MR. OMOSANYA SOLARU v. PASTOR ISAIAH TEJUMOLA (2014)

MR. OMOSANYA SOLARU v. PASTOR ISAIAH TEJUMOLA

(2014)LCN/6820(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 4th day of February, 2014

CA/I/178/2011

RATIO

THE DUTY OF THE COURT WHERE THERE IS CONFLICTING TRADITIONAL EVIDENCE IN PROVING LAND IN DISPUTE

“…a plaintiff who pleaded traditional history failed to adduce evidence, credible one, in proof of same, his case is entitled to be dismissed, in toto no other evidence should be considered”

(See also Kyari v. Alkali & Ors (2001) LPELR-1728(SC) @ 33-34, Orlu v. Gogo Abite (2010) LPELR-2769 (SC) @ p 10)

Possession means the occupation or physical control of the property or parcel of land either personally or through an agent or servant of the claimant (Refers Salami & Anor v. Adetoro (2008) LPELR-2980 (SC) @ 30-31, Buraimo v. Bamgbose (1989) 3 NWLR (Pt. 109) page 355)

Where there are two conflicting traditional evidence the solution is as stated per Adekeye JSC thus:-

“where the plaintiff and the defendant anchor their case on traditional evidence in proving ownership of the land in dispute, the duty of the trial court in the circumstances is to weigh their evidence on the imaginary scale and determine which of the two is weightier” (Odunukwe v. Ofomata & Anor (2010) LPELR – SC.294/2003 @ p.44)

(See also per Rhodes-Vivour JSC – Dakolo & Anor v. Rewane Dakolo & Ors (2011) LPELR-915 (SC) @ 24-25). Per MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

JUSTICES

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

MR. OMOSANYA SOLARU Appellant(s)

AND

PASTOR ISAIAH TEJUMOLA Respondent(s)

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ogun State Sagamu Division per Hon. Justice O. O. Majekodunmi delivered on the 23rd day of February, 2011 against the Appellant as Claimant and in favour of the Respondent as Defendant.
The parties shall hereafter be referred to simply as appellant and Respondent respectively.
The Respondent claimed before the trial court the following:-
1. A declaration that the claimant is entitled to the grant of a statutory right of occupancy over a parcel of land measuring 1835.277 square metres situate lying and being along Uren Road, Ikenne Remo in the Ikenne Local Government Area of Ogun State contained and delineated in the survey plan no. OG/1534/2008/104 dated 26/09/2006 prepared by F. Daramola, surveyor of Foldland Mapping Consult of No. 163, Olisa Street, Ojebu Ode, Ogun State.
2. An order of perpetual injunction restraining the Defendant, his servant, agents and privies from further entering the said parcel of land or doing anything thereon.
3. N500, 000.00 as special and general damages suffered by the claimant from the trespass committed by the Defendant where he went on the said parcel of land and destroyed claimant’s properties thereon.
4. An order compelling the Defendant to remove his bag of charms kept on the land. (See pages 2-4 of the records for this appeal as amended at pages 123-126, 170-173 for defence to counter-claim).
While the Appellant counter-claimed as following:-
1. A declaration that all that parcel of land in dispute measuring four plots lying and situate off old Ikenne/Illishan Road, Ikenne beside Oloye Ayoganku Akinsanya’s fenced six plots of land belongs to the Defendant/counter-claimant.
2. An order of perpetual injunction restraining, the claimant, their agents, vendors, privies, assignees, servant from further trespass or carrying on of worship service or prayers or any development or building on the said Solaru land at Ikenne along the old Ikenne/Illishan Road.
3. Damages in the sum of one million (N1m) only for trespass, loss of the use of land, destruction of economic crops, mental agony and humiliation suffered in the hand of the claimant/respondent at the Police Station in the community.
4. Cost of action. (See pages 41-42 of the records)

Pleadings having been filed and exchanged by the Parties, the suit proceeded to hearing, being dully contested by both parties at the trial court. At the end of the testimonies, the learned Counsel each addressed the court. The learned trial Judge in a considered judgment granted all the claims of the Respondent and dismissed the counterclaim of the Appellant. (See pages 240-256 of the records)
Dissatisfied by the decision, the Appellant filed a Notice of Appeal containing six (6) grounds. (See pages 257-260 of the record of proceeding for this appeal).
The brief facts of the case which led to this appeal are that the parcel of land in contention originally belonged to the Messe family of Ikenne, Remo in Ogun State. That the Respondent bought the land from one Akinsanya, a part of the Messe family. While the Appellant contends that the Respondent has taken more than what belong to the Akinsanya’s family and thereby encroaching upon the land equally allotted to him as a member of Messe family.
At the hearing of this appeal on the 19th day of November, 2013, Aderemi David Jagun Esq., of learned counsel for the Appellant adopted the Appellant’s brief of argument dated 23rd August, 2011, filed on the 24th day of August, 2011 but deemed filed on the 19th November, 2013. Four issues were raised for determination as follows:-
1. Whether the lower court was right in its finding that the Respondent had been in long possession, while refusing the established principle of proof of title of traditional evidence.
(Grounds 1 & 2 of the notice of appeal)
2. Whether the lower court was right in its finding on relying on a piece of document which has never been subjected to public scrutiny to confer ownership on the Respondent without adverting itself to proof of title via adjacent land (Grounds 2 & 3 of the notice of appeal).
3. Whether the lower court was right when despite the established principles governing award of damages, be it special and general damages, it awarded the sum of N90, 000.00 as special damages and the sum of N100, 000.00 as general damages. (Ground 4 of the notice of appeal).
4. Whether the lower court was right when it ordered that the Appellant should remove the bag of charms, that was not led in evidence as such is not known to the laws.
The Respondent’s Counsel Tommy Adeyemi Esq. also adopted the Respondent’s brief of argument dated 10th April, 2013 and filed on the same day but deemed filed on the 19th November, 2013. The learned Counsel merged issues one and two of the Appellant into an issue for the Respondent while adopting issues 3 and 4 as formulated by the Appellant. Issue one is as follows:-
1. Whether the learned trial judge was right when he accepted the Respondent’s case and found it more probable that the Respondent had been in long possession of the land in dispute whilst he discredited the evidences of the Appellant and his witnesses. (Distilled front ground 1, 2 & 3 of the grounds of appeal).
This appeal shall be determined on the issues formulated by the Appellant. Issues one and two shall be taken together.

Issues one and two
The learned Counsel for the Appellant challenges the decision of the learned trial judge on two planks as follows:-
a. That the learned trial judge jettisoned the established principles of proof of title by traditional evidence in preference to long possession claimed by the Respondent.
b. That the learned trial judge erred by ignoring the traditional proof of title via adjacent land by rather relying on a piece of document which has never been subjected to public scrutiny by which ownership was conferred on the Respondent.

In this line of argument the learned Counsel for the Appellant submits that the Respondent claimed to have bought the land in 2004 from a vendor who claims to have been on the land since 1975 through an allocation made to them by the Messe family heads, the same family heads that the Appellant is equally claiming his root of title through.
The case of the Appellant is that he was allotted 4 plots of land from the Messe family head as a member of Messe family while the Respondent’s vendor was allotted 6 plots of land. It was not in contention by the Respondent at the lower court that parties are members of Messe family, though the lower court made an issue that Appellant did not prove his membership of Messe family despite having as his witnesses, the Heads of the Messe family.

The Appellant in this case relied on the evidence of the Elders of Messe family (Traditional Evidence) most of whom are in their seventies who gave evidence of the account of the disputed land as it was related to them by their progenitors. That the Respondent’s vendor was their son they are agreed they allotted 6 plots of land to and 4 plots of land to the Appellant. That in a bid to settle the matter, they (elders) went on the disputed plots of land which virtually all of them grew to know with CW3 and measured it to convince Respondent’s vendor that the land was outside the one allotted to Respondent’s vendor’s father. It is the submission of the learned Counsel for the Appellant that there could have been no superior evidence greater than this proof of title. Counsel maintains that the lower court ought to have relied on this piece of evidence rather than on a piece of paper that was not authenticated.

The learned counsel for the Appellant contends that any small act or conduct which a party exercised on a parcel of land to the exclusion of other persons could be regarded as possession. Counsel placed reliance on the case of Buraimo v. Bamgbose (1989) 3 NWLR (Pt.109) page 355 which held that
“legal possession includes constructive possession and a person who is in possession of land includes a user of it and one who is in physical control thereof as well as one who is in receipt of rents and profits from tenants installed thereat by him”.
That the Respondent claimed to have been in possession of the 2 ‘bd plot of land since 2004 but that he only noticed the activities of the Respondent in 2007 which he promptly challenge and that does not confer acts of long possession on the Respondent, that the only link of possession is exhibit F1-F3.
Counsel submits that the trial court confer acts of long possession on the Respondent by virtue of the survey plan made shortly after the action was filed at the trial court contrary to section 90 (3) Evidence Act, LFN 2004. It is further submitted that the conveyance of the Respondent’s vendor and the survey plan were never subjected to public scrutiny by way of advertisement. That anyone could sit down in his house and prepare the survey plan.
Counsel challenges the Respondent’s long possession, on the ground that being a family land and according to Yoruba Customary law family land could not be assigned to a non-family member without the consent of the family head. Counsel refers to the case of Bamgbose V. Oshoro (1988) 2 NWLR (Pt.78) page 511 where it was held that
“an Allotee of family property cannot make any valid disposition of family land without consulting with the elders of the family and their consent must in all cases be given before a grant can be made to a stranger”.
On the five modes which declaration of title to land could be made, Counsel refers to Idundun v. Okumagba (1976) 1-10 SC @ 227 & Ifo v. Essien (1986) 5 NWLR (Pt.41) @ page 380.

Counsel further submits that the trial court ought to have relied on the evidence given by the elders of the Messe family (Traditional Evidence) considering their age and they know more in regards to the disputed land than relying on a piece of paper that was not authenticated.

Arguing issue two, the learned Counsel for the Appellant contends that the trial court relied on documents tendered by the Respondent to confer title, documents which some were made in course of the trial contrary to section 90 (3) Evidence Act, LFN, 2004 and could not be validly regarded to be a final proof evidencing ownership. Maintains that even the production of a C of O is not a final proof which confers ownership on the individual but a proof that he occupies the property more so these documents were not subjected to public scrutiny.

The Appellant’s Counsel also alluded to the issue of fraud as the receipt relied upon by the Respondent was issued twice with two different authors. The survey plan was also made twice, one when the dispute arose, but this issue was glossed over by the learned trial Judge and not sustained. On the authority of Ifo v. Essien (supra), Counsel urges us to declare this “impressive” but not credible piece of evidence as null and void as it is not every “impressive” evidence that is credible.

Counsel also contends that through his witnesses he was able to proof that the Respondent has 6 plots which was fenced while the Appellant has 4 plots by its side extend to the Uren River, that these evidence were never challenged or controverted. That even the proof of title by possession of connected or adjacent land is stronger and ought to have been ruled on the side of the Appellant but the trial court did not. (Refers Idundun v. Okumagba (supra), section 45 of the Evidence Act LFN, 2004).

The learned Counsel for the Respondent refers to the cases of Idundun v. Okumagba (1973) NWLR 200, Lawson v. Ajibulu (1979) 6 NWLR (pt. 507) 14 @ 18 & Otukpo v. John (2012) NSQR 1304 @ 1307 on the five ways of acquiring land and submits that acquisition of land is no more restricted to those five ways alone as there are other ways such as, gift, grant, purchase and inheritance. (Refers Adisa v. Oyinwole (2002) 6 BCNJ 290)

Counsel submits that the Respondent by paragraphs 4-9 of his amended statement of claim and evidence led by him and his witnesses has established ways of acquiring title as follows:-
i. By various act of ownership, numerous and positive by his predecessor in title and himself extending over a length of time to warrant the inference that he is the owner.
ii. By purchase (Exhibit A) which was issued to him by the predecessor in-title, Abayomi Akinsanya and
iii. By act of long possession and enjoyment of the land.
That the law requires a party claiming title to prove one out of the five recognised ways (Refers Nwabuoku & Ors v. Onwordi & Ors (2006) 2 SCNJ 61 @ 70)
Counsel also submits that where a party is relying on acts of possession to establish title to land, he must also prove the nature and origin of possession. (Refers Leonard Eronimi & Ors v. Francis Iheukko (1989) 2 NWLR (Pt.101) 46). That there are credible evidence accepted and acted upon by the trial court which proved the nature and origin of possession of the land in dispute by the Respondent. He then refers this court to the testimonies of PW1, PW2, CW3, CW4 & CW5 at pages 220-227 of the records.

Counsel further submits that cultivation of a parcel of land, erecting a fence, and demarcating it with pegs or survey beacons may be sufficient acts of possession. (Refers Adediran v. Alag (2001) 18 NWLR (pt.745) 22). That the Respondent has proved a prima facie case as to ownership of the land in dispute and the onus is on the Appellant to rebut same. (Refers section 145 Evidence & Mrs. Jarin Adegbite v. Chief M. K. Ogunfaolu (1990) 4 NWLR (Pt.190) 579 @ 598).

Counsel submits that the law is that where a claim to title is based on traditional history, the line of succession must be pleaded and satisfactorily proved and not to merely state as in this case that the Appellant is a member of Solaru family. (Refers Kalio v. Wolucham (1985) 1 NWLR (pt.4) 616, Oyadiji v. Olaniyi (2005) ALL FWLR (Pt.238) 1083 @ 1093)

On the submission in paragraph 5(j) of the Appellant’s brief on the evidence of elders of Messe family (traditional evidence), that it did not help the case of the Appellant as it fails to tender evidence before the trial judge the Messe family record of land allotment about which DW1, D W2, DW3 and DW5 gave evidence on behalf of the Appellant (alluded to in their evidences.) The failure of the Appellant and the elders of the Messe family who gave evidence in favour of the Appellant to tender the Messe family record of land allotment is fatal to the claim of the Appellant and therefore submits that such evidence if tendered would have been unfavourable to the claims of the Appellant. (Refers section 149 (d) Evidence Act & Habib Bank Ltd v. Koya (1992) 7 NWLR (Pt.251) 43).

On the submission at paragraph 5(f) of the Appellant’s brief on Exhibit D (survey plan of the Respondent), Counsel submits that Exhibit D is not contrary to section 90 (3) of the Evidence Act as postulated by the Appellant, that exhibit D was made on 26/9/2008 while the suit was commenced on 11/2/2009. That assuming without conceding that exhibit D is contrary to section 90 (3) Evidence Act and expunged, that there are other evidence which support the case of the Respondent.

On paragraph 5 (g) of the Appellant’s brief, Counsel refers this court to page 220 of the records to the effect that the trial court did not rely on the conveyance of the Respondent’s vendor to arrive at his decision as the said agreement was rejected and marked as rejected.

On paragraph 6.18 of the Appellant’s brief, counsel submits that there is no law’ that provides for the public scrutiny by way of advertisement of document as postulated by the Appellant. (Refers Jiwul v. Dimlong (2003) 9 NWLR (pt.824) 154)

On paragraphs 6.3 & 6.17 that is, regarding fraud raised by the Appellant on the documents tendered, counsel submits that the Appellant failed to lead any evidence to substantiate his claims and that since the Appellant did not appeal against the findings of the court on the document (Exhibit A) the allegation goes to no issue.

On paragraph 5(ii) that apart from the elders’ contention that Messe family land cannot be assigned to an outsider without the consent of the family head, there was no evidence to strengthen the Appellant’s contention or to challenge the sale to the Respondent.

In a claim of title to land, there are five main ways laid down by the Apex court in the case of Idundun v. Okumagba (1976) 9-10 SC 227 which has consistently been applied and followed in numerous cases. The proof of at least one way or a combination of one or two confers title to land except if there is a person with a better title.
In the case of Yusuf v. Adegoke & Anor (2007) LPELR-3534 (SC) per Aderemi JSC @ page 18-19 held that:-
“it is well established principle of law that a party claiming declaration of title to a statutory or customary right of occupancy to land does not need to plead more than one of the prescribed methods of proof of title to rand to succeed….”

In this case both the Appellant and the Respondent claim title to the disputed land through the traditional way or means which is one of the acceptable ways of proving title to land in Nigeria per Idundun’s authority.

A party who seeks a declaration of title via the traditional history must plead and lead evidence on how and when he came to acquire the land in dispute failure so to do may result to forfeiture of the said land to a better title holder. In the case of Yusuf V. Adegoke & Anor. (2007) LPELR-3534 (SC) per Aderemi JSC @ p 25 held that:-
“…a plaintiff who pleaded traditional history failed to adduce evidence, credible one, in proof of same, his case is entitled to be dismissed, in toto no other evidence should be considered”
(See also Kyari v. Alkali & Ors (2001) LPELR-1728(SC) @ 33-34, Orlu v. Gogo Abite (2010) LPELR-2769 (SC) @ p 10)

Where there are two conflicting traditional evidence the solution is as stated per Adekeye JSC thus:-
“where the plaintiff and the defendant anchor their case on traditional evidence in proving ownership of the land in dispute, the duty of the trial court in the circumstances is to weigh their evidence on the imaginary scale and determine which of the two is weightier” (Odunukwe v. Ofomata & Anor (2010) LPELR – SC.294/2003 @ p.44)
(See also per Rhodes-Vivour JSC – Dakolo & Anor v. Rewane Dakolo & Ors (2011) LPELR-915 (SC) @ 24-25)
The Appellant and his witnesses were not decided on which of the heads of the Messe family allotted the plots in contention to the Appellant. Was the allotment by Chief Agunrege, Shittu or Baba Pupa as heads of the Messe family at different times?
Such was the value and nature of evidence adduced by the Appellant as against the solid case of the Respondent.
The learned trial Judge eminently captured these inconsistencies in the judgment when his lordship held at Page 249 -251 (page 10-12 trial court judgment) of the records that:-
“At this stage, I will now consider the counter-claim of the defendant. The defendant relies on traditional evidence and acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership. Let me start by saying that the defendant gave evidence in line with paragraph 12-15 of his statement of defence and also in line with paragraphs 10-40 of the counter-claim. However the afore-mentioned paragraphs are irrelevant to the facts in issue in this case as they neither relate to the traditional history of the defendant in respect of the land in dispute nor to any act of possession exercised by him over the said land. The said paragraphs dwelt extensively on what transpired between the parties after this dispute arose, that is to say, the allegations and counter-allegations; the various arrest and visits to the Police; the acts of taking the law into their hands prior to the commencement of this case; and all manner of judicial actions taken by both sides. They are not helpful to the case of the defendant.
It is instructive that in one breath, the defendant claims that land was allotted in 1976 to each member of the Messes family and in another breath to the Solaru family. The defendant has not given any credible evidence of the pattern of allocation of the land, whether it was allotted per family or per head (as in the case of Chief Akinsanya, which is not denied). The defendant did not tell the court how many plots were allotted by the Messe family to each individual or to each family. He however named other members of the Messe family that were allotted land to be one Osibamowo and Dr. Ogundalu. It thus appears that all the other allotments made were to individual except that of the defendant/counter-claimant’s family. He claims that Chief Akinsanya (an individual) got six plots of land but that Salaru family got four plots of land. The inconsistency in the alleged allotment is unexplained and it puts a hole through the traditional history of the defendant. DW1 claimed to be the present head of Messe family and that he became the head about three years ago (that is, about the same time that this dispute arose). He said in his evidence in chief (that is, in his written statement on oath) that he is aware of the allotments made by his predecessor, Chief Agunrege in 1976 but did not say how he came about such knowledge. DW3 told this court that the land was allotted during the tenure of Baba Pupa. DW1, the acclaimed Head of Messe family however stated under cross-examination that the land in dispute was allotted to the Solaru family during the tenure of one Shittu Sanusi contrary to the averments in the statement of defence and to his evidence in his statement on oath that same was allotted during the tenure of Agunrege. This, coming from the supposed Head of the family, I’m afraid, is a serious and material contradiction which casts doubts on the reliability of such a witness and on the case presented by the defendant as a whole. DW1 said under cross-examination that the Messe family keeps records of allotted land and that the records were handed over to him when he became the Head of the family. DW2, who said he is the assistant secretary of Messe family, testified that he is aware of the allotments to Chief Akinsinya and to the Solaru family from family records. DW3 & DW5 also alluded to the family records of the allotment. The defendant however, failed to tender any such records to prove the allotment to the Solaru family. By section 149 (d) of the Evidence Act, where a party refuses to produce evidence that is material which is required to prove certain facts which are within the knowledge of a witness as in this instance, it is presumed that the evidence if adduced would be unfavourable to the person withholding it. See Habib Bank (Nig) Ltd v. Koya (1992) 7 NWLR (pt. 251) p. 43.”
Unlike the incongruently assembled story of the Appellant, the Respondent’s story was consistent. The source of his title was unchallenged and totally uncontested by the Appellant. Rather, the Appellant, in recognising the title of the Respondent only claims that the Respondent had exceeded his known purchased portion. This assertion was however, not established by the Appellant. Little wonder then that the learned trial judge concluded at page 254 of the record that:-
“It is settled law that where the pleaded title to land has not been proved. It will be unnecessary to consider act of ownership and possession which acts are no longer acts of possession but acts of trespass. See Odofin v. Ayoola (1984) 11 S.C. p. 72; Balogun v. Akanji (1988) 1 NWLR part 70 p. 301; and Oyadare v. Keji & Anor, supra. Nonetheless, I cannot but mention regarding the defendant’s pleaded acts of possession that apart from the ipse dixit proffered in this regard, there is no evidence to show that the defendant or any member of his anonymous Solaru family ever farmed on the land. Only the defendant had been discovered to have been there to pilfer the bamboo trees which the claimant had fell. The defendant’s witnesses even gave contradictory evidence as to the items being cultivated on the land. I therefore hold that the defendant (who had not denied going there on more than one occasion and has admitted removing bamboo trees) is a trespasser on the land in dispute.
The defendant is contending that all the documents presented by the claimant before this court are forged and fraudulently made. He however did not lead any evidence in proof of these averments and they must therefore be deemed abandoned. The defendant made heavy weather of the fact that the claimant had another place of worship at Itungodo, relying on Exhibit E which is a photograph of same. As rightly submitted by the learned counsel for the claimant, it is photograph of the claimant’s former place of worship and goes to no issue as the said lace of worship is not in issue. It is immaterial and irrelevant to this case.”
I find it difficult to fault this formidable analysis and conclusion by the learned trial Judge.

Issue three
The Appellant is irked at the award of special and general damages to the Respondent.

Learned counsel submits on the authority of Nicon Hotels Ltd v. NDIC Ltd (2007) 13 NWLR (Pt.1051) 237 which defines damages as pecuniary compensation or awards given by process of law to a person who has suffered loss or injury whether to his person or property through the unlawful act or omission of another.

Counsel submits that special damages must be specifically pleaded by way of particularization and strictly proved which means that the Respondent must stand or fall on his evidence unlike general damages, special damages cannot be inferred from the nature of the acts complained of. (Refers Commet S. A. (Nig) Ltd v. Babbit (Nig) Ltd (2001) 7 NWLR (pt. 712) page 442 @ 545, Arison’s Trading & Eng. Co. Ltd v. Military Government of Ogun State (2009) SC 5-6 (Pt.1) 131 @ 155).

That the trial court erred in law in the award of special damages to the Respondent on a conjecture, a pre-emption of the cost of the material claimed by the Respondent as no evidence was led to the cost of bamboo, labour, pew, alter and banners or any receipt tendered (Refers Uhunmwangho v. Uhunmwangho (1992) NWLR (Pt.226)) and that the facts that the items were listed and a price tag was put on them does not qualify under the strict proof of special damages. That claims were pleaded but not strictly proved. (Refers Obasuyi v. Business Ventures Limited (2006) 5 NWLR (pt. 668) @ page 694, NEPA v. Alli (1992) 8 NWLR (Pt.259) @ page 289)

Counsel further submits that award of special damages which is discretionary must be judiciously exercised. That in this case the land in question is intact and suffered no harm to warrant any form of damages except for the shed which was never in evidence that it was destroyed.

Conversely, the learned counsel for the Respondent submits that the award of N90, 000.00 special damages to the Respondent is based on credible evidence adduced by the Respondent which was neither challenged nor contradicted. That it was specifically pleaded and proved. Citing the case of A. S. E. S. A. v. Ekwenemi (2009) 13 NWLR (pt.1158) 410 @ 434, para. 25 of the written statement of oath, para. 19 of the amended statement of claim of the Respondent. That the law does not require an extraordinary measure of evidence to establish entitlement to special damages but to show particulars in accordance to the pleadings as to the precise claim. (Refers Salako v. Williams (1998) 11 NWLR. (pt.514) 505, UBA Plc v. Ogundokun (2009) 6 NWLR (pt.1138) 450 @ 489)
On argument on paragraph, 7.14-7.17 of the Appellant’s brief of argument in regards to general damages, Counsel submits that contrary to the Appellant’s contention trespass is actionable per se. that the claimant is entitle to damages even if he did not sustain actual loss but he can, through credible evidence establish that there was actual trespass, as in this case, he is entitle to recover damages. (Refers Shell Petroleum Dev. Coy Nig. Ltd v. Chief L.O. Ekwems & Ors (2009) 4 NWLR (pt. 1131) 229 & Anyanwu v. Uzowuaka (2009) 13 NWLR (pt. 1159) 445 @ 453)
Paragraph 7.1 of the Appellant’s brief of argument on the issue of N60, 000.00 being cost of the suit; Counsel submits that the Appellant failed to give evidence on why it should be set aside.
The Appellant finds the award of special damages made by the learned trial judge as unjustifiable, amounting to double remedy. It is the case of the Appellant that the Respondent faired to strictly establish the special claim as required by law.
The case of Ahmed & Ors v. CBN (2012) LPELR-9341 (SC) Fabiyi JSC defines special damages as follows:-
“Special damages have been defined as those which are the actual, but not necessary, result of the injury complained of, and which infact follow it as a natural and proximate consequence in the particular case, that is, by reason of special circumstances or conditions. Twin Coach Co. v. Chance Vought Aircraft Inc. 2 Storey 588, 163 A-2d 278, 286- Such are damages which do not arise from wrongful act itself, but depends on circumstances peculiar to the infliction of each respective injury. To be recoverable, they must flow directly and immediately from the breach of contract, and must be reasonable foreseeable. Special damages must be specially pleaded and proved. (Black’s Law Dictionary, Sixth Edition, page 392) In the old case of Hadley v. Baxendale, (1854) 9 Exchequer 341 it was held that Special damages are recoverable by the injured party if the loss may be fairly and reasonably considered to arise naturally. The loss must be reasonably supposed at the time of making the contract to have been in the contemplation of both parties as the probable consequence of its breach”
The case of Akinkugbe v. Ewulum Holdings Nigeria Ltd & Anor (2008) LPELR-346 (SC) per Aderemi JSC @ page 12-13 looked at what constitute special damages as follows:-
“Special damages said Bowen L. J. in Radcliffe v. Evans (1892) 2 Q. B. 524 C. A. at 528:- means the particular damage (beyond the general damage), which result from the particular circumstances of the case, and of the plaintiffs claim to be compensated, for which he ought to give warning in his pleadings in order that there may be no surprise at the trial”
(See also Saleh v. Bon Ltd (2006) LPELR-2991 (SC), Xtoudos Services Nigeria & Anor v. Taisei (W. A) Ltd & Anor. (2006) LPELR-3504 (SC))The learned trial judge made an award of N90, 000.00 as special damages. The thorough perusal of the proceedings before the trial court did not reveal any compelling evidence adduced in strict proof of the special damages claimed.
In the circumstances, I find it difficult to affirm the award of special damages made. The reason is that the standard of proof was not met in support of an award of special damages which admits only of strict proof. (See Saleh v. B.O.N Ltd (2006) 6 NWLR (Pt.976) 818, Adim v. NBC Ltd (2010) 9 NWLR (Pt. 1200) 543 S.C)
In his wisdom the learned trial judge awarded the sum of N100, 000.00 in general damages. This court ordinarily does not interfere with such awards except in special circumstances as set out by the Supreme Court.
In the case of A.S.E.S.A v. Ekwenem (2009) 13 NWLR (pt.1158) 410 @ 434 the Supreme Court held that:-
“an Appellate court will not interfere with an award of damages by a trial court because it is inclined to award a different amount. In order to justify reversal of the decision of the trial court in the question of the amount of damages, it is necessary for the Appellate court to be convince that one of the following circumstances viz,
i. That the trial court acted upon some wrong principle of law or under mistaken point of law.
ii. That the award is arbitrarily or perverse
iii. There is an element of wrong exercise of discretion in the award
iv. That injustice will result if the appeal court does not interfere
v. That the amount awarded by the trial court is either ridiculously high or ridiculously low that it must wholly erroneous estimate of the damages.”
In the case of G.K.F. Investment Nigeria Limited v. Nitel Plc (2009) LPELR-1294 (SC) per Ogbuagu JSC @ p 31. The Apex court held that:-
“general damages, are such as the law, will presume to be the direct natural probable consequences of the act complained of…”
Also in Cameroon Airlines v. Otutuizu (2011) LPELR-827(SC) Per Rhodes-Vivour JSC @ p.31 that:-
“…general damages are thus losses that flow naturally from the adversary and it is generally presumed by law, as it need not be pleaded or proved…it is awarded by the trial court to assuage a loss caused by an act of the adversary.”The Respondent established a better title to the land in dispute. Exhibits were tendered which showed that Appellant disturbed without good caused, the Respondent’s peaceable enjoyment of the landed property he had acquired in accordance to the law. I hold that the Respondent is entitled to the award of general damages made by the learned trial judge and I hereby affirm the award.
Issue four
Counsel for the Appellant submits that evidence was never led as to how the alleged bag of charms was dropped on the land. That no eye witness testified as to seeing the Appellant dropping the bag of charms. There was also no evidence as to the effect of the bag or charms on the Respondent. That the law is certain that he who asserts must prove and not just to make allegation. That in the absence of answers to the above questions this court should hold that no findings ought to have been made by the trial court.Counsel also submits that charms are within the realm of superstition and unknown to our law except if logically proved for a judicial notice to be taken on it.
Learned Counsel for the Respondent refers this court to paragraph 19 of the written statement on oath at page 85 of the records which was corroborated by the evidence of CW5 at paragraph 15 of his written statement on oath at page 93 of the record to the effect that a bag of charm was placed on the disputed land. That the piece of evidence was never controverted nor contradicted by the Appellant.
Counsel also urges us to affirm the order of the trial court for the removal of the said bag of charms on the disputed land.
The controversy on the bag of charms is quite interesting. No evidence however was led as to the particulars of the ownership of the said bag of charms. What is on the land belongs to the land the maxim is “quicquid plantatur solo, solo cedit”. The Respondent shall do as he wills with the bag of charms. The order of the learned trial Judge was made without facts established to support same. The said order is hereby quashed.
I agree with the findings and conclusions arrived at by the learned trial court on all other issues and I find no perversion in the said decisions. On the whole I find this appeal as lacking in merit and is hereby dismissed
A cost of N30, 000.00 is hereby awarded to the Respondent and against the Appellant.

CHIDI NWAOMA UWA, J.C.A.: I read in draft the judgment delivered by my learned brother M. B. DONGBAN-MENSEM, J.C.A.
I agree that the appeal is lacking in merit and dismiss same. I abide by the order made therein as to costs.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft, the judgment of my Lord Monica Bolna’an Dongban-Mensem J.C.A. I agree with the conclusion reached.

Appearances

F. B. Aladeniyi (Mrs.) with Mojisola Tanimowo Esq.For Appellant

AND

T. O. Adeyemi Esq.For Respondent