Agreement.”
The Agreement tendered at the trial by Boniface Nkemdilim (Pw1) before his demise clearly shows that Ekpiri Iko Community conferred on the respondent’s predecessors the right to, “…exploit timbers at both sides and the centre of the V-Junction called Usor Iyura Junction up to Inyang-Ita River (hereafter referred to as the Forest).” etc. The concession was for a period of ten (10) years commencing from 1st day of March, 1997. Paragraph 3 of the Amended Statement of Claim described where the forest is situate, “The Ekpiri-Iko Community in Biase Local Government Area of Cross River State are the owners of the Woodland Area (forest) situated on both sides of the V-Junction called Usor-Uyoro Junction up to Inyang Ita River lying and situate at Ekpiri-Iko Community which is the subject matter in dispute.” A combined reading of the covenants in Exhibit “C” and paragraph 3 of the Amended Statement of Claim will show that the respondent conceded ownership of the land on which they had to fell the timber for a period of ten years at valuable consideration to Ekpiri-Iko Community in Biase Local Government Area of Cross River State. To give effect to the terms of Exhibit “C” the respondent must enter into possession in order to exploit the timber in the forest. The respondent had been in possession of the land since 1st March, 1997. Exhibit “C” has described in vivid terms the location,and extent/boundaries of the land on which the forest is situate. One may then ask: Is Exhibit “C” a “Lease” or “license”
A “Lease” is “1. A contract by which a rightful possessor of real property conveys the right to use and occupy the property in exchange for consideration, usually rent. The lease term can be for life, for a fixed period, or for a period terminable at will. 2.Such a conveyance plus all covenants attached to it. 3. The written instrument memorializing such a conveyance and its contents. Also termed lease agreement; lease contract.
4.The piece of real property so conveyed. 5. A contract by which the rightful possessor or personal property conveys the right to use that property in exchange for consideration. “On the other hand a “License” is “1. A permission, usually revocable, to commit some act that would otherwise be unlawful especially, an agreement (not amounting to a lease or profit a prendre) that it is lawful for the licensee to enter the licensor’s land to do some act that would otherwise be illegal, such as hunting game… 2. The certificate or document evidencing such permission.” See Blacks Law Dictionary, 9th edition, page 1002.
In my humble view Exhibit “C” is a lease authorizing the respondent’s predecessors to enter the forest land of Ekpiri Iko Community to exclusively exploit timber, terminable at the end of ten year period. Exhibit “C” was subject to renewal after five years. The next question is whether Exhibit “C” is a registrable instrument.
Section 31 of the Land Instruments Registration Law Cap L.3 Laws of Akwa Ibom State, Vol.4, 2004 defines an “instrument” that should be registered as “…a document in the state whereby one party (hereafter called the grantor, confers, transfers, limits, or extinguishes in favour of another party (hereafter called the grantee) any right or title to or interest in land in the state and a certificate of purchase and a power of attorney under which any instrument may be executed, but not a will.” What the Chiefs of Ekpiri-Iko Community did in appending their signature to Exhibit “C” on 1st day of March, 1997 was to transfer, not their title or ownership but possession of the forest land including the timber therein to the respondent’s predecessors for a term of ten years. The community’s rights, possession and interest on the land would be temporarily extinguished for a period of ten years. The timber is an interest attached to the Community’s land in the State. The Law (supra) does not define what is “land in the State”. However, Section 62(1) of the Interpretation Law Cap.16 Law of Akwa Ibom State, 2004 page 10-17 defines “immovable property” or “lands”, to include “land and everything attached to the earth or permanently fastened to anything which is attached to the earth, and all chattels real, but not minerals.” Timber that is in a forest and is not yet cut forms part of what may be described as “immovable property” or “land” within Section 62(1) of the Interpretation Law (supra). In Erewa vs. Idehen (1971) 1 All NLR (Pt.1) 192, Fatayi-Williams, JSC held at page 202 in similar circumstances that:
“There is no doubt that the land is real property. The rubber trees, like timber and those crops other than annual crops which are part of the real property before severance, are also part of the real property, because they have, in effect, that quality of immobility which makes them akin to realty. In this connection, reference may be made to the following passage in Williams on the Law of Executors and Administrators,13th edition, volume 1 paragraph 539 at page 308:-
“Unless they have been severed, trees, and the fruit and produce of them as well as hedges, bushes, etc, from their intimate connection with the soil, follow the nature of their principal, and therefore, when the owner of the land dies, they devolve as real estate.”
For the above reasons, we are clearly of the view that the transaction regarding the rubber frees between Humphrey Erewa and Zacheus Erewa on one hand and the defendant/respondent on the other was in respect of real estate.”
In my humble opinion Exhibit “C” being in respect of the exploitation of timber on the communal lands of Ekpiri-Iko Community for ten years comes within the definition of the phrase “a document affecting land in the State… ” under Section 31 of the Land Instruments Registration Law read together with Section 62(1) of the Interpretation Law (supra) and also on the principle of Quic quid plantatun solo solo cedit which is still good law in Nigeria. See NEPA vs. Amodu (1976) U.I.L.R. (Pt.2) 255 at 263; Ezeani vs. Njidike (1965) NMLR 95; Otogbolu vs. Ukeluwa (1981) 6-7 SC 99; Okoiko vs. Esedalue (1974) 1 All NLR (Pt.1) 452 and Alao vs. Ajani (1989) 6 SCNJ (pt.2) 249 at 250.
Section 13 of the Land Instruments Registration Law Cap 1.3 (supra) provides as follows:
“No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in section l. provided that a memorandum given in respect of an equitable mortgage affecting land in the State executed before the 1st day of July, 1944, and not registered under this Law may be pleaded and shall not be inadmissible in evidence by reason only of not being so registered.”
I hold that Exhibit “C” being an instrument should have been registered. What then is the legal effect of non-registration of Exhibit “C” with the Land Registry under Section 1 of the Law (supra)? The answer lies in a plethora of judgments of the Supreme Court particularly Dr. Joseph C. Okoye vs. Dumez Nigeria Ltd. & 1 or. (1985) 6 SC 3 where Bello, JSC (as he then was) held at page 12 that:
“It is trite law that where a purchaser of land or a lease is in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchase money or the rent to the vendor or the lessor then in either case the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity.

A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase money or rent: Savage vs. Sarrough (1937) 13 NLR 141; Ogunbambi vs. Abowab (1951) 13 WACA 222; Fakoya vs. Shagamu (1966) 1 All NLR 74; Oni v. Arimoro (1973) 3 SC 163; Bucknor-Maclean vs. Inlaks (1980) 8-11 SC 1 and Obijuru vs. Ozims SC.48/1984 delivered on 4th April, 1985, unreported yet.
It follows from the foregoing that the 1st respondent’s lease under Exhibits “E” and “F” was as good as if the instruments had been registered.”
See also Obijanja vs. Nwoko (1974) 6 SC 69 at 77; Awaogba vs. Eze (1995) 1 SCNJ 157 at 168 and Ogunbami vs. Abowab 13 WACA 22.
Furthermore, at the time the appellants are said to have commenced trespass into the forest on 23rd day of September, 2004 the respondents predecessors still had unexpired three years terms to enjoy the exploitation of the forest. The appellant did not deny trespassing into the forest as pleaded by the respondent. They pleaded in their statement of defence as follows:
“3. The defendant deny paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the statement of claim and in response the defendant states as follows:
(i) That the Ekpiri-Iko community is one of the seven communities that borders the estates and forest land previously owned by CREL and now vested in the defendant. The other communities are Iko Akperem, Awai-Itukpa, Ifunkpa,Iwuru-Turukekpem (small Iwuru), Iwuru-Obiontan (big Iwuru) and Idoma. These communities speak the same language known as Ayo and share the same cultural affinity even though some of them are in Biase Local Government Area while others are in Akamkpa Local Government Area.
(ii) That each of these communities has portions of their ancestral forest inside the Estate/plantation prior to the acquisition of the said land by the State Government for palm and Rubber plantation development through the cross River Estates Limited (CREL). The defendant states that the Ekpiri-Iko community does not have the legal right to lease out any portion of the Estate/Forest land for concession to the plaintiff after the acquisition of same by the CREL. The defendant state that title in the said Estate was vested in CREL prior to acquisition by the Defendant.
(iii) The said Estate contained a large rubber plantation and some fallow lands. The portion of the forest wherein the plaintiff trespassed into is located right inside the said Iwuru fallow land at the Ekpiri-Iko axis of the Estates. A survey map showing entire land/Estate formerly owned by the Cross River Estates Limited (CREL) is hereby pleaded and shall be relied upon at the trial.
(iv) The defendant is the present owner in possession of the plantation/Estates and fallow land or forest which was formerly owned by the Cross River Estates Limited (CREL). The defendant bought the said plantation including all the developed and the fallow land known as the “Iwuru fallow land” from the Cross River State Government through the State Privatization Council.
(v) The defendant became vested with the title of and ownership of all the landed property together with the buildings, and structures, plantation and forest/fallow land and all other assets. A letter dated 21st September, 2004, issued by the Executive Secretary of the Cross River Privatization Council to the Defendant evidencing ownership and confirming that Iwuru fallow land is part of the CREL land acquired by the defendant is hereby pleaded and shall be founded upon.
(vi) The Defendant took possession of the said Rubber plantation and commenced operations since the 11th of April, 2003. By the express terms of the Agreement between the government and the defendant, dated 23rd September, 2004, the Privatization Council on behalf of the Cross River State Government represented and warranted to the Defendant that:
(i) CREL owned absolutely all the assets free and clear of any and all mortgages, liens charges debts and encumbrances.
(ii) CREL had not disposed of any part of the estate, nor granted any other concession or encumbrance in respect of any part of the forest or assets.
(iii) None of the assets is subject to and there is no agreement or commitment to give or create any option, lien, concession or encumbrance on the assets or the land.
(iv) There has been no exercise, purported exercise or claim for any charge, lien encumbrance or equity over any of the asset and there is no dispute, claim or charge directly or indirectly relating to any of the assets or sale thereof.
(v) There are no outstanding debts, fee, claims or charges or other rights by whatsoever name called that will result from third party or to CREL.
(vi) CREL has taken all necessary actions and obtained all consents, resolutions, authorizations and approvals required under the law to enter into this Agreement and to transfer all the assets and landed interest of CREL to the Defendant. The said Agreement is hereby pleaded and shall be relied upon at the trial.
(vii) The defendant state further that inside the fallow land and the undeveloped land, there exist a forest of many frees mostly hardwood like Ebony, Mahogany, “Opepe”, “Iroko’, “Achi”, etc. The defendant is setting up a wood factory inside the Calabar Free Trade Zone in Calabar and intends to exploit the timber inside the said forest for lumbering and logging business.
4. In further response to paragraphs 7,8, 9 and 10 of the statement of claim, the defendant states that around the month of August, 2004, the Defendant’s security team while on routine patrol around the plantation discovered that some unknown persons have trespass into some part of the fallow land at the Ekpiri-Iko axis and fell down many had woods and sawn same into different sizes of timber ready for evacuation. This was reported to management and the Defendant decided to beef up security patrol around the estate.
5. The Defendant states in further response to paragraphs I and 9 of the statement of claim that on the 1st day of October, 2004, the security team led by the Chief Security Officer (C.S.O) Mr. Mike Ikona in company of three mobile police officers caught the plaintiff’s workers loading some timber/wood into a lorry right inside the Defendant’s plantation at the Ekpiri-Iko axis of the fallow land. Upon inquiry the workers explained that they were acting on the plaintiff’s behalf.
6. The defendant denies that they used thugs or hoodlums in arresting the plaintiff’s workers in the forest. Further the Defendant denied that any of the plaintiff’s workers was beaten up by its security team on the 23rd of September, 2004. The Defendant states that the plaintiff did not have any farm equipments like sawing machine or tractors in the bush on that day and therefore none was damaged or seized by its security team.
7. The Defendant states further that the plaintiff’s workers did not have any house in the said bush and none was burnt by its security team on the 23rd September,2004.
8. Policemen, upon the report of the Defendant’s Chief Security Officer (CSO) intercepted, the lorry on 23rd September, 2004 and immediately took it with its contents to the Nigerian Police Station, Uyanga, Akamkpa Local Government Area of Cross River State. During police investigation, the 1st plaintiff confessed that the lorry was hired to evacuate the wood to Ariaria market in Aba, Abia State. The matter was later was later sent to the Anti-vice unit of the Nigerian Police Headquarters Zone 6 Calabar for further investigation. The 1st plaintiff illegally removed the said wood kept at Uyanga Police Station while investigation was still on.”
Exhibit “C” is authority that empowers the respondent to sue any trespasser for damages and to seek injunctive relief in relation to the unexpired terms of the agreement. Generally speaking trespass does not involve proof of title. See Owoni vs. Biriyah (1976) 6 SC 49 at 54-55; Balogun vs. Labiran (1988) 3 NWLR (Pt.80) 66 at 82. A person with a defective title but in defacto possession can maintain an action in trespass except against one with a better title. See Ikpang vs. Edoho (1978) 2 LRN 29 at 33; Adeshoye vs. Oshiwoniku 14 WACA 86 at 87 and Udeze vs. Chidebe (1990) 1 NWLR (Pt.1) 1 at 29. I therefore hold that the learned trial Judge did not misdirect himself when he held at page 87 lines 15-22 as follows.
“From my construction of Exhibit “C”, what was created between the Chiefs of Ekpiri-Iko Community and the claimant is a lease and not a license. It is uncautionable (sic) for the defendant to maintain that it is a license when the claimant never signed any agreement with the defendant. It is equally not permissive for the defendant to maintain that it was a license and not a lease, when the agreement between the Chiefs of Ekpiri-Iko Community was not in respect of ownership of Ekpiri-Iko forest, but for exploitation of only timber from the said forest.”
I resolve issue one against the appellant.
ISSUES TWO, THREE AND FOUR:
The questions in there issues are whether the learned trial Judge should not have expressed any adverse comments on Exhibit “A” without calling on Counsel or the parties to address him. Secondly, were Exhibits “A” to “F” properly evaluated? Exhibit “A” is a letter from the Chairman of Cross River State Privatization Council dated 21st September, 2004 to the appellant company indicating the assets of CREL that were transferred to the Cross River State Privatization Council. Notice was given to the appellant in paragraph 20 of the Amended Statement of Claim to produce the original during trial. The appellant did not do so. At the hearing a copy of the letter was tendered through Late Boniface Nkemdilim and marked Exhibit “A”. Exhibit “A” reads as follows:
“CROSS RIVER STATE PRIVATIZATION COUNCIL
c/o Bureau for State Enterprises
Ministry of Trade and Investment
P.M.8.1069, Calabar
Cross River State
21st September, 2004.
CRS/COPSOE/EP/1/Vol.iv/600
The Chairman,
Eng. Huat Rubber Industries,
EPF/SUB ZONE,
No. 5 Balogun Street,
(Former Billingsway)
Alausa-Ikeja,
Lagos.
RE: EVIDENCE OF OWNERSHIP OF ESTATES
UNDER CROSS RIVER ESTATES LIMITED (CREL)
I wish to refer to your letter 20th September, 2004 on the above subject matter and to confirm that Iwuru Fallow Land is part of the land mass of the erstwhile Cross River Estate Limited ceded to ENG.HUAT.
2. I also wish to confirm that ENG. HUAT Rubber is also the new owner of the following plantations:
(1) CREL Headquarters
(2) Akirindam
(3) Boam
(4) Uyanga
(5) Uwet
3. This is in recognition of the fact that a formal agreement between the Privatization Council and ENG. HUAT Rubber is yet to be executed.
4. We hope this will provide comfort to the visiting Chinese delegation to the Cross River State.
Yours Faithfully,
For: CRS PRIVATIZATION COUNCIL
Signed
ETA EYO USO
PERM. SECT./EXECUTTVE SECRETARY (CRSPC).”
In his evidence in Chief PW1 stated thus:
“…It is true and I know that the defendant Eng. Huat Rubber EPF acquired CREL (Cross River Estates Limited). Before its acquisition, CREL had no plantation or land in Ekpiri Iko before it transferred its assets to the defendant, the privatization council never transferred any land from Ekpiri Iko to CREL or Eng. Huat Rubber EPF, during the privatization process. I know that CREL plantation does not extend to Ekpiri Iko Community. The tatter (sic) written by Cross River Privatization Council to Eng. Huat Rubber EPF indicating the villages where their properties are situated, did not include Ekpiri Iko Community. Ekpiri Iko Community is not in the agreement between CREL and Eng. Huat Rubber EPF. I gave the defendant notice to produce the said letter, which the defendant has also pleaded and said he will be relying on tenders it as an exhibit. No objection.”
The above evidence is in material conflict with the statement of defence/counter-claim which reads as follows:
“3. The defendant deny paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the statement of claim and in response the defendant states as follows:-
(i) That the Ekpiri-Iko Community is one of the seven communities that borders the estates and forest land previously owned by CREL and now vested in the defendant. The other communities are Iko Akperem, Awai-Itukpa, Ifunkpa, Iwuru-Turukekpem (small Iwuru), Iwuru-Obiontan (big Iwuru) and Idoma. These communities speak the same language known as Ayo and share the same cultural affinity even though some of them are in Biase Local Government Area while others are in Akamkpa Local Government Area.
(ii) That each of these communities has portions of their ancestral forest inside the Estate/plantation prior to the acquisition of the said land by the state Government for palm and Rubber plantation development through the Cross River Estates Limited (CREL). The defendant states that the Ekpiri-Iko community does not have the legal right to lease out any portion of the Estate/Forest land for concession to the plaintiff after the acquisition of same by the CREL. The defendant state that title in the said Estate was vested in CREL prior to acquisition by the Defendant.
(iii) The said Estate contained a large rubber plantation and some fallow lands. The portion of the forest wherein the plaintiff trespassed into is located right inside the said Iwuru fallow land at the Ekpiri-Iko axis of the Estates. A survey map showing entire land/Estate formerly owned by the Cross River Estates Limited (CREL) is hereby pleaded and shall be relied upon at the trial.
(iv) The defendant is the present owner in possession of the plantation/Estates and fallow land or forest which was formerly owned by the Cross River Estates Limited (CREL). The defendant bought the said plantation including all the developed and the fallow land known as the “Iwuru fallow land” from the cross River State Government through the State Privatization Council.
(v) The defendant became vested with the title of and ownership of all the landed property together with the buildings, and structures, plantation and forest/fallow land and all other assets. A letter dated 21st September, 2004, issued by the Executive secretary of the Cross River Privatization council to the Defendant evidencing ownership and confirming that Iwuru fallow land is part of the CREL land acquired by the defendant is hereby pleaded and shall be founded upon.
(vi) The Defendant took possession of the said Rubber plantation and commenced operations since the 10th of April, 2009. By the express terms of the Agreement between the government and the defendant, dated 23rd September, 2004, the privatization council on behalf of the Cross River State Government represented and warranted to the Defendant that:
(i) CREL owned absolutely all the assets free and clear of any and all mortgages, liens charges debts and encumbrances.
(ii) CREL had not disposed of any part of the estate, nor granted any other concession or encumbrance in respect of any part of the forest or assets.
(iii) None of the assets is subject to and there is no agreement or commitment to give or create any option, lien, concession encumbrance on the assets or the land.
(iv) There has been no exercise, purported exercise or claim for any charge, lien encumbrance or equity over any of the asset and there is no dispute, claim or charge directly or indirectly relating to any of the assets or sale thereof.
(v) There are no outstanding debts, fee, claims or charges or other rights by whatsoever name called that will result from third party or to CREL.
(vi) CREL has taken all necessary actions and obtained all consents, resolutions, authorizations and approvals required under the law to enter into this Agreement and to transfer all the assets and landed interest of CREL to the Defendant. The said Agreement is hereby pleaded and shall be relied upon at the trial.
(vii) The defendant state further that inside the fallow land and the undeveloped land, there exist a forest of many trees mostly hardwood like Ebony, Mahogany, “Opepe”, “Iroko”, “Achi”, etc. The defendant is setting up a wood factory inside the Calabar Free Trade Zone in Calabar and intends to exploit the timber inside the said forest for lumbering and logging business. ”
The above pleadings are also in material conflict with the evidence of Mike Ikona the appellant’s Chief Security Officer who testified as Dw1 and adopted Exhibit “A”. The witness testified on 28th July, 2009. Under cross-examination Dw1 gave evidence as follows:
“The plantations/land now owned by Eng. Huat, were formerly owned by CREL. I do not know when CREL acquired the plantation/land. I know the plantation acquired by Eng. Huat from CREL are situated. The plantations are bordered by seven communities, namely: (1) Small lwuru (2) Big Iwuru (s) Ekpiri Iko (4) Iko Ekpirem (5) Idoma (6) Owai and (7) Ifunkpa. It is true that Eng. Huat acquired CREL through CRS Privatization programme. It is also true that the CRS Privatization Council issued the defendant a letter dated 21st September, 2004. In that letter, the CRS Privatization council stated the plantation formerly owned by CREL, which the defendant acquired. This is the letter (Exhibit “A”) further identified by DW1. Exhibit “A”, the plantations are (1) Iwuru (2) CREL Heaquarters (3) Akiridam (4) Boam (5) Uyanya and (7) Uwet.
Ikpri Iko is mentioned in Exhibit “A”. Ekpiri Iko is a different community from Iwuru. This is Exhibit “B”. It contains the names of Estates/plantations acquired by the defendant from CREL. It is an agreement. It does not mention the name of Ekpiri Iko. Iwuru means Ekpiri Iko. Iwuru means fallow land. It is true that the Cross River State Privatization Council issued us (the defendant) a survey plan, (Exhibit “E”) showing the lands acquired by us from CREL, verged Red. Ekpiri Iko is written inside the map (Exhibit “E”) I still maintain that Ekpiri Iko is inside and not outside the map…”
See page 67 lines 28 to page 68 lines 1-22 of the printed record.
Exhibit “A” did not mention Ekpiri-Iko forest lands. PW1 testified at page 51 lines 24-26 of the printed record as follows:
‘Ekpiri-Iko community and Uyanga Community are not close neighbours at all. There are far apart.”
I wish to make the following observations starting with the pleadings of the appellant and the respondent. While the respondent’s pleading and oral evidence by Pw1 was emphatic that the land covered by Exhibit “C” did not fall within the lands originally owned by CREL but transferred to Cross River State Privatization. Council and sold to the appellant as evidenced in Exhibits “A” and “B””. DW1 testified that the forest was right inside Exhibit “A”. This is in material conflict with Exhibit “A” and paragraph 3(i) of the Statement of Defence/Counter Claim which pleaded that “…Ekpiri Iko Community is one of the seven communities that borders the estates and forest land previously owned by CREL and now vested in the defendant…” It one country, land or area borders another, it is next to it and they share common border/boundaries. They will be two distinct lands having a common border or boundary. In such a situation the lands would be contiguous namely, next to each other. Where parties have lands contiguous or next to another, the features along the common boundary become material in questions of trespass. See Anyanwu vs. Mbara (1992) 6 SCNJ 22; Emeregie vs. Idugiemwanye (1985) 6 SC 150/173. In this case paragraph 3(i) of the statement of defence/counter-claim pleads that the land covered by Exhibit “C” borders the estates and forest land previously owned by CREL. The onus is on the appellant to show how the land is “now vested in the defendant” as pleaded in paragraph 3(i) of the statement of claim/counterclaim from 10th April, 2003 when Cross River State Privatization Council sold it them. There is no such evidence.
Each of these seven communities is said to have their ancestral forests/plantations. According to Dw1 Ekpiri-Iko and Iwuru are separate and distinct communities. The witness admitted that Exhibit “A” did not mention Ekpiri Iko Community as those forest lands acquired by CREL and sold by the Cross River State Privatization Council to the appellant. But the same witness testified that Ekpiri Iko Community is the same as Iwuru Community.
How can that be? Exhibit “B” of 23rd September, 2004 is the agreement between the Cross River State Privatization Council transferring the assets of CREL to the appellant. DW1 also adopted the exhibit in his evidence in-chief. Under cross-examination the witness admitted that Exhibit “B” does not mention the name of Ekpiri-Iko, it cannot be said that the evidence of Dw1 supports the statement of defence/counterclaim. The forest land covered by Exhibit “C” cannot be inside Exhibit “A” nor the survey plan (Exhibit “E”) issued by the Cross River State Privatization Council. This is a case of the statement of defence/counter-claim being in radical and material conflict with the oral testimony of Dw1. Parties are bound by their pleadings. They cannot lead oral evidence to contradict their pleadings. In my humble view the oral and documentary evidence tendered by the appellant in the Court below constitutes a total repudiation of their pleadings. In Adebayo vs. Ighodalo (1996) 5 SCNJ 1 at page 31 lines 26-35, Onu, JSC held in that case that:
“…Such conflicting statements that the plaintiff allowed to be perpetuated in this case cannot be both true but could both be false.”
It is not the duty of an Appeal Court to resolve conflicts in the pleadings. See Okoye vs. Okpajie (1972) 6 SC 176 at 187-188. Learned trial Judge would be right in such circumstances to attach no weight to the pleadings, the oral and documentary evidence as it is not within his province to pick and choose which to believe or not. This was put by the Supreme Court in Emegokwe vs. Okadigbo (1973) 1 All NLR (Pt.1) 379 per Fatayi Williams, JSC (as he then was) at page 382 to wit:
“It is trite law, and we have repeated it on many occasions that parties are bound by their pleadings and that any evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the Court.”
The learned trial Judge was faced with a conflicting statement of defence documentary and oral evidence. The oral testimony of the appellant and the respondent was also in material conflict. Each party tendered documentary evidence to support their respective claims. The duty of the learned trial Judge was to use the documentary exhibits to evaluate the pleadings, the oral and documentary evidence at the trial. See Fashanu vs. Adekoya (1974) 1 All NLR (Pt.1) 35 at 41; Olujinle vs. Adeagbo (1988) 2 NWLR (Pt.75) 238 at 253; Kindey vs. Milad (1988) 2 NWLR (Pt.77) 445 at 473. In Oscar H. Reynard vs. William P. Allan (1934) 2 WACA 52, Deane, C. J. stated at page 53 that:
“And when as in this case the decision rests not only on the comparative truthfulness of the statements made by witnesses, but on its probability, and on the correctness of the conclusions drawn from their evidence by the learned trial Judge, and above all on the construction put by him on what he describes in his judgment as “a mass of documentary evidence” there is an ample field, a part from that of the credibility of witnesses, in which this Court can exercise an unfettered judgment in coming to the conclusion whether the decision was right or wrong, and if on surveying this field it in fact appears that the probabilities are very strongly on the side of the plaintiff, and that the documentary evidence also is overwhelming in his favour, and if in addition the difficulties raised by the learned Judge against accepting plaintiffs story are capable of a reasonable solution, as they see/n to me to be, it will, I take it, be the duty of this Court to set aside the judgment of the trial Judge and enter judgment for the plaintiff.”
The duty of the learned trial Judge is to evaluate not only the pleadings, the oral testimonies of the witnesses and the documentary exhibits in order to determine the weight to attach to the entire evidence adduced by the parties. This is borne out in the judgment of the Court of Appeal, Jos Division in Tangale Traditional Council vs. Alhaji Alhassan Mohammed Fawu & 1 Or. (2002) FWLR (Pt.117) 1137 where a similar argument was canvassed by the learned silk. At page 1164 paragraphs “B” – “E” to wit:
“…in the case on hand what the learned Judge did was to examine the document and comment on her observations, an act which the law permits her to do. It is trite that documents placed before a Court of law are for the purpose of examination and evaluation, and it is the duty of the Judge to ensure that such documents are considered in the interest of justice, for such documents are not tendered just for the fun of it. Documentary evidence must also be evaluated and in the course of evaluation a Judge is expected to closely examine the document and comment on it.
I fail to see that the Judge went beyond what was expected of her in evaluating the evidence before her, as is manifested in her finding. I find it inconceivable that she went on a voyage of discovery. As I have said earlier on the finding of the learned Judge on Exhibit “Q1″ was not attributed solely to the non-production of its original copy, but on various abnormalities discerned from the document itself.”
See also Ogun vs. Asemah (2002) FWLR (pt.128) 1328; S.F.F. Ltd. vs. S.G.B. (Nig.) Ltd. (2003) FWLR (Pt.186) 693 at 702 paragraph “H” to page 703 paragraphs “A”-“C”.
In Omega Bank Nigeria Plc vs. O.B.C. Ltd. (2005) 1 SCNJ 150, Edozie, JSC held at page 179 that:
“lt ought to be borne in mind that although a document may be admissible in evidence under the provisions of Evidence Act, the weight to be attached to its content is another matter, for every piece of evidence that has been admitted in the course of the proceedings is subject to be tested for credibility, weight or cogency by the trial court before it becomes acceptable documentary evidence: See Ayeni vs. Dada (1978) 3 SC 35 at 61.

Furthermore, where a document is pleaded to establish a particular fact, it can only be used to establish that fact and cannot be used to prove another fact which is not an issue in the pleadings: Onwunmere vs. Agwunede (1987) 3 NWLR (Pt.62) 673 at 681-682.”
The onus is on the appellant to show how and why the decision of the learned trial Judge was wrong. See Fuad Gabriel Noujaim vs. Rashid Aly 14 WACA 400.

In Onowan & Anor vs. Iserhien (1976) 1 NMLR 263, Irikefe, JSC(as he then was) held at page 265 -266 that:
“We have stated times without number that it is not one of the functions of this Court, as indeed of any appellate court, to substitute its own views of the evidence for those of the court of trial, which court is better equipped to deal with these matters.
We would only interfere with a decision based on matters of fact when it is clear that the same is perverse or not the result of a proper exercise of judicial discretion. See Kodilinye vs. Odu (1935) 2 WACA 336; Okoye v. Ejiefo (1934) 2 WACA 130; Kuma vs. Kuma (1996) 5 Eyiyola (1968) NMLR 92.”
I see no merit in issues two, three and four which I resolve against the appellant.
ISSUE FIVE:
The complaint in issue five is that the learned trial Judge shifted the burden of proving that the respondent’s predecessors had been registered or had a permit/license from the Cross River State Forestry Commission to exploit timber in Ekpiri-Iko forest to the appellant. The answer is simple: The pleadings, the oral and documentary evidence all shows that Exhibit “C” paraded by the appellant is not within Exhibits “A”, “B”, and “E”. Paragraph 1 of the statement of Defence/Counter-Claim pleads as follows:
“7. The defendant deny paragraph 1 of the statement of claim and shall put the plaintiffs to the strict proof thereof at the trial. The defendant states that the plaintiffs do not have a valid permit or license from the State Forestry Commission, neither are they registered with the said Commission for purpose of sourcing for timber and logging wood inside the forest or plantation of the defendant which was formerly owned by the Cross River State Estates Limited (CREL).”
Paragraph 1 of the Reply/Defence to the Counter-claim pleads as follows:
“1. As to paragraph 1 of the defence, the plaintiffs say that the plaintiffs have valid permit from the State Forestry Commission to hack wood inside the forestry but the defendant and/or CREL has only a plantation and no timber forest.”
The fact is that the agreement authorizing the respondent’s predecessors to exploit timber in Ekpiri Iko Communal land (Exhibit “C”) had a commencement date from 1st March, 1997. The unchallenged evidence is that exploitation of timber in the forest continued until 23rd day of September, 2004 when the appellant’s Chief Security Officer in company of thugs and hoodlums supported by Mobile Police forcibly entered into the forest to interrupt the respondent’s operation. Within the time of exploiting the timber in these Communal lands who should have complained that the community had no legal right to lease the forest to the respondent’s predecessors or that the respondent’s predecessors had no permit to exploit timber in that forest?
The logical answer is not the appellant.
Vincent Okah (PW2) is a native of Ekpiri-Iko village. He testified that where the appellant was carrying out its operations was within Uyanga forest in Akamkpa Local Government Area. Exhibit “C” states categorically that the land is in Biase Local Government Area of Cross River State. The evidence of Dw1 shows he resides at the appellant’s Executive Headquarters, Uyanga, in Akamkpa Local Government. I hold that the appellant was a meddlesome interloper; a busybody in the affairs of the respondent. The other body or authority to demand a permit or license from the respondent’s predecessors was the Commissioner for the time being in charge of Agriculture/Forestry Affairs in Cross River State. See Section 50 of the Forest Law Cap F.S Laws of Cross River State, vol.4, 2004 defining who is a “Commissioner”,
The law recognizes the fact that the Commissioner may declare certain lands as “forest reserves” which term “means an area constituted or deemed to have been forest reserve under this Law which shall not have cease d to be forest reserve under any enactment.” “Command lands” mean “lands in Cross River State at the disposal of a community or of any chief on behalf of the community.” A “Community” “means any group of persons occupying any lands in accordance with the provisions of the Local Government Law.” In other words, the Cross River State Government recognizes the rights of Chiefs to own and dispose commands lands or to do so on behalf of their communities. What is forbidden or prohibited is the exploitation without license or permit of reserved lands/forests. The Law (supra) further defines “timber” to include “all trees, whether standing, fallen, or felled, stumps of frees and all wood, whether or not cut up or fashioned or hollowed out for any purpose.” And “To take timber” includes “to fell, lop or girdle trees or to carry away any timber from the lands upon which the trees have fatten or been felled, whether the trees have been felled by cutting or by removing the soil from the roots or by any other method or combination of methods.” See Section 50 of the Forest Law (supra) for all these definitions.
The sum total of all these definitions is that Exhibit “C” of 1st March, 1997 constitutes not only a valid lease but a permit for the respondent’s predecessors to exploit timber to the exclusion of any other authority, person or body in Ekpiri Iko communal lands/forests as permitted by the Chiefs of that community. The learned authors of Blacks Law Dictionary, 9th edition, page 1255 define the word “permit” as “A certificate evidencing permission; a license…” Therefore as far as the land are held by the Chiefs or a community the required license or permit to exploit forest produce on such lands is the agreement/lease which the parties append their signatures to Exhibit “C”. The onus of proving otherwise is on the appellant.
The burden of proving that Exhibit “C” conferred no permit on the respondent’s predecessors to exploit timber in Ekpiri-Iko forest land or that the lands/forest covered by Exhibit “C” come within lands reserved by the government of Cross River State is on the appellant. That burden has not been discharged. I endorse the holding by the learned trial Judge at page 84 lines 20 to page g6 lines 1-2 to wit:
“The claimant has on the other hand tendered Exhibit “C” which is the Agreement between him and the Chiefs of Ekpiri-Iko Community, for the purpose of the claimant exploiting timber for a period of ten years, commencing from 1st March, 1997, at both sides and the centre of the V-Junction called Usor Iyura Junction, up to Inyang Ita River, in Ekpiri-Iko.
During his testimony, original claimant Boniface Nkemdilim, stated in his evidence that he contacted the elders of Ekpiri-Iko Community, who negotiated and gave him terms for leasing out their forest land to him. That Ekpiri-Iko forest is not one of the forest land acquired by the defendant. That it is not part of Iwuru forest/fallow land. That it is distinct from the defendanf’s land.
He equally stated that he complied with all the conditions given to him by the Chiefs of Ekpiri-Iko Community before they signed the agreement Exhibit “C”. He listed some of the conditions as:
(1) Building a bridge at the cost of N500,000.00 only over the Dubu River for Ekpiri-Iko Community.
(2) Provisions of N2,000.00 and two live goats for offering of sacrifices as required by the custom of Ekpiri-Iko Community.
(3) Mounting of Road block to check movement in and out of the forest and to share the timber exploited in equal parts between the claimant and the community.
The claimant (PW1) in addition to his own evidence, called the PW2 – Vincent Oka, whose testimony did not only corroborate the evidence of Pw1, but is of credible value in that he was a witness to the said agreement.
I place full weight on the evidence of the Pw1 and Pw2 in that their evidence before this court was clear, cogent, consistent and corroborated and has not been discredited or negatived by the Defendant, through cross examination. Accordingly, issue one is hereby resolved in favour of the claimant, against the defendant.”
These findings or holdings are unimpeachable. I resolve issue five against the appellant.
ISSUE SIX:
The complaint under issue six is that the learned trial Judge should not have held that reliefs (vi), (vii), (viii), (ix) and (x) in paragraph 19 of the Amended Statement of Claim were made out by credible and cogent evidence by the award of N500,000.00 as general damages in favour of the respondent.
Paragraphs 9-11 of the Amended Statement of Claim plead as follows:
“9′ The defendant in furtherance of its act of trespass, arranged with policemen attached Police to the Zone 6 of Headquarters in Calabar arrested the 1st plaintiff, whisked him away to Calabar and thereafter detained him after extorting very huge amount of money from the 1st plaintiff.
10. The plaintiff avers at the time the Defendant did the act contained in paragraph 8 and 9 above the plaintiffs had already sawn the following number of wood with the understated various dimension and which said wood were in the bush before the plaintiffs were driven away by the defendant and without access to the wood. The said sawn woods are as follows:
(a) l0,0OO pcs of 2x12x12
(b) 20,000 pcs of 3x3x12
(c) 25,000 pcs of 2x4x12
(d) 15,000 pcs of 2x3x12
(e) 12,500 pcs of 4x4x12
11. The plaintiffs states that the prevailing market rates for the various dimensions of timber or planks are as follow:
(a) 2x12x12 dimensions of planks cost = N1,800 per unit.
(b) 3x3x12 dimensions of planks cost = N600 per unit.
(c) 2x4x12 dimensions of planks cost – N400 per unit.
(d) 2x3x12 dimensions of planks cost = N3 00 per unit.
(e) 4x4x12 dimensions of planks cost = N700 per unit.
“4. In further response to paragraphs 7, 8, 9 and 10 of the statement of claim, the defendant states that around the month of August, 2004, the Defendant’s security team while on routine patrol around the plantation discovered that some unknown persons have trespass info some part of the fallow land at the Ekpiri-Iko axis and fell down many had woods and sawn same into different sizes of timber ready for evacuation. This was reported to management and the Defendant decided to beef up security patrol around the estate.
5. The Defendant states in further response to paragraphs 8 and 9 of the statement of claim that on the 1st day of October, 2004, the Security team led by the Chief Security Officer (C.S.O) Mr. Mike Ikona in company of three mobile police officers caught the plaintiffs workers loading some timber/wood into a lorry right inside the Defendant’s plantation at the Ekpiri-Iko axis of the fallow land. Upon inquiry the workers explained that they were acting on the plaintiff’s behalf.
6. The defendant denies that they used thugs or hoodlums in arresting the plaintiff’s workers in the forest. Further the Defendant denied that any of the plaintiff’s workers was beaten up by its security team on the 23rd of September, 2004. The Defendant states that the plaintiff did not have any farm equipments like sawing machine or tractors in the bush on that day and therefore none was damaged or seized by its security team.
7. The Defendant states further that the plaintiff’s workers did not have any house in the said bush and none was burnt by its security team on the 23rd September, 2004.
8. Policemen, upon the report of the Defendant’s Chief Security Officer (CSO) intercepted, the lorry on 23rd September, 2004 and immediately took it with its contents to the Nigerian Police Station, Uyanga, Akamkpa Local Government Area of Cross River State. During police investigation, the 1st plaintiff confessed that the lorry was hired to evacuate the wood to Ariaria market in Aba, Abia State. The matter was later sent to the Anti-vice unit of the Nigerian Police Headquarters Zone 6 Calabar for further investigation. The 1st plaintiff illegally removed the said wood kept at Uyanga Police Station while investigation was still on.”
An examination of the respondent’s pleading will show that the timber and their value was pleaded, particularized and claimed as special damages; they were thus particularized as required by law.
In Ogbechie vs. Onochie (1988) 1 NWLR (pt.70) 370 the Supreme Court held that it is improper to award special damages for destruction of economic trees whose names, nature and economic values are not pleaded and proved at the trial. In this case the respondent pleaded special and general damages, suffered as a result of the wrongful acts of the appellant. The appellant did not deny these facts. This is a situation where judgment could have been entered in favour of the respondent even on the pleadings. In John Mills vs. Franklin Awoonor (1940) 6 WACA 144 the West African Court of Appeal at pages 145; Attorney-General of the Federation vs. Sode (1990) 3 SCNJ 1 at 37; and Egbe vs. Alhaji (1990) 3 SCNJ 41. This is so because the appellant counter-claimed in respect of the same timber as follows:
“3. The Defendant sent the security team entire round the area where the plaintiffs’ timber inside the defendant’s plantation on the 3rd August, 2004 and it was discovered to the chagrin of the of the Defendant that the plaintiffs have already sawn the following number of planks of various dimensions:
(a) 10,000 pcs of 2x12x12
(b) 20,000 pcs of 3x3x12
(c) 25,000 pcs of 2x4x12
(d) 15,000 pcs of 2x3x12
(e) 12,000 pcs of 4x4x12
4. The Defendant states that the prevailing market rafes for the various dimensions of timber or planks are as follows;
(a) 2x12x12 dimensions of planks cost = N1,8000 per unit.
(b) 3x3x12 dimensions of pranks cost = N600 per unit.
(c) 2x4x12 dimensions of planks cost = N400 per unit.
(d) 2x3xl2 dimensions of planks cost = N300 per unit.
(e) 4x4xl2 dimensions of planks cost = N700 per unit.
By reason of the foregoing paragraphs the Defendant/counter-claimant has suffered loss and damages.
(i) The Market value of 10,000 pcs of 2x12x12 dimension of planks at the current rate of N1,800 per unit N18,000,000.00
(ii) The Market value of 20,000 pcs of 3x3x12 dimension of planks at the cost of N600 per unit N12,000,000.00.
(iii) The market value of 25,000 pcs of 2x4x12 dimension of planks at the cost of N400 per unit N10,000,000.00.
(iv) The market value of 15,000 pcs of 4x4x12 dimension of planks at the cost of N700 per unit N10,500,000.00
(x) The market value of 12,5000 pcs of 2x3x12 dimension of pranks at the cost of N300 per unit N3,750,000.00.”
The above pleadings in the statement of claim filed by the respondent also has support in the oral evidence of Pw1 at page 42 lines 18 to page 43 lines 1-18 of the printed record as follows:
“The agreement was to commence from 1st March, 1997 to 2007. On the date of commencement of the Agreement, we took over the exclusive harvest and exploitation of the forest including feeling of trees, sawing them into timbers, evacuation of the sawn timbers to the timber market for sale. The defendant Co. interrupted our activities at Ekpiri Iko forest on the 23rd day of September, 2004. Before the defendant Co. interrupted our operations, nobody disturbed us neither the Court nor CREL disturbed us. The defendant unlawfully and forcefully entered my timber farm with six thugs and hoodlums, three armed mobile policemen and the Chief Security Officer of Eng. Huat Rubber EPF (Mr. Michael Ikonna). They confronted my farm workers beat them mercilessly and wounded some of them, who were later treated. They seized the farm matchets from my workers and used the machetes to inflict numerous cuts on the drum and Jerry cans, containing fuel and oil, and poured the contents away. They also used some of the fuel to burn the farm houses in the farm. They damaged my farm equipment including: sawing Eigine. After the whole destruction in my timber farm they order my workers out of the timber farm. Right from that day, things fall apart. They seized my one Lorry road or timber and converted it after the seizure. They mobilized three tractors and evacuated my wood which is six and half trip to their headquarters. Before the defendant interrupted my operations, I had sawn wood into many dimensions of rotting in the pranks, which is now forest. Some are decayed unacceptable in the timber market. This is so because / had no access to my timber farm again. My sawn timbers are of the following dimensions;
(a) 10,000 pieces of 2xl2x12
(b) 20,000 pieces of 3x3x12
(c) 25,000 pieces of 2x4x12
(d) 12,500 pieces of 4x4x12
(e) 15,000 pieces of 2x3xl2
Their market prices are:
(a) 2x12x12 at N1,800 per unit
(b) 3x3x12 at N600 per unit.
(c) 2x4x12 at N400 per unit.
(d) 4x4x12 at N700 per unit.
(e) 2x3x12 at N300 per unit.
The defendant is the one now exploiting timber in that forest.”
The evidence was given on 2nd August, 2007. On the next adjourned day being 9th August, 2007 PW1 testified as follows:
“Cont. of Hearing with PW1: The PW is recalled S/B and states further in English. The damages I suffered as a result of the defendant’s interference are:
(1) I suffered the loss of the living houses of my workers in the farm valued at N800,000.
(2) I suffered damages caused to my tractor by the defendants, estimated at above N10,000,000.
(3) I suffered damage of my farm equipment such as engines, jack and come along jack, valued N1,000,000.
(4) I suffered loss of seized and converted timber/valued at N1,300,000.
(5) I suffered loss of my monthly profit earnings and from the sale of timber at a monthly value of N2,000,000 per month, from October, 2004 to February, 2007 when the contract ought to terminate the total value of money lost for this period is N58,000,000.
(6) I suffered the loss of numerous dimensions of timber which were produced before the defendant’s interference. There are:
(i) 10,000 pcs of 2xl2x12 at N1,800 per unit valued at Nl8,000,000.00.
(ii) 20,000 pcs of 3x3x12 at N600 per unit, valued at N12,000,000.
(iii) 25,000 pcs of 2x4x12 at N400 per unit valued at Nl0,000,000.
(iv) 12,500 pcs of 4x4x12 at N700 per unit, valued N8,750,000.
(v) 15,000 pcs of 2x3x12 at N300 per unit, valued at N4,500,000.
The total sum of the special damages I am claiming is N124,350,000.”
See page 44 lines 12 to page 45 lines 1-12 of the printed record.
At page 49 lines 19-24 of the printed record Pw1 further gave evidence as follows.
“All the equipment I used in that forest farm, belongs to me except one tractor which I hired. I have receipts for all my equipment and I can produce them if demanded. I am a registered permitee. The forestry commission is proud of me. So I am registered personally with the Cross River State Forestry Commission…”
Learned Counsel to the appellant never challenged disparaged or discredited the testimonies of Pw1 regarding the items, quantity or the value placed on these items. The law does not lay down the minimum measure of evidence or any category of evidence to prove special damages – See Dumez (Nig.) Ltd. vs. Ogboli (1972) l All NLR (Pt.1) 246 at 250; Nwakwere vs. Adewunmi (1962) WRNLR 298 at 302 where damages are not challenged, minimum proof is required. See Onwuka vs. Omogui (1992) 3 SCNJ 98 at 119; Imana vs. Robinson (1979) 34 SC 1 at 23.
PW1 was in expert in his field. He had been exploiting the forest products since 1st March, 1997 His evidence as to the cost of each item seized or damaged remained unchallenged. In Seismograph Service Ltd. vs. Onokpasa (1972) 1 All NLR 343 the Supreme Court gave indications as to how unchallenged oral evidence of an expert should be treated by learned trial Judges. At page 354 their Lordships held that:
“We are of the view, therefore, that if the trial Judge had applied the correct test, he would have come to the conclusion that the only expert opinions before him were those of the defendant’s experts, and unless for good reasons otherwise should have accepted them.”
Where a witness has prepared an itemized list showing how he arrived at the estimate of what he claim but these remained unchallenged, nor did the defence adduce contradictory evidence, the Supreme Court set out what should happen in Obanor vs. Obanor (1976) 6 ECSLR 320 per Madarikan, JSC at page 323:
“We think there is great force in this submission. An important feature of Mr. Talabi’s evidence was that he produced in Court an itemized list (Exhibit “R”) showing how he arrived at the estimate for replacement of the demolished building. Although Exhibit “R” is quite detailed, no attempt was made by the defence to either challenge the items appearing on Exhibit “R” or to discredit the witness under cross-examination. The defence called no evidence to contradict Mr. Talabi. That was the totality of the evidence on this point. It is cogent, uncontradicted, detailed and unchallenged. We mean no disrespect when we say that we fail to see any justification for the view taken by the trial Judge that he was unable to accept the figure given by Mr. Talabi. We are firmly of the view that if the evidence had received the treatment it deserved in the hands of the trial Judge, he would have had no difficulty in coming to the conclusion that the plaintiff had proved his entitlement to the award of N6,899.10 special damages claimed.”
In this appeal, how the special damages were calculated and arrived at item by item was not discredited by the appellant’s learned Counsel. See Imana vs. Robinson (1979) 3-4 SC 1 at 23; Seismograph Service Ltd. vs. Akporuovo (1974) 1 All NLR (Pt.1) 104; Boshali vs. Allied Commercial Exporters Ltd. (1961) 1 All NLR 917.
Pw1 offered to produce receipts to support his claims. The learned Counsel to the appellant did not see the need for receipts hence he did not demand they should be produced and tendered as exhibits. That is an acknowledgment that receipts were not necessary to establish the claims of the respondent. It is not in every case that receipts are to be produced before it can be said that special damages have been established. What is required is for the party to satisfy the Court that he is entitled to judgment based on the evidence adduced in Court. This will also depend on the facts and circumstances of each case. See Obasuyi vs. Business Ventures Ltd. (1995) 7 NWLR (Pt.406) 184 at 194; Oshunjirin & Ors. vs. Elias & Ors. (1970) 1 All NLR 153; Oloruntade vs. Dandodo (1976) 1 UILR (Pt.1) 90 at 93; Odulaja vs. Hadad (1973) 11 SC 359.
No one set out to prove that which had not been denied. See Olale vs. Ekwelendu (1989) 7 SCNJ (Pt.2) 62 at 102. Receipts or documents are to be produced, when their terms are in dispute. In Owosho vs. Dada (1984) 7 SC 149, Aniagolu, JSC held at page 166 in that case that:
“…It must be pointed out that the matters in issue were not the terms of the deed of conveyance in which it would be necessary that the document should be produced in order that the court might determine the precise contents of the document…”
It is otherwise if the issue in dispute is the receipts or documents. In that case they have to be produced and proved. See Kano vs. Oyelakin (1993) 3 SCNJ 65; Oparaji vs. Ohanu (1999) 6 SCNJ 27 at 43.
The learned trial Judge held at page 94 lines 18 to page 95 lines 1-18 of the printed record as follows:
“In the written deposition filed on 28th July, 2009 by Mike Ikona (the defendant’s witness), the defendant in paragraphs 3 and 4 of their counter claim admitted thus:
(3) Before the arrest of the claimant …it was discovered to the chagrin of the defendant, that the claimant had already sawn the following number of planks of various dimensions:
(a) 10,000 pcs of 2x12xl2
(b) 20,000 pcs of 3x3x12
(c) 25,000 pcs of 2x4xl2
(d) 15,000 pcs of 2x3xl2
(e) 12,500 pcs of 4x4x12
(4) The prevailing market rates for various dimensions of timber or planks are as follows.
(a) 2x12x12 dimensions of plank cost N1,800 per unit.
(b) 3x3x12 dimensions of plank cost N600 per unit.
(c) 2x4xl2 dimensions of plank cost N400 per unit.
(d) 2x3x12 dimensions of plank cost N300 per unit.
(e) 4x4xl2 dimensions of plank cost N700 per unit.
This being the case, it is settled beyond reasonable doubt, that what is claimed by the claimant, is confirmed by the defendant’s witness, from his pleadings and admission in paragraph 3, 4 and 5 of Defendant’s counter-claim. Since the defendant’s counter-claim has not been made out from credible and corroborated evidence, it is hereby dismissed. While the claimant’s reliefs vi, vii, viii, ix and x which have been made out by credible, cogent and satisfactory evidence of the claimant, as well as by the admission of the defendant’s witness, is hereby upheld and granted, in the total sum of 50,750,000.00 (Fifty Million, Seven Hundred and Fifty Thousand Naira) only, for which reliefs Nos. vi-x by the claimant, add up to.”
The above holding is amply supported by the evidence on record. I resolve issue six against the appellant.
On the whole this appeal lacks merit and is dismissed. I award N50,000.00 cost of this appeal against the appellant in favour of the respondent.

MOHAMMED LAWAL GARBA, J.C.A.: My learned brother Joseph Tine Tur, JCA, in the draft of the lead judgment which I read before now, has fully expressed views and conclusions on the issues submitted by the Appellant for determination in the appeal, that are the same with mine. I want to emphasize, in agreeing entirely with the lead judgment, that the Appellant had failed to adduce cogent and sufficient evidence before the High Court that the Forest transferred to it by the Cross River Estates Limited (CREL) by way of sale included the Forest leased to the Respondent by the Ekpri Iko Community into which they admittedly trespassed as shown by their pleadings in paragraph 3(i) of the statement of defence and counter claim.
For the reasons proficiently stated in the lead judgment which I adopt, the Respondent had proved his case against the Appellant as required by law and is entitled to the judgment entered in his favour by the High Court. I too find no merit in the appeal and join in dismissing it as per the terms of the lead judgment.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother Joseph Tine Tur, JCA. I agree with his reasoning and conclusions that this appeal lacks merit and is therefore dismissed. I abide by all the consequential orders contained in the lead judgment including that as to costs.

Appearances

J. O. Idiege, Esq. with O. Sharon, Esq. and D. K. Kip, Esq.For Appellant

AND

O. O. Nkume, Esq.For Respondent