MR. JOEL OLAWALE AJIBOLA v. PASTOR JOSEPH ADEOLU ANISERE & ANOR (2019)

MR. JOEL OLAWALE AJIBOLA v. PASTOR JOSEPH ADEOLU ANISERE & ANOR

(2019)LCN/13643(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of July, 2019

CA/AK/98/2017

RATIO

LAND LAW: A PLAINTIFF SEEKING DECLARATION OF TITLE TO LAND MUST PROVE THE ROOT OF HIS TITLE

The law is that a plaintiff who seeks a declaration of title to land must prove the root of his title. See ARCHIBONG V EDAK (2006) 7 NWLR, PT 980, 485 (CA); DIKE V OKOLOEDO (1999) 10 NWLR PT 623, 359 (SC) and OTANMA V YOUDUBAGHA (2006) 2 NWLRPT 964, 337 (SC). PER PATRICIA AJUMA MAHMOUD, J.C.A.

LAND LAW: 5 WAYS TO ESTABLISH TITLE TO LAND: ONE METHOD IS SUFFICIENT

The five accepted ways of establishing title to land as well set out in the celebrated case of OKUMAGBA V IDUNDUN (1976) 9-10 SC 227 and that of AYOOLA V ODOFIN (1984) 11 SC, 120 and a host of other authorities which I find too many and perhaps unnecessary to list here as the issue has become too trite. The first of these five ways of proving title is by traditional evidence. It is important to point out at the outset that the establishment of one of the five ways is sufficient proof of ownership. EWO V ANI (2004) 17 NSCPR, 36, ADESANYA V ADERONMU (2000) 6 SC (PT. II) PER PATRICIA AJUMA MAHMOUD, J.C.A.

EVIDENCE : WHEN NOT CHALLENGED

DAMAGES: SPECIAL DAMAGES: HOW THEY SHOULD BE PLEADED

WHETHER A PARTY CAN LAY CLAIM TO THE FEE HE PAID HIS SOLICITOR ON THE SUCCESS OF HIS MATTER

It is progressive to note that our law has moved from GUINNESS (NIG) PLC V NWOKE (2000) 15 NWLR, PT 689, 135 when such a claim was said to be unknown to law to the more dynamic posture of our Courts in the more recent cases of LONESTAR DRILLING NIG LTD V NEW GENESIS EXECUTIVE SECURITY LTD (2011) LPELR ? 4437 (CA) and NAUDE & ORS V SIMON (2013) LPELR ? 20491 (CA) where such claims are granted if properly pleaded and proved. The instant case falls into this latter category of legal dynamism. I therefore award N2,000, 000 in favour of the plaintiff/appellant for money paid to his solicitors for the prosecution of this case as claimed. PER PATRICIA AJUMA MAHMOUD, J.C.A.

JUSTICES

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria

Between

MR. JOEL OLAWALE AJIBOLA
(for himself and on behalf of members of Ajibola Olafasan family) Appellant(s)

AND

1. PASTOR JOSEPH ADEOLU ANISERE
2. EMERGING MARKET TELECOMMUNICATION SERVICE LTD Respondent(s)

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The appellants as plaintiff in the lower Court by an amended writ of summons dated the 12th July, 2013 sought against the defendants/respondents as follows:-
“(a) A declaration that the plaintiff as representative of Ajibola section of Olafasan family of Onilearan Compound Modekeke-Ife is entitled to the Statutory right of Occupancy over a parcel of land situate, lying and being at Oluwada Titi Village and bounded as follows:
On the 1st side by Ajala family farmland
On the 2nd side by Olaniyi and Lamidi Anisere Farmland Olafasan.
On the 3rd side by Oseni Tokun Farmland.
On the 4th side by Oloparun River.
(b) A declaration that the erection of the 2nd Defendant?s communication mast Tower on the plaintiff?s land situate at Oluwada Titi Village and bounded as follows:- on the 1st side by Ilesha/Ife Express Road, on the 2nd, 3rd and 4th side by the plaintiff?s farmland is illegal and unconstitutional.
?(c) A declaration that the 1st Defendant not being a member of Ajibola section of Olafasan family has no right, or

authority to lease the plaintiff?s land to the 2nd defendant and as such the purported lease of the plaintiff land by the 1st defendant to the 2nd defendant is illegal, null and void.
(d) N8, 000, 000 (Eight Million Naira) being special and general damages caused by the 2nd Defendant by erecting her communication mass Tower on the Plaintiff?s land.
PARTICULARS
(i) Destruction of 200 stands of palm trees on the land, the value is N2,000,000 (Two Million Naira)
(ii) Destruction of 200 cocoa trees value N1, 5,00,000.00 (One Million Five Hundred Thousand Naira)
(iii) Destruction of 150 orange trees value N1,000,000.00 (One Million Naira)
(iv) Destruction of cassava value N500, 000.00 (Five Hundred Naira).
GENERAL DAMAGES ? N3, 000, 000.00 (Three Million Naira)
(e) A declaration that the plaintiff is entitled to rent from the 2nd Defendant for the illegal use and occupation of the plaintiff?s land by the 2nd Defendant since January 2010.
(f) The sum of N56,000,000 (Fifty Six Million) being the amount of rent due to the plaintiff from the 2nd Defendant for the 2nd Defendant?s illegal

occupation and use of plaintiff?s land from January 2010 till date at the rate of N4,000,000.00 (Four Million Naira) per month.
(g) An order of the Court directing the 2nd Defendant to remove its communication Mass Tower erected on the Plaintiff?s land.
(h) Perpetual Injunction restraining the Defendants, their agents, servants? privies or assigns from further entering and committing further acts of Trespass on the plaintiff?s land.
(i) The sum of N2, 000, 000.00 (Two Million Naira) being the money paid by the Plaintiff to his solicitor for the prosecution of this case.

In proof of their case, the plaintiffs/appellants called five witnesses and tendered six Exhibits which were admitted and marked as Exhibits A, B, C, C1, C2 and D. The case of the plaintiffs was that the 1st defendant wrongfully leased the plaintiff?s land to the 2nd defendant. That the 2nd defendant forcefully and without the consent of the plaintiff entered the farmland belonging to the plaintiff?s family and caused a bulldozer to destroy the economic crops worth N500,000 planted on the disputed land by the plaintiffs and their

ancestors in preparation for the erection of the 2nd defendant?s mast communication tower. That the entire land which both himself and the 1st defendant?s ancestors inherited had been partitioned into three parts long ago according to the Idi Igi custom of the number of wives of their progenitor, Olafasan. That the said Olafasan was granted the land by Oba Ademiluyi, Ooni of Ife. That it was his own family?s section that was wrongfully entered into by the 2nd defendant.
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The 1st defendant did not give evidence in the matter. The 2nd defendant however called a lone witness and tendered four Exhibits. These were marked as Exhibits E, F, G and H. the defence of the 2nd defendant was that the 1st defendant granted them a leasehold on the alleged parcel of land measuring 20metres by 20metres on the property described as ?Pastor Joseph Olofasan?s plot situate at Olafasan?s village, along Ilesa-Ife Express way, Ife North Modakeke, Osun State with co-ordinates N7.56932 North and E4. 54130 East. That before entering the land they conducted routine due diligence on the property and obtained a resolution passed by the principal

members which was admitted in evidence as Exhibit F. That they also obtained a letter of confirmation of ownership/title to land from the Baale/Head of Oluwadatiti village which was admitted in evidence and marked as Exhibit H.

At the conclusion of hearing, the learned trial judge, Hon. Justice Akinwale D. Oladimeji of the Osun State High Court sitting in the Ile-Ife Judicial Division in his judgment delivered on the 06/10/2016 dismissed the plaintiffs claim.

Being dissatisfied with the said decision, the appellants by a notice of appeal filed on the 23/11/2016 appealed to this Court on six grounds:
GROUND ONE
The judgment is against the weight of Evidence
GROUND TWO
The Learned Trial Judge erred when he held that ?It appears that the above evidence elicited from the Plaintiff clearly shows that the Plaintiff has received compensation in respect of the land in dispute, having been paid compensation by another person on the crops that were destroyed by the 2nd Defendant.
GROUND THREE
The learned trial Court erred in law and fact when he held that ?The fact that compensation had been paid by somebody on the

land presupposes that, the land in dispute had either been sold by the plaintiff to another person or the land had been acquired by another body. It does appear that what the plaintiff is asking for has been given away by him and you cannot therefore eat your cake and have it?
GROUND FOUR
The learned trial Court erred in law when he held ?once there is compulsory acquisition of land as in this case, the title of the former owner became extinguished?
GROUND FIVE
The learned trial Court erred in fact and misdirected himself when he held that the Plaintiff has received compensation in respect of the land in dispute.
GROUND SIX
The learned trial Court erred in law when he relied on the issue formulated by the 2nd defendant counsel to determine the matter without recourse to the pleading and evidence led before the Court.

Whereof the appellant sought the order of this Court to allow the appeal, set aside the decision/judgment of the lower Court and grant all the reliefs sought therein.
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In prosecuting the appeal, the appellants filed their notice of appeal on the 19/12/2017 which was deemed properly filed on

the 22/10/2018. In arguing the appeal, MR J. A. Adeboye of Counsel for the appellant adopted the brief as their legal arguments in support of the appeal. In it they raised four issues for determination of the Court:-
(i) Whether or not the trial Court was right to have based his entire judgment solely on evidence elicited from the plaintiff/appellant under cross examination which, is contrary to pleading and without proper evaluation of the totality of the evidence on record.
(ii) Whether or not there is sufficient evidence on record for trial Court to have held that the plaintiff has received compensation in respect of the land in dispute and therefore divested of his title to the land.
(iii) Whether or not the trial Court?s finding of facts was perverse or not and
(iv) Whether or not the address of counsel can take the place of evidence.

On the four issues raised, MR Adeboye in summary submitted that the trial Court erred when it held that the appellant had received compensation in respect of then land in dispute having based its findings on evidence elicited during cross examination which is not in tandem with the pleadings

of the 2nd Respondent relying on the evidence. That the trial Court erred when it held that having been paid compensation by another person on the crops that were destroyed by the 2nd defendant when the evidence pleaded and led before the trial Court was that the Federal Ministry of Works and Housing paid compensation on crops planted on the portion of the Plaintiff/Appellant?s land that was used for the construction of the Ife-Ilesha Express Road. Counsel further submitted that the trial Court erred and came to a wrong decision which occasioned a miscarriage of justice when he held that compensation has been paid on the entire land in dispute between the appellants and the respondents. That the land in dispute between the appellants and the respondents which is the area trespassed upon by the 2nd respondent is different from the portion on which the Federal Government constructed the road.

Counsel further submitted that the Court did not take into consideration the evidence led before him including the exhibits tendered before arriving at its decision. That the trial Court swallowed hook, line and sinker the submissions contained in the 2nd

respondent?s written address which made him come to the wrong conclusion that compensation was paid by another person on crops that were destroyed by the 2nd respondent. Counsel also submitted that the trial Court failed to assess and evaluate the evidence led before him before coming to the conclusion that the plaintiff/appellant had been divested of his title in the land in dispute. That the trial Court did not properly ascertain the land in dispute before him as the land in dispute is larger than the area upon which the 2nd respondent trespassed.

Counsel therefore urged the Court to allow the appeal, reverse and set aside the judgment of the lower Court including the order for cost and grant all the reliefs sought by the plaintiff/appellant in the Court. Counsel also filed a list of additional authorizes on the 25/02/2019 which they also adopted and urged on the Court find in their favour.

The 2nd respondent filed their brief of argument on the 01/11/2018. In arguing the appeal, MR O. O. Adebiyi of counsel for the 2nd respondent adopted the brief as the legal arguments in opposition to the appeal. In it, counsel raised two issues for

determination:-
1. Whether the lower Court rightly accepted and acted on the evidence elicited from the appellant under cross examination which showed that the Appellant has received compensation in respect of the land in dispute (Ground 2).
2. Whether the appellant proved his case before the lower Court to warrant setting aside the decision of the lower Court, by this Hon. Court? (Ground 1).

The respondent?s brief has failed to comply with ORDER 19(3)(4) of the Rules of Court 2016 which provides that ?all briefs shall be concluded with a numbered summary of the points raised and the reasons upon which the argument is founded?. There is no summary but only conclusion in this brief. While I would not penalize the 2nd respondent for failure to summarize its brief in line with the rules as aforesaid, I would also not summarize same for them in this judgment. Suffice it to say that I have read the brief in great detail and carefully and would refer to any portion of it as becomes necessary in the course of writing this judgment, either directly or indirectly.
?
I have considered the issues formulated for consideration by both

parties in this appeal. The two issues by the 2nd respondent are the same as the appellant?s issues (i) and (ii) and perhaps (iii). In other words, I find that the issues raised by the appellant would be the issues used in the determination of this appeal.

The first issue raised by the appellant in my view is the flip side of issue (3) as raised by them.

In other words whether or not the trial Court was right to have based his entire judgment solely on evidence elicited from the plaintiff/appellant under cross examination which is contrary to pleading without proper evaluation of the totality of evidence on it and indeed the second issue, whether or not there is sufficient evidence on record for the trial Court to have held that the plaintiff/appellant has received compensation in respect of the land in dispute and therefore divested of his title to the land is more or less a question as raised in issue (3) of whether or not the trial Court?s findings of fact was perverse or not. The appellant?s issues (1), (2) and (3) will therefore all be taken together.
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I have gone through the entire records of proceedings with particular

concentration on the actual hearing, addresses of counsel and the judgment of the trial Court as contained at pages 269-322 and 333-342 of the printed records.

First it is important to point out that the claim of the appellant before the trial Court was for a declaration for title and special and general damages for destruction of economic plants and trespass. The issues submitted to the trial Court for resolution by the 2nd respondent in particular are:-
?1) Whether the lower Court rightly accepted and acted on the evidence elicited from the appellant under cross examination which showed that the appellant has received compensation in respect of the land in dispute.
2) Whether the appellant proved his case before the lower Court to warrant setting aside the decision of the lower Court by this Court

Curiously, this first issue was also the first of four issues submitted to the lower Court for determination by the 2nd defendant/respondent. I have had a preview of the pleadings of the 2nd defendant contained at pages 59-61 and the witness statement of its sole witness Doris Chukwuma, DW1 contained at pages 64-66. I see nothing

contained therein in respect of payment of compensation by any party to the plaintiff/appellant. The law is very well settled that unpleaded facts elicited in cross examination go to no issue and constitute inadmissible evidence. See OLORA V ADEGBITE (2013) 1 NWLR, PT 1334, 40; CITEC INTERNATIONAL ESTATES LTD V YUSUF & ANOR (2016) LPELR ? 40207 (CA) and PRESIDENTIAL IMPLEMENTATION COMMITTEE. In the case of SHITTU & ORS V FASHAWE (2005) 14 NWLR, PT 946, 671, the Supreme Court held that where inadmissible evidence has been wrongfully admitted and acted upon and whether or not the opposing party objects, an appellate Court has the duty to exclude such evidence and decide the case only on the legally admissible evidence. See also OLAYINKA V STATE (2007) 9 NWLR PT 1040, 561 and BAKO V STATE (2018) LPELR ? 44479 (CA). On the strength of these authorities, it is my duty to and I do hereby expunge the said piece of evidence which showed that the appellant received compensation in respect of the land in dispute.
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This takes us to issues (i), (ii) and (iii) of the appellant which I have indicated would be considered together. What cuts across

these three issues to my mind is issue (iii) which is whether the decision of the Court was perverse. A decision or finding of Court is said to be perverse ?when it runs counter to the evidence and pleadings or where it has been shown that the trial judge took into account matters which he ought not to have taken into account or shuts his eyes to the obvious, or when such a decision has occasioned a miscarriage of justice, or when the circumstances of the findings of facts in the decision are most unreasonable?. See: KAKULU V KAKULU (2016) LPELR ? 41552 (CA), MAZANG V MASHINKPEN & ANOR (2018) LPELR ? 46144 (CA) and MAMONU & ANOR V DIKAT & ORS (2019) LPELR ? 46560.

The pleading and evidence of the plaintiff/appellant before the trial was for a declaration for title, damages for trespass, special and general damages for destruction of economic trees. In proof of his case the appellant called five witnesses and tendered six exhibits. Instead of the trial judge to evaluate these pieces of evidence to determine whether or not the appellant had proved his case, he abandoned this primary duty and hinged his finding on

the fact that the appellant had been paid compensation as a result of an answer that was elicited from the appellant in cross examination? The learned trial judge shut his eyes to the obvious and in the most unreasonable way imaginable found that as a result of payment of the compensation the appellant had been divested of his title to the land in question and dismissed the plaintiff/appellant?s claim. This is in spite of the fact that the two defendants/respondents never counter claimed for the land. The 2nd defendant does not lay any claim to the land as their position is simply that they leased the disputed land from the 2nd defendant. The 1st defendant filed a statement of defence as contained at pages 180-186 of the printed records. This process was filed on the 8th January, 2014 by one Arojo Victor Ibukun Esq, ostensibly a lawyer. The plaintiff/appellant filed a reply to this pleading as evidenced at pages 198-201 of the records. On the 12/04/2016, the plaintiff/appellant closed his case (see page 282 of the record). On the said date the 1st defendant/respondent was sworn to testify. He informed the Court that he wanted to ask for an adjournment

and later elected to defend himself. Then the Court and the 2nd defendant/appellant?s counsel intervened. For a better appreciation I reproduce the said proceedings:
?DW1 1st Defendant: Pastor Joseph Adeolu Olafasan Anisere sworn on Holy Bible and speaks in Yoruba Language.
1st Defendant tells the Court that he wants to apply for adjournment to enable his Lawyer to come and handle the defence for him. He says again that he can handle the defence by himself and he prepared to go on. After it was explained to him by the Court that there are two written statement on oath filed by his Lawyer for him and it is only the Lawyer who would know which one the witness will rely upon. He was advised to go and consult his lawyer. 1st Defendant insisted that he would like to go on with this case.
Mr. Umeche rose up as a friend of the Court that the court should adjourned to enable 1st Defendant who may not know the Legal implication of what he is doing. I was explained to 1st Defendant he then agreed to apply for adjournment.
1st Defendant to Court: I apply for adjournment Mr. Adeboye is not opposing the application of 1st Defendant for

adjournment.
Mr. Umeche is not opposing the application.
Court: By agreement of all counsel, this, suit is adjourned to Thursday the 26th day of May, 2016 for further hearing.”

The matter was eventually adjourned to 26/05/2016 for further hearing. On the said date the following transpired:
?J. A. Adeboye appears for Plaintiff with him W. L. Adeboye (Mrs.)
Olawale Adeniyi Esq. appearing for the 2nd Defendant with him Ilias Kazeem.
(Prince M. A. Adeyemi applies for leave to appear) for the 1st Defendant
No legal representation for 1st Defendant says I am not with the case file and that the 1st Defendant (has disengaged Mr. I Arojo as Counsel for him only Yesterday).
Court: M. A. Adeyemi cannot be heard as necessary application for change of counsel is not before me. Leave is hereby refused.
FURTHER HEARING
DW1 Continues: I did not tell my Lawyer to file any statement on oath at anytime.
Court to Witness: Did your Lawyer ask you to sign any statement on oath at anytime.
DW1 to Court: My Lawyer asked me to sign a Written Statement on Oath but I did not sign any Written Statement on Oath (Written

Statement on Oath with signature shown to him) not sign the Written Statement on Oath shown to me or any other Written Statement on Oath.
Court: Since the witness has not signed any Written Statement on Oath, he has no business testifying in the witness box as Rules of this Court will not allow him to do so. The witness in the circumstances cannot be cross examined. He is accordingly discharge from the witness box.?

I am still perplexed as to the attitude of the learned trial judge who went into the arena in this manner. There is definitely more than meets the eye but I restrain myself from making any comment on this attitude at this stage.

From the authorities cited and all the surrounding circumstances of this case, I hold that the findings of the lower Court in this case are totally perverse and liable to be set aside.
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Issue (iv) of the appellant?s issues question whether or not the address of counsel can take the place of evidence. I was on first instinct going to strike out this issue as not being distilled from any of the grounds of appeal until I read the submissions on the issue. I then discovered that the title or

caption of the issue belies counsel?s submission. The issue with respect should have been properly captioned ?whether evidence not pleaded but elicited/extracted during cross examination is admissible.?

Having already resolved this issue submissions of counsel hidden under a wrong issue are acknowledged.
The other issue left for determination is the 2nd defendant/respondent?s issue (2):
?Whether the appellant proved his case before the lower Court to warrant setting aside the decision of the lower Court by this Honourable Court?”

I had already stated earlier on in this judgment that this appeal will be considered on the issues formulated by the appellant not only because he filed the appeal but because this issue is the flip side of the issue raised by the appellant in his issue (iii). This is because it is only a perverse finding that will justify the setting aside of the judgment of the trial Court. Also if like I have found in this judgment, the finding of the trial Court is perverse, I would need to evaluate the evidence on record to find out if the appellant?s claim is proved to entitle me

enter judgment in his favour as urged.

As stated clearly in the reliefs of the Plaintiff/appellant he seeks a declaration that he as representative of Ajibola Section of Olafasan family of Onilearan Compound Modakeke-Ife is entitled to a statutory right of occupancy over a parcel of land situate, lying and being at Oluwada Titi Village.

18 and NDUKUBA V IZUNDU (2007) 1 NWLR PT 1016, 432.

By paragraphs 4, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16 and 17, the plaintiff averred on the traditional history of the land. Under cross examination the second witness stated that the farm land in question belongs to his senior brother, the father of the plaintiff/appellant. This is after giving evidence in chief through his witness statement contained at pages 22-24 of the printed records particularly paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of his witness statement. PW2 is in fact the current head of the Olafasan family. The plaintiff?s late father Ajibona was his brother while the 1st defendant?s late father Kazeem Anisere was his brother but the 1st defendant in his mother?s last born. PW3, Lamidi Anisere is the older brother to the 1st defendant. He gave evidence along the same line so did PW4, Rufus Taiwo Anisere who is a full brother to the 1st defendant. And so did PW5, the plaintiff/appellant. The plaintiff?s witnesses apart from PW1 the surveyor are all related and they all live on the same vast Olafasan family land according to families, with some of them having

direct boundaries with the plaintiff/appellant. They all have the same land history for their own parcels of land. Their evidence was unshaken in cross examination and credible. The evidence of the plaintiff/appellant through his witnesses remained uncontroverted and uncontradicted. What is more the plaintiff/appellant tendered through PW1, Exhibit A and the dispute survey plan. This dispute survey plan shows the land in dispute, the Ajibola farmland with the Ife-Ilesa expressway running through it. This was the road for which the appellant was paid compensation that the learned trial judge held to mean he had been divested of the land. The plan also shows the land of the 1st defendant and all the boundaries as testified to by the plaintiff/appellant and his witnesses. A plaintiff who claims a declaration of title to land has the burden of setting out clearly by who and how the land was founded and the names of persons who had exercised acts of ownership on the land before it devolved upon him. OLOKOTINTIN V SARUMI (2002) 13 NWLR, PT 784, 307. The plaintiff through his own testimony corroborated by the testimonies of three other witnesses PW2, PW3 and PW4

traced or set out very clearly how the land in question, a virgin land was given to their progenitor Olafasan who begat Oseni Tokun, Kareem Anisere, Ajibola Olafasan and Johnson Olagboye as male children among whom the land was divided. That Ajibola begat the plaintiff. That since, Ajibola died in 2004, the plaintiff took possession of the land and has been farming it ever since. That Kareem Anisere begat the 1st defendant who shared Kareem?s portion with his other brothers. Exhibit A clearly shows Oseni Tokun and Anisere farmland, apart from Ajibola, the plaintiff?s farmland. Again the plaintiff/appellant has shown satisfactorily that his plan corresponds with the land to which he lays claim. See ONWUCHEKWA V EZEOGU (2002) 18 NWLR, PT 799, 333.

The 1st defendant has not tendered any counter dispute plan to that of the plaintiff/appellant. Indeed the 1st defendant has not led any evidence in support of his pleadings. It has long been settled that where a defendant as in the instant case fails to give evidence in support of his pleadings or in challenge of the evidence of the plaintiff he is deemed to have accepted and rested his case on the

facts adduced by the plaintiff notwithstanding the general traverse. That is to say that averments in pleadings on which no evidence is adduced are deemed to have been abandoned and do not constitute proof of such facts unless such facts are admitted. See:IFETA V SPDC (NIG) LTD (2006) 8 NWLR, PT 983, 585; AKINBADE & ANOR V BABATUNDE & ORS (2017) LPRELR ? 43463 (SC) and ONUBE V ASUAKOR & ORS (2019) LPELR ? 47231 (CA).

Furthermore it is the law that where the evidence of a party is unchallenged and uncontroverted and it establishes the claim of that party the Court ought to act upon such evidence. See: NGOKA V IFEZUE & ORS (2016) LPELR ? 41312 (CA); MTN V CORPORATE COMMUNICATION INVESTMENT LTD and the celebrated case of OMOREGBE V LAWANI (1980) 3-4 SC, 108. I am also satisfied that the plaintiff/appellant whose reliefs are mainly declaratory has by his evidence before the Court, both oral and documentary attained the level of proof which does not recognize admission. There was no admission from the 1st defendant/respondent in this case in any event.
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The defence of the 2nd defendant throughout this trial is that they

validly leased the land in dispute from the 1st defendant. They claimed to have carried out a search. If they had properly done so they would have found that the 1st defendant does not own the land. Or is it that they got a better deal with the 1st defendant than they knew they would have gotten from the real owner as is often the case in this kind of situations? Whatever the situation in the face of the evidence before the trial Court the doctrine of ?nemo dat quod no habet? is applicable in this circumstance. The 1st defendant has no title or interest like a caretaker etc in the property. He therefore has no power to lease the property to them. The 2nd defendant/respondent therefore has no valid defence in this suit.

Having found in this judgment that that the findings and decision of the trial Court is perverse, I am obliged to and I do hereby set it aside. Pursuant to the powers conferred on me by SECTION 15 of the Court of Appeal Act, 2004 and having evaluated the evidence on record of the lower Court very carefully, I am satisfied that the plaintiff/appellant has on the balance of evidence proved his claim and is entitled to judgment.

Consequently I enter judgment in favour of the plaintiff/appellant as follows:-
?(a) A declaration that the plaintiff as representative of Ajibola section of Olafasan family of Onilearan Compound Modekeke-Ife is entitled to the Statutory right of Occupancy over a parcel of land situate, lying and being at Oluwada Titi Village and bounded as follows:
On the 1st side by Lamide Anisere/Land granted to Joseph Olaniyi by Olafasan, on the 2nd side by Land granted to Ajala by Olafasan, on the 3rd side by Oseni Tokun farmland, on the 4th side by Oloparun Stream/Ojo Ibaba farmland.
(b) A declaration that the erection of the 2nd Defendant?s communication mast Tower on the plaintiff?s land situate at Oluwada Titi Village and bounded as follows:- on the 1st side by Ilesha/Ife Express Road, on the 2nd, 3rd and 4th side by the plaintiffs farmland is illegal and unconstitutional.
(c) A declaration that the 1st Defendant not being a member of Ajibola section of Olafasan family has no right, or authority to lease the plaintiff?s land to the 2nd defendant and as such the purported lease of the plaintiff?s land by the 1st

defendant to the 2nd defendant is illegal, null and void.?

In respect of the claim for special damages I have looked at the items very carefully. The traditional position of the law on special damages is that it has to be specially pleaded and strictly proved. In other words, not only is there no room for inference by the Court, there has to be compelling evidence to justify its award. NNPC V KLIFCO (NIG) LTD (2001) 10 NWLR, PT 1255, 209; APUGO & SONS LTD V OHMB (2016) LPELR ? 40598 (SC) and TEC ENGINEERING COMPANY NIG LTD & ANOR V AUWALU SALISU (2018) LPELR ? 46654 (CA). In the instant case, the evidence led by the plaintiff/appellant does not lend itself to the actual quantity and value of the crops destroyed; it is merely evidence at large which is not credible evidence required in proof of special damages. The evidence does not itemize the exact quantity of each kind of crop and their value at the stage they were destroyed. I find in the circumstances that the plaintiff?s claim for special damages fails. I accordingly dismiss it.
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I am however satisfied that the parcel of land in dispute was a farm land. The

unequivocal evidence of the plaintiff/appellant?s witnesses, PW2, PW3, PW4 and PW5 show that the 2nd defendant?s bulldozer went on the land to clear the place for their mast and in the process destroyed the plaintiff/appellant?s crops planted on the land. These included palm trees, cocoa trees, orange trees and cassava. I assess general damages at N3 ,000, 000 for these destroyed crops.

The 2nd Defendant?s mast has been on the plaintiff/appellant?s land illegally since January 2010. I hereby declare that the plaintiff is entitled to rent for such usage from the 2nd defendant. The plaintiff/appellant did not lead any evidence of trade usage of the rent paid for these kinds of mast to enable an objective assessment of the rent. I find however that N4, 000 ,000 per annum is a reasonable rent in the circumstances. I therefore order the 2nd defendant to pay the plaintiff/appellant rent from January 2010 at the rate of N4, 000, 000 per annum till this year 2019.
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A further order is also hereby granted directing the 2nd defendant to remove its Communication Mast Tower erected on the plaintiff/appellant?s land forthwith.

This order is however without prejudice to any amicable agreement the plaintiff/appellant may enter into for the continued hoisting of the mast in the same position on the plaintiff/appellant?s land.

An order of perpetual injunction is hereby granted restraining both defendants by themselves, agents, servants, privies or assigns from further entering and or committing further acts of trespass on the plaintiff?s land as identified in this judgment.

Finally, the plaintiff/appellant claimed N2,000,000 as solicitor?s fees for the prosecution of this case. The plaintiff/appellant pleaded this in paragraph 36 of his statement of claim filed on the 11/06/2012. He also gave evidence of this in his witness statement and under cross examination he stated how the money was paid to his lawyer in installments. He tendered Exhibit D in support. I am satisfied that this item of claim has been proved on a balance of evidence and it is reasonable considering that the matter was filed in June 2012 but judgment was only entered in October 2016, a period of four years. It is progressive to note that our law has moved from GUINNESS (NIG) PLC V NWOKE

(2000) 15 NWLR, PT 689, 135 when such a claim was said to be unknown to law to the more dynamic posture of our Courts in the more recent cases of LONESTAR DRILLING NIG LTD V NEW GENESIS EXECUTIVE SECURITY LTD (2011) LPELR ? 4437 (CA) and NAUDE & ORS V SIMON (2013) LPELR ? 20491 (CA) where such claims are granted if properly pleaded and proved. The instant case falls into this latter category of legal dynamism. I therefore award N2,000, 000 in favour of the plaintiff/appellant for money paid to his solicitors for the prosecution of this case as claimed.

This appeal therefore succeeds and it is allowed as aforesaid in this judgment.
I assess costs at N200,000 in favour of the appellant against the respondents.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that the appeal be allowed as decreed in the lead judgment of Patricia Ajuma Mahmoud, JCA.

My Lord, had in its draft form availed me the benefit of her lead conclusions rightly arrived at findings and that the evidence elicited in cross – examination, being one not emanating from any pleadings could not ground a reason for the finding of declaration

of title on the ground that compensation had been paid to the claimants by the Government or any third party already. Such third party was not a party to the case and no evidence existed. It was not the case of the Respondents, as defendants, either!

I concur that the judgment hinged, as it were, upon this ultimate reason for the decision, makes the judgment, perverse. It is, accordingly, set aside as perverse.

I concur that in exercise of this Court’s powers under Section 15 Court of Appeal Act, 2004 the claims of the Plaintiffs as testified to, and uncontroverted be granted.
Accordingly, I endorse all the declarations and consequential orders relating damages awarded and costs as made in the lead judgment.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: Having read the lead judgment delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA hold the opinion that the issues raised in the appeal were judicially and judiciously tackled by my learned brother with my concurrence of the reasoning and conclusion arrived at.

The appeal therefore succeeds and allowed by me as done in the lead judgment.

The consequential order of costs assessed at N200, 000.00 in favour of the Appellant against the Respondents abide by me.

Appearances:

Mr. J.A. Adeboye with him, Mr. Michael OlajideFor Appellant(s)

Mr. O.O. Adebiyi for the 2nd RespondentFor Respondent(s)

Appearances

Mr. J.A. Adeboye with him, Mr. Michael OlajideFor Appellant

AND

Mr. O.O. Adebiyi for the 2nd RespondentFor Respondent

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