EREBOR & ANOR v. ERAMEH & ANOR

EREBOR & ANOR v. ERAMEH & ANOR

(2020)LCN/14041(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/B/465/2014

Before Our Lordships:

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

1. MR. AUSTIN OSAWETOR EREBOR 2. MRS. EVELYN EBUDO NWAIGWE APPELANT(S)

And

1. DR. WAZIRI ERAMEH 2. MRS. URHO ERAMEH RESPONDENT(S)

RATIO

THE PRIMARY DUTY OF THE TRIAL COURT

In law, the duty of a trial Court to consider, appraise, review and evaluate all relevant and admitted evidence, whether oral or depositions and or documentary, placed before it before arriving at its findings and decision is a paramount as well as a sacrosanct one which cannot under any guise be abandoned or jettison by a trial Court. Thus, where a trial Court fails in this duty then it fails it its entire duty of impartial adjudication between the contending parties before it and the appellate Court if so moved is under a bounden duty to intervene to evaluate the evidence as in the record and make relevant findings and reach appropriate decisions as borne out by the evidence in the interest of justice to the parties. SeeOlufosoye V. Olorunfemi (1989) 1 SC (Pt. 1) 29. See also Tangale Traditional Council V. Fawu (2001) 17 NWLR (Pt. 742) 330 @ pp. 335 – 336.

Thus, it is now elementary that evaluation of evidence would entail and demand that the evidence proffered by the parties are assessed, appraised and weighed impartially on the imaginary scale of justice by the Court so as to give probative value or quality to it and there must be on the record, and very importantly too, how the Court arrived at its choice of preference of one piece of evidence to the other. It cannot just be merely a product of the whims and caprices of the judge. No! He must show on record his reason for so doing. See Alake V. State (1992) 9 NWLR (Pt. 265) 260. See also Dantiye & Anor V. Kanya & Ors (2008) LPELR – 4021 (CA); Afemai Microfinance Bank Ltd V. Seacos Nig. Ltd (2014) LPELR – 22583 (CA). PER GEORGEWILL, J.C.A.

ACTION FOR DECLARATION OF TITLE TO LAND

My lords, in law where the principal claim of a Claimant, such as the Respondents, or the counter – claim of a Defendant, such as the Appellants, is for declaration of title to land, perpetual injunction and damages for damages for trespass, it immediately puts in issue the title of the parties to the land in dispute and therefore, each of the parties claiming title to the land in dispute bears the burden of proving title to the land in dispute and their entitlement to the other reliefs claimed. See Amakor V. Obiefuna (1974) 3 SC 67. See also E.A.N. Nwokafor & Ors V. Mrs. Ifeyinwa Nworji Agumadu (2008) LPELR – 4065 (CA); Idesoh V. Ordia (1997) 3 NWLR (Pt. 499) 17. PER GEORGEWILL, J.C.A.

FACTORS TO ESTABLISH PROOF OF TITLE TO LAND IN AN ACTION FOR DECLARATION OF TITLE

Thus, in the light of the issues joined by the parties in their pleadings, each of the parties in order to succed must prove their title to the land in dispute by credible evidence by means of one or more of the five methods of proof of title to land, namely: a. Evidence of traditional history of title; b. Production of genuine and valid documents of title; c. Numerous acts of ownership; d. Acts of possession over a long period of time, or, e. Acts of possession of adjacent land long enough to make it probable that the owner of the adjacent land is also the owner of the land in dispute. It follows therefore, that any of the parties on record that fail to discharge this burden must have their claim or counter – claim to title to the land in dispute dismissed. See Idundun V. Okumagba(1976) 6 – 10 SC 48. See also Arum V. Nwobodo (2013) ALL FWLR (Pt. 688) 870 @p. 893; Nruamah V. Ebuzoeme (2013) ALL FWLR (Pt. 681) 1426; Kano V. Maikaji (2013) ALL FWLR (Pt. 673) 1856 @ pp. 1868 – 1869; Ojah V. Eviawure (2000) FWLR (Pt. 57) 163; Okorie V. Onyejewu (2001) FWLR (Pt. 41) 1820; Morenikeji V. Adegbosin (2003) 8 NWLR (Pt. 825) 612; Egbo V. Agbara (1997) 1 NWLR (Pt. 481) 293 @ p.303; Ani V. Ewo (2004) 1 SC (Pt. 11) 115 @ p. 133; Romaine V. Romaine (1992) NWLR (Pt. 235) 650.
In Ezukwu v. Ukachukwu (2000) 1 NWLR (pt 642) 657 @ p. 679 it was reiterated inter alia thus:
“A claimant of title to land, of course, need not rely on more than one of the five methods. No. Where, however, he relies on a pleaded method or way as a root of his title, then, if the pleaded root fails the alleged acts of ownership or possession derivative of the root necessarily ought to fail. Why? Because the title or the root of title needs must be, firstly established before the exercise of the rights of ownership may be exercisable.”PER GEORGEWILL, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACT BY THE TRIAL COURT

It is also the law that an appellate Court which had not seen the witnesses testify and observed their demeanor in the witness stand should respect the views of the trial Court and not to readily substitute its own views for that of the trial Court except where it is shown that the conclusion or finding reached by the trial Court was perverse and for this an appellate Court will readily intervene to re-evaluate the evidence in the printed record if it is shown that the conclusions reached or findings made by the trial Court on the proved evidence before it do not flow from such proved facts or runs contrary to such proved facts and thus perverse. In such a case, the appellate Court is in good a position as the trial Court to intervene to re-evaluate the evidence in the printed record to draw necessary inference and make proper findings on the proved and admitted facts in the record as the justice of the case requires but which the trial Court had failed to do. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ P. 19. See also Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @ 992; Sogbamu V. Odunaiya (2013) All FWLR (pt. 700) 1249 @ P. 1302; Mini Lodge V. Ngei (2010) All FWLR (Pt. 506) 1806 @ Pp. 1820 -1821; Sa’eed V. Yakowa (2013) All FWLR (Pt. 692) 1650 @ P. 1681. PER GEORGEWILL, J.C.A.

FAILURE FOR A CLAIMANT TO SATISFY THE COURT ON HIS PROOF OF TITLE TO LAND

It is also the law, and there is no dispute about it, that although a Claimant to title to land, as well as a Counter – Claimant to title to land, is not required to prove more than one of the five ways of proof of title to land, where he fails to satisfy the Court on any one or more of the five ways he relies on then his claim to title to land must fail. See Idundun V. Okumagba (1976) 9 – 10 SC 27. See also Chief Elemoro & Anor Vs. Chief Abiodun (2014) LPELR 23195; Piaro V. Tenalo (1976) 12 SC 31 @ p. 37; Dabo Vs. Abdullahi (2005) LPELR – 903 (SC). PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Edo State, Coram: A. Edodo – Eruaga J., in Suit No. B/338/2005: Dr. Waziri Erameh & Anor V. Mr. Austin Osawetor Erebor & Anor., delivered on 4/6/2014, wherein the claims of the Respondents as Claimants were granted against the Appellants as Defendants, while the counter – claim of the Appellants against the Respondents were dismissed for lacking in merit.

The Appellants were peeved with the said judgment and had appealed against it to this Court vide their Original Notice of Appeal filed on 4/6/2014 on one ground of appeal at pages 385 – 386 of the Record of Appeal. The Record of Appeal was duly transmitted to this Court on 18/11/2014. With the leave of this Court the Amended Notice of Appeal was filed on 23/4/22015 on eleven grounds of appeal. The Appellants’ brief was filed on 23/6/2015 but deemed properly filed on 3/11/2015. The Respondents’ brief was filed on 3/3/2016 but deemed properly filed on 5/12/2016. The Appellants’ Reply brief was filed on 20/3/2017 but deemed

properly filed on 7/6/2017.

At the hearing of this appeal on 29/1/2020, Mrs. H. I. Agonkonkon, learned counsel for the Appellants adopted the Appellants’ brief and the Reply brief as their arguments and urged the Court allow the appeal and set aside the judgment of the Court below. On his part, E. Iluemnosen Esq., learned counsel for the Respondents adopted the Respondents’ brief as their arguments and urged the Court to dismiss the appeal and to affrim the judgment of the Court below.

By a Writ of Summons filed on 27/5/2005, and an amended Statement of Claim filed on 2/11/2006 before the Court below the Respondents as Claimants claimed against the Appellants as Defendants jointly and severally the following reliefs, namely:
1. A declaration that the plaintiffs are the rightful owners of All That parcels of land measuring 200ft by 370ft and covering an area of approximately 6562.463 square meters lying and situate at Ward 36/A Ugbor Village, Benin City more particularly marked and delineated in Survey Plan No MSC/ED96/81 attached to the Certificate of Occupancy No. EDSR 15043 dated 3/3/2005, registered as No 15 at Page 15 in

Volume B227 of the Lands Registry in the office of Benin city granted to the Plaintiffs by the Executive Governor of Edo State and more particularly delineated in BLUE in Amended Litigation Survey Plan No. JAO/ED2006/265L dated 5/10/2006 filed along with this claim.
2. An order of perpetual injunction restraining the Defendants, their heirs, assigns, privies, servants and/ or agents from further or any other form of trespass or interfering or meddling with the Plaintiff’s proprietary right over the land.
3. The sum of N5, 000,000 only being special and general damages for Trespass and malicious damage and destruction of the Plaintiff’s wall fence (particulars of which are contained hereinafter) without any lawful excuse whatsoever.
Total Amount Claimed As Special Damages – 421,000.00
Total Amount Claimed as General Damages for trespass – 4,579,000.00
Grand Total (1) and (2) – 5,000,000.00
See pages 145 – 148 of the Record of Appeal.

Upon service, the Appellants filed their Statement of Defence and Counter – Claim against the Respondents claiming the following reliefs, namely:
1. A declaration that the 1st Claimant by

Counter-claim is the rightful owner of All That parcel of land measuring 400ft by 400ft being and situate at Ward 36A, Ugbor Village Area of Benin City, more particularly marked and delineated in Certificate of Occupancy No. EDSR 12374 of 29/5/96 covering the said land and the Defendants’ Litigation Plan in this suit.
2. An Order of perpetual injunction restraining the Defendants by Counter-claim, their heirs, assigns, servants and/or agents from any form of trespass or interfering or meddling with the Claimants by Counter-claim proprietary rights over that land.
3. An Order of Court on the Claimants to refund to the 1st Claimant by Counter – claim, the N1, 000,000.00 they illegally collected from Paul and Vincent Odiase (father and son) and erstwhile Defendants in this case as the land over which the said N1, 000,000.00 was collected belongs to the 1st Defendant.
4. General damages.
See pages 153 – 155 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
At the Court below, the parties filed and exchanged pleadings, which were subsequently amended with the leave of Court and the matter proceeded to trial. At the trial the parties

called witnesses in proof of their respective cases and tendered some documents in evidence as Exhibits. The Respondents as Claimants called six witnesses, who testified as CW1 – CW6, while the Appellants as Defendants/Counter Claimants called three witnesses, who testified as DW1 -DW3.At the close of hearing, counsel for the parties filed their respective final written addresses, which were subsequently adopted by them, and on 4/6/2014, the Court below delivered its judgment granting the claims of the Respondents as Claimants against the Appellants as Defendants, while dismissing the counter – claim of the Appellants as Defendants/Counter Claimants against the Respondents as Defendants by counter – claim, hence this appeal against the said judgment. See pages 350 – 384 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellants’ brief, seven issues were distilled as arising for determination from the eleven grounds of appeal, namely:
1. Whether the Court below was not in error when it resorted to the biblical King Solomon’s formula, 1st Kings 3:25 of the Holy Bible and shared the overlap portion of land in dispute into two

halves for each of the parties instead of applying the principle of priority of interest to determine ownership of same?
2. Whether the Court below did not err in law by importing extraneous matters into the judgment by her application of the so-called solomonic principle of “no victor no vanguished”?
3. Whether from the totality of evidence before the Court below, the award of N3,000,000.00 as general damages against the Appellants in favour of the Respondents without any justification whatsoever by the trial Judge is right and sustainable in law?
4. Whether the Respondents have sufficiently proved their special damages as required by Law to be entitled to the sum of N421,000.00 as claimed by the Respondents and awarded by the trial Judge in their favour?
5. Whether the learned trial Judge was right in awarding N3,000,000.00 as general damages to the Respondents where loss (if any) can be quantified?
6. Whether the Court below was not wrong in law when the Court below based her judgment largely on the pleadings rather than on the evidence before the Court below?
7. Whether the Court below was right in dismissing the Appellants’

counter – claim in its entirety having found from the evidence adduced before Court below that the 1st Appellant has a plot measuring 400ft by 400ft, albeit contiguous to the Respondents’ claimed land?

In the Respondents’ brief, five issues were distilled as arising for determination in this appeal, namely:
1. Whether the Court below was in error in granting the Respondents’ Claims and dismissing the Appellants Counter-claim considering the state of pleadings and evidence led before it? (Distilled from Grounds 1, 5, 6, 8 and 10)
2. Whether having regard to evidence on record the Court below was in error sharing the overlap portion of land between the Appellants and Respondents? (Distilled from Grounds 2 and 9)
3. Whether from the totality of evidence before the Court below the award of N3. 000, 000.00 as general damages was not justified in law? (Distilled from Ground 4)
4. Whether the Respondents have not sufficiently proved their special damages as required by law to be entitled to the sum of N421, 000. 00 claimed and granted by the Court below? (Distilled from Ground 3)
5. Whether the Court below did not appraise,

assess and evaluate the evidence of both parties vis-a-vis their pleadings before reaching its decision? (Distilled from Grounds 6, 9 and 11).

I have taken time to review the pleadings of the parties and the evidence, both oral and documentary, as led by the parties before the Court below. I have also considered the submissions of counsel for the parties in their respective briefs in the light of the findings in the judgment of the Court below, and it does appear to me that the proper issues for determination in this appeal are the five issues as distilled in the Respondents’ brief, which best represent the real issues arising for determination in this appeal. It is my view that a consideration of these five issues would involve the due consideration of the seven whooping issues as distilled in the Appellants’ brief. However, I shall consider issues one, two and five together first and resolve them in one fell swoop and thereafter, I shall consider issues three and four together and also resolve them in one fell swoop and bring this judgment to a close!

ISSUES ONE, TWO AND FIVE (TAKEN TOGETHER)
Whether the Court below was in error in

granting the Respondents’ Claims and dismissing the Appellants Counter-claim considering the state of pleadings and evidence led before it, and whether having regard to evidence on record the Court below was in error sharing the overlap portion of land between the Appellants and Respondents, and whether the Court below did not appraise, assess and evaluate the evidence of both parties vis-a-vis their pleadings before reaching its decision?

APPELLANTS’ COUNSEL SUBMISSIONS
On his issue seven, learned counsel for the Appellants had submitted that in law a Counter-claim is a separate and independent action from the action in which it is raised and contended that a Defendant in a land matter who counter – claims to title to the land in dispute is under a duty to prove their title to the land in dispute on a balance of probabilities and preponderance of evidence as required by law and urged the Court to hold that the Respondents who claimed ownership of the land in dispute but failed to lead any credible evidence in proof thereof by means of any of the five ways of proving title to land ought to have their claims dismissed and not granted in

error by the Court below and to allow the appeal and set aside the perverse judgment of the Court below and to enter judgment for the Appellant on their counter – claim against the Respondents. Counsel relied on Idundun & Ors V. Okumagba & Ors (1976) 9 -10 SC 77.

It was also submitted that the 1st Appellant sufficiently proved his title to the land in dispute as required by law as to entitle him to the grant of title to the land in dispute as claimed by him in paragraph 12 (a) of the 2nd Further Amended Joint Statement of Defense and counter – claim and contended that by Exhibit 16, the Oba’s approval, which is evidence of radical title to ownership of land in Benin prior to the Land Use Act of 1978 and Exhibit 17, Certificate of Occupancy in respect of the land in dispute, the Court below was wrong when it held that the Appellant did not prove his title to the land in dispute and urged the Court to hold that the decision by the Court below granting the title to the land in dispute to the Respondents was perverse and not supported by the strength of the evidence led by the parties and to allow the appeal and set aside the perverse judgment of

the Court below and to grant title to the land in dispute to the 1st Appellant as even found as fact by the Court below that the 1st Appellant has a land measuring 400ft by 400ft as claimed in his counter – claim and shown in Exhibits 16, 17 and 21.

It was further submitted that the Court below having found as fact that the 1st Appellant owns the land measuring 400ft by 400ft as proved by Exhibits 16, 17 and 21, cannot in law turn around to hold that the 1st Appellant failed to prove title to the said land and to proceed to award half each of the land in dispute which forms part of the larger area of land measuring 400ft by 400ft as owned by the 1st Appellant to each of the parties and contended that in law the admission of secondary evidence, such as the photocopies of the Respondents’ Oba’s Approval as Exhibits 9, 10, 10a and 10b, being wrong and improper, cannot form the basis of any proper finding of facts in favor of the Respondents in relation to the title to the land in dispute and urged the Court to hold that in such circumstances the Respondents’ claim to title to the land in dispute ought to have been dismissed having not been proved as

required by law and to allow the appeal, set aside the perverse judgment of the Court below and dismiss the claims of the Respondents. Counsel relied on Fidelity Bank Plc. V. Bayiya Ventures Ltd (2012) All FWLR (Pt. 646) 546; Sikwenu V. Iroh (2013) 11 NWLR (Pt. 1365) 256; Taiwo V. Ogundele (2012) All FWLR (Pt. 639) 1033; Ekaidem V. State (2012) All FWLR (Pt. 631) 1587; Ogbogu V. Ugwuegbu (2003) 10 NWLR (Pt. 827) 189; Otukpo V. John (2012)7 NWLR (Pt. 1299) 357.

It was also further submitted that the Court below having found as fact that the only piece of land in dispute is a narrow strip of piece of land which it ordered to be divided between the parties, it was incongruous for the Court below to at the same time find that the Appellants had trespassed into the Respondents’ land and contended that such a finding of trespass against the Appellants was inconsistent with the evidence led by the parties on which the Court below had earlier made its finding of a narrow strip of land as being the only land in dispute and urged the Court to intervene to set aside such a perverse finding and to hold that the Appellants never trespassed into any land belonging to

the Respondents.

On his issue one, learned counsel for the Appellants had submitted that the no victor, no vanquished approach adopted by the Court below to resolve the area in dispute – overlap – verged yellow in parcel D in Exhibit 1and marked green in Exhibit 8 and red in Exhibit 15 between the Appellants and the Respondents has no place in Nigerian legal jurisprudence, wherein there always must emerge a victor and a vanquished after a legal duel and contended that it was apparent from the evidence that the 1st Appellant had acquired his parcel of land measuring 400ft by 400ft and was in possession thereof, part of which was in dispute vide Exhibit 16 earlier in time on 24/6/1972 and had his Certificate of Occupancy in Exhibit 17 on 29/5/1996 while the Respondents purportedly acquired their title on 6/2/92, 10/1/96, 15/2/96 and 10/3/96 vide Exhibits “9”, 10″, “10a” and 10b” dated 15/3/72, 20/5/72, 12/8/72 and 26/10/73 and urged the Court to hold that the Court below ought to have applied the concept of priority of title and or interest as between the title deeds of the parties in resolving the ownership of the land in dispute than erroneously applying

some strange Solomonic principles to share the area in dispute to the parties equally and to set aside the judgment of the Court below and grant title to the land in dispute to the Appellants. Counsel relied on Sarhuna V. Lagga (2002) 3 NWLR (Pt. 754) 322 @ p 341; Kachalla V. Banki (2006) 8 NWLR (Pt. 982) 364 @ p. 384; Alechenu V. Oshoke (2002) 9 NWLR (Pt. 773) 521 @ p. 540.

It was submitted that the 1st Appellant’s vast land measuring 400ft by 400ft on which the earlier judgment in Exhibit 21 was delivered in his favor in 2002 is, contrary to the perverse finding of the Court below, one and the same, part of which was the land in dispute and contended that the CW1 had evasively stated under cross examination that there is an overlap on the Appellants’ land but without tendering the original litigation Survey Plan prepared by him and urged the Court to hold that had the original litigation Survey plan been tendered it would have shown that there was no encroachment on the Respondents’ land by either the Appellants or the 2nd and 3rd Defendants before the Court below and to set aside the finding of trespass made against the Appellants by the Court below

and to dismiss the Respondents’ claim for lacking in merit. Counsel referred to Section 167(d) of the Evidence Act 2011 and relied onAdike V. Obiareri (2002) 4 NWLR (Pt. 758) 537 @ p. 548.

On his issue six, learned counsel for the Appellants had submitted that in law pleadings not backed by evidence goes to no issue since pleadings do not constitute evidence to ground a claim and contended that the Court below had erroneously based its judgment on the pleadings rather than on the evidence led before it by the parties and urged the Court to hold that in law averments of facts in pleadings must be proved by evidence and they cannot therefore, take the place of evidence and to allow the appeal and set aside the judgment of the Court below and grant the proved counter – claim of the Appellants against the Respondents. Counsel relied on Olusanya V. Osinleye (2013)17 NWLR (Pt, 1367) 148 @ p. 153; Eyigebe V. Iyaji (2013) 219 LRCN (Pt. 2)1 @ p. 5.

RESPONDENTS’ COUNSEL SUBMISSIONS
On issue one, learned counsel for the Respondents had submitted that considering the state of the pleadings and evidence led by the parties, the Court below was

right when it found for the Respondents and granted title to the land in dispute to the Respondents, while dismissing the Appellants’ counter claim and contended that the finding was amply supported by the evidence led, the relevant principles of law and/or Judicial authorities and urged the Court to hold that the Respondents duly proved their title to the land in dispute by credible evidence of title documents, acts of possession and ownership of part/adjacent land, which are three of the five ways of proof of ownership of land, as was correctly found by the Court below and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Ufomba & ORS V. Ahuchaogu (2003) 5 FRP 224; Amadi V. Chinda (2009) 10 NWLR (Pt. 1148) 107 @ p. 130.

It was also submitted that the 1st Appellant who had by his own pleadings and evidence admitted having sold the land in dispute, which was not shown to be his own by evidence, to the 2nd Appellant, is in law left with no further legal interest in the land in dispute to protect or defend and contended that the 2nd Appellant, the supposed buyer never participated at the trial before the Court below and

therefore failed to prove any title to the land in dispute verged brown in Exhibit ‘I’ and blue in Exhibit 8′ as land purchased by her from the 1st Appellant and urged the Court to hold that the Court below was perfectly right when it held that the 1st Appellant having, though misguidedly, sold the land to the 2nd Appellant, in law no longer has any right or interest in the said land capable of sustaining a claim to title to such a land. Counsel relied on Amuda V. Ajobo (1995) 7 NWLR (Pt. 406) 170 @ p. 182.

It was further submitted that on both the pleadings and evidence led by the parties there was no issue joined by the Respondents with the Appellants in respect of the 400ft by 400ft land belonging to the 1st Appellant and which by Exhibits 1, 8 and 15 was clearly a distinct and separate land from the Respondents’ land put in dispute by the Appellants and contended that all through the evidence the Appellants admitted that the 1st Appellant’s Oba’s approval did not extend to or cover the Respondents’ land and urged the Court to hold that the Court below was right when it found as fact that the 1st Appellant’s land was distinct

and different from the Respondents’ land in dispute into which as shown by Exhibits 1 and 8, the Appellants clearly strayed and trespassed thereon.

It was also further submitted that the admission of secondary evidence of the Respondents’ Oba’s approval was proper and valid in law in that proper foundation was laid for the admissibility of photocopies of the original stated to have been lost and contended that in law once proper foundation is laid secondary evidence of private document is admissible in evidence and urged the Court to hold that the secondary evidence of the Respondents’ Oba’s approval, which were duly pleaded and relevant, were properly admitted in evidence, as Exhibits 9, 10, 10a and 10b by the Court below upon a considered ruling on the objection of the Appellants’ counsel, and was rightfully acted upon by the Court below and to discountenance the contrary contentions of the Appellants as misconceived and lacking in merit. Counsel referred to Section 89(c) of the Evidence Act 2011.

On his issue two, learned counsel for the Respondents had submitted that the Court below was perfectly correct when

on the strength of the evidence led by the parties and the findings it made thereon it ordered the sharing of the overlap portion of the land between the Appellants and Respondents in that in Exhibits I and 8 the overlap and/or insignificant encroachment on the Respondents’ land at the southern boundary was verged green, while it was verged red in Exhibit 15 is verged red in line with the unchallenged evidence of the PW5, an official of the Ministry of lands and survey, Edo State that while the portion verged red in Exhibit 8, the composite plan, belongs to the Appellants, the portion verged black belongs to the Respondents and that the portion verged yellow and blue are clear encroachment on the Respondents’ land and that the overlap between these lands was negligible as was also testified to by PW1, the licensed Surveyor and urged the Court to hold that in the circumstances of these proved evidence the Court below was right and perfectly correct when it ordered the sharing into two equal halves the area of insignificant encroachment resulting from the overlap between the parties since in the very sound reasoning of the Court below this overlap was

merely technical or genuine error which might not necessarily have been the fault of any of the parties.

It was also submitted that Courts are enjoined to do substantial justice at all times to the parties looking at the circumstance and facts of each case and that the reference by the Court below to the Biblical story of King Solomon, on the face of the proper and exhaustive evaluation of the pleadings and evidence of the parties, was of no moment and contended that there was nothing fatal or unusual in a Court while deciding issues before it to refer to some Biblical injunctions which it finds appropriate and apt to the case under its consideration and urged the Court to hold that the Court below carried out proper evaluation of the evidence led by the parties and arrived at correct finding of facts, notwithstanding the reference to the Biblical story of King Solomon and to dismiss the appeal for lacking in merit. Counsel relied on Donogue V. Stevenson (1932) AC 62, on the neighbor principle of Christ’s teaching in Luke 10:29; Anekwe V. Nweke (2014) All FWLR (Pt. 739) 1154 @ p. 1180.

It was further submitted that by Exhibits I, 8 and 15 it was

clearly established that the Respondents’ land is different from that of the 1st Appellant’s land and that they were at best two separate parcels of land, lying side by side to each other but having an insignificant overlap on the southern boundary of the Respondents’ land where the two lands met, which was established to be a technical error, and contended that in the circumstances, the issue of priority of interest does not arise on the face of the clear admission by the 1st Appellant that his Oba’s Approval does not cover the Respondents’ land and urged the Court to hold that the Court below was perfectly right not to have resorted to and applied the legal principle of priority of interest being not applicable to the case as presented by parties before it and to dismiss the appeal and affirm the judgment of the Court below.

On issue five, learned counsel for the Respondents had submitted that the Court below did carried out a detailed analysis, assessment and proper evaluation of the totality of the evidence and the pleadings of both parties as required of it by law before arriving at its correct findings and final decision that the Respondents

proved their claims and were therefore, entitled to judgment and contended that the Court below having dutifully discharged its adjudicatory duties in line with the requirement of the law and arriving at correct findings of facts, this Court has no business interfering with the correcting findings of the Court below but rather to affirm them and to dismiss the appeal for lacking in merit. Counsel relied on Yusuf V. Adegoke (2008) VOL 157 LRCN 172 @ p. 197. Dakolo V. Rewane – Dakolo (2011) All FWLR (Pt. 592) 1610 @ p. 1637.

APPELLANTS’ COUNSEL REPLY SUBMISSSIONS
In his reply, learned counsel for the Appellants had submitted that in civil proceedings once a party has filed its pleadings and witnesses called in support of his pleadings, he need not be present in Court to give evidence on his own behalf and contended that in law the none testifying by the 2nd Appellant, in the face of the evidence led in support of their joint pleadings, was of no moment and urged the Court to hold, at worst, that it was shown clearly by evidence from both side by virtue of Exhibits 8 and 15 that the overlap between the lands of the 1st Appellant

and the Respondents had not been transferred to any person by the 1st Appellant even without any evidence from the 2nd Appellant, who alongside the 1st Appellant was duly represented by counsel. Counsel relied on Abauul V. Bensu (2003) 16 NWLR (Pt. 845) 59 @ pp 85 – 86.

It was also submitted that in law, Exhibits 1 and 8, which are mere amended litigation Survey Plan and Composite Plan do not confer title to any land on any individual and contended that a composite plan does not even amount to proof of the actual survey of land in dispute and urged the Court to set aside the heavy reliance placed by the Court below on the composite plan, Exhibit 8, and Exhibit 1, an amended litigation survey plan, which is a nullity in the absence of an original litigation survey plan. Counsel relied on Jinadu V. Esurombi Aro (2005) 14 NWLR (Pt. 944) 118 @ p. 199; University of Calabar V. Essien (1996) 10 NWLR (Pt. 477) 225 @ p. 229.

RESOLUTION OF ISSUES ONE, TWO AND FIVE
My lords, issues one, two and five frontally call into question the evaluation of evidence, findings and decisions of the Court below as to whether or not proper evaluations were carried out and

findings flowing from such evaluation arrived at by the Court below and whether or not the decisions arrived at the by the Court below were correct on the face of the state of the issues joined by the parties in the pleadings and the evidence led thereon.

Now, while the Appellants had contended that the Court below did not carry out proper evaluation of the evidence and thereby arrived at wrong findings of facts leading to its perverse decision to dismiss the Appellants’ counter – claim while granting the Respondents’ claim, the Respondents had contended that the Court below did a proper evaluation of the totality of the evidence led in line with the pleadings of the parties and did arrived at proper finding of facts and therefore, reached the correct decisions on the claims and counter claims of the parties in dismissing the Appellants’ counter – claim while granting the Respondents’ claim.

In law, the duty of a trial Court to consider, appraise, review and evaluate all relevant and admitted evidence, whether oral or depositions and or documentary, placed before it before arriving at its findings and decision is a paramount

as well as a sacrosanct one which cannot under any guise be abandoned or jettison by a trial Court. Thus, where a trial Court fails in this duty then it fails it its entire duty of impartial adjudication between the contending parties before it and the appellate Court if so moved is under a bounden duty to intervene to evaluate the evidence as in the record and make relevant findings and reach appropriate decisions as borne out by the evidence in the interest of justice to the parties. SeeOlufosoye V. Olorunfemi (1989) 1 SC (Pt. 1) 29. See also Tangale Traditional Council V. Fawu (2001) 17 NWLR (Pt. 742) 330 @ pp. 335 – 336.

See Alake V. State (1992) 9 NWLR (Pt. 265) 260. See also Dantiye & Anor V. Kanya & Ors (2008) LPELR – 4021 (CA); Afemai Microfinance Bank Ltd V. Seacos Nig. Ltd (2014) LPELR – 22583 (CA).

So as between the Appellants and the Respondents who proved their respective counter – claim and claim to the title to the land in dispute? Was the Court below right when it held that it was the Respondents that proved and were thus entitled to a grant of title and damges for trespass? Did this finding by the Court below flow from the issues as joined by the parties in their pleadings and the evidence led thereon?
In the 2nd Amended Joint Statement of Claim, the Respondents, as Claimants before the Court below, had averred inter alia as follows:
(5) The Plaintiffs avers that they are the rightful owners and persons in possession of ALL THAT parcel of land measuring 200 feet by 370 feet or covering an area of approximately 6562 463 square meters lying and situate at ward 36/A Ugbor Village Area Benin City, withın the jurisdiction of this Hon Court and more particularly delineated in the Survey Plan Number MSC/ED96/81 attached to the Certificate of

Occupancy No EDSR15043 granted to them by the Executive Governor of Edo State on the 3rd of March, 2005 A Certified True Copy of the original of the said Certificate of Occupancy shall be relied on at the trial of this suit.
(6) The Plaintiffs avers that by a Deed of Transfer dated 6th February, 1992, they acquired for valuable consideration a portion of the said parcel of land measuring 100fect by 200feet from one Mr. Friday Oviarobo who was the original grantee of the parcel of land from his Royal Highness, Oba Akenzua II, C.M.G Oba of Benin vide an Oba’s approval The Plaintiffs shall at the trial of this action rely and found upon the aforesaid Deed of Transfer evidencing payment of the purchase price for the said parcel of land.
(7) The Plaintiffs further avers that by Deeds of Transfer dated 10th January, 1996, 15th February, 1996 and 10th March 1996, they acquired for valuable consideration all the remaining portions of the parcel of land measuring 100feet by 200feer, 70feet by 200feet and 100feet by 170feet respectively from one Mr. Aimuamwosa Ehigiegba who was the original grantee from His Royal Highness, Oba Akenzua II C.M.G Oba of Benin

vide the various Oba’s approval. The Plaintiffs shall at the trial of this action rely and found upon the aforesaid Deeds of Transfer evidencing payment of the purchase price for the said parcels of land
(10) The Plaintiffs further avers that their predecessors-in-title aforementioned before transferring the various parcels of land to the Plaintiffs were seised in possessions and exercised acts of ownership on the parcels of land by clearing and allowing neighbors to farm and plant seasonal crops on a part of the land without let or hindrance from anybody and also on the parcels of land were economic crops like palm kernel, cashew trees and bamboo trees.
(14) The Plaintiffs aver that since 1992, they have remained in peaceful and quiet possession of the land without disturbances from anybody and they also exercised acts of possession and ownership by clearing the land, allowing neighbors to continuo to plant seasonal crops on a portion of the land and also maintained the economic trees and bamboo trees.
(19) The Plaintiffs further states that at Ugbor Police Station, the 1st Defendant admitted that he used bulldozer to bulldoze the land and

that he sold a part of the land to Mr. Paul Odiase, Mr. Paul Odiase admitted that he bought same for his son, Mr. Vincent Odiase and Mr. Vincent Odiase is the one that laid the foundation and is raising a structure therein. The Plaintiffs shall rely on Certified True Copies of the 1st Defendant and Mr. Paul Odiase’s statements to the Police at Ugbor.
(20) The Plaintiffs further state that despite police warning, the Defendants, their heirs, servants, privies and assigns disregarded the police warning and continued in their acts of trespass. See pages 142 – 145 of the Record of Appeal.

In the 3rd Amended Statement of Defense and Counter Claim, the Appellants, as Defendants/Counter – Claimants before the Court below, had averred inter alia as follows:
4. The Defendants in defense states that the 1stDefendant is the owner in possession of a piece and parcel of land measuring 400ft by 400ft (1.506 hectares) being and situate at Ward 36A, Ugbor Village Area of Benin City more particularly marked and delineated Survey Plan No. ISO/ED/865/94 of 14/11/94 attached to Certificate of Occupancy No. EDSR 12374 of 29/5/96 covering the said land. The Oba’s

Approval dated 25/7/72. The Defendants shall rely on a Certified True Copy of the Certificate of Occupancy and a copy of the Oba’s Approval of the 1st Defendant at trial.
5. The Defendants are not in a position to admit or deny the averments in paragraphs 12, 13, 18 – 20 and 24, 26 of the Amended Joint Statement of Claim and shall put the Claimants to the strictest proof thereof.
9(a) Defendants aver that Mr. Paul Odiase and Mr. Vincent Odiase did not at anytime trespass on the said land because they purchased the land from the owner who is the 1st Defendant and therefore have legal title to the land. The Claimants have now coerced Mr. Paul Odiase and Mr. Vincent Odiase to re- purchase the land from them even while the case is pending in Court.
(b) Defendants further state that the Claimants have collected the sum of N1,000,000.00 from Mr. Vincent Odiase and Mr. Paul Odiase and withdrawn against them in this case, an action which amounts to contempt of this Hon Court.
12. In addition, the Claimants by Counter-claim aver that the 1st Defendant/ Counter-Claimant is the owner in possession of the aforesaid piece and parcel of land, which is the subject matter of this suit and the 2nd Defendant/Counter-Claimant derived her title from the 1st Defendant/ Counter-Claimant who had alienated same to her. See pages 239 – 241 of the Record of Appeal.
In support and in proof of their averments, the Respondents called six witnesses and tendered several documents in evidence as Exhibits, while the Appellants called three witnesses and also tendered some documents in evidence as Exhibits.

For the Respondents, CW1 was one James Amadin Osazuwa, a registered Surveyor commissioned by the Respondents to produce their litigation survey plan of the land in dispute. He stated that he re-established the boundaries with the two survey plans contained in the Respondents’ Certificate of Occupancy and that of the Appellants. He found that the two parcels of land are almost lying side by side except for the southern boundary where there is an insignificant encroachment which could have been due to technical error or result of mistake.

However, when one of the original Defendants settled with the Respondents he made an amended plan in 2006 as in Exhibit “1”. He stated that the portion verged blue contains the parcels of land belonging to the Respondents and registered as No 15 page 50 volume 227 Lands Registry, while the land verged green indicate the landed belonging to the 1st Appellant and registered as No 12 page 12 volume 8176 at the Lands Registry Benin City. However, the portion verged brown contains the portion the 2nd Appellant encroached upon and totally outside the 1st Appellant’s land but within the Respondents’. The portion verged portion verged blue is the portion encroached on by the 1stAppellant totally outside the 1st Appellant’s, while the portion verged yellow is the little encroachment between the Respondents’ land and the Appellants’ land. Under cross examination stated that there was an insignificant encroachment or overlap between the Respondents’ land and the Appellants’ land but maintained that there was an encroachment by the Appellants into the Respondents’ land.

CW2 was one Friday Oviarobo and he stated that he sold his land measuring 100ft by 200ft to the 2nd Respondent in 1976 and he gave her the Oba’s approval and the receipt of payment, admitted as Exhibit 2. CW3 was one Mr. Aimuamwosa Ehigiegba and he stated that he sold his lands measuring 100ft by 200ft, 70ft by 200ft and 100ft by 170 ft all in the same area at Ugbor Community to the Respondents on 10/1/96, 15/2/96 and on 10/3/96 respectively as in Exhibits 3, 4 and 5. CW4 was one Chief Gabriel Iserenren Imade, a member of Ugbor Community and stated that he went with CW2 and CW3 to point out the land to them when they each applied for land in the Community and when the approval came from the Oba’s Palace, it was handed over to them and that the land he showed to the Appellants was different from the land shown to the Respondents. He was not shaken under cross examination.

CW5 was one Henry Aghedo, a Surveyor with the Ministry of Lands, Survey and Housing. He stated that sometime in May, 2005, his office was asked to carry out a composite survey plan which they did and the letter was admitted as Exhibit “7” while the composite plan was admitted as Exhibit 8. Under cross examination, he admitted that he did not visit the land and did not also produce Exhibit 8. CW6 was one Hon. (Mrs.) Justice Urho Erameh. She stated that on the 6/2/92 she acquired the land measuring 100ft by 200ft from the CW2 who gave her an Oba’s approval but that the original approval got lost and the photocopy was admitted as Exhibit 9. On 10/1/96, 15/2/96, 10/3/96 she said the Respondents acquired from the CW3 the lands measuring 100ft by 200ft, 70ft by 200ft and 100ft by 170ft and were given the Oba’s approvals and receipts acknowledging payment and all the four lands share a common boundary and were thus surveyed together. Subsequently, they applied and

were issued by government the Certificate of Occupancy, admitted as Exhibit 11. They fenced the land while leaving a small portion and installed a still gate. However, on a routine visit to their land on the 16/6/2004, they found part of the wall fence destroyed and the steel gate completely removed and some of the seasonal crops destroyed and a foundation dug on their land and another part a wall had been started. They reported the matter to the Police and subsequently the matter proceeded to Court. However, two of the original Defendants approached them and their matter was amicably settled out of court. She was not shaken under cross examination.

For the Appellants, in their defense and in proof of their counter claim, DW1 was one Onaiwu Idurobo who stated that the 2nd Respondent is his sister while the 1st Respondent is his in – law and that in 1972, the 1st Appellant applied for and was granted 400ft by 400ft land in Ugbor Community and he was one of the pointers that took the 1st Appellant to the land. Under cross examination, he stated that he does not know if the Respondents have a large parcel of land in Ugbor Community but admitted that the CW2 has land in Ugbor. The DW2 was one Esanw Iseghere lyawe, a registered surveyor and he stated that he produced the litigation survey of land in dispute for the 1st Appellant admitted as Exhibit 15 and was shown the land by the 1st Appellant in company of one

Osaheni Uwuigbe, the then Secretary of Ugbor and the DW1. e still intact in their positions. Under cross examination he admitted that the Respondents land is shown on Exhibit 15.

DW3 was one Austin Osawetor Erebor and he stated that in 1972 he was introduced to the elders of the Plot Allotment Committee of ward of Ugbor 36A by his younger brother and upon his application he was granted the land measuring 400ft by 400ft at Ugbor Village, which was subsequently approval by the Oba of Benin and the Oba’s approval as in Exhibit 16 was handed to him. DW2 surveyed the land for him as in Plan No. ISO/ED/865/94 as in Exhibit 18 and he obtained a Certificate of Occupancy as in Exhibit 17 over the land. He enjoyed peaceful possession until 1996 when one Friday Ovenseri trespassed on a section of the land and he sued them and obtained judgment as in Exhibit 21 in his favor in Suit No. B/581/96 and that he owned the land and is entitled to the grant of title to the land as in his counter – claim against the Respondents, who do not own the land but are falsely claiming to own it. Under cross examination he admitted that the Respondents were not parties to Exhibits 18,

19, 20 and 21 but maintained that he acquired the land about nine years earlier than the time the Respondents claimed to have acquired the land. He also admitted that his Oba’s approval as in Exhibit 16 does not cover the Respondents’ land.

It was on the strength of the above pleadings and evidence, both oral and documentary, that the Court below had in its judgment delivered on 4/6/2014, while finding for the Respondents against the Appellants, held inter alia thus:
“….Who as between the parties have proved his/her case on the balance of probabilities or preponderance of evidence….It is my considered view that these Claimants have fulfilled this obligation…The Claimants land is different from that of the Defendants as contained in Exhibit “1”, “8” and “15”…. The 1st Defendant himself in answer to Mr. lluemenasen’s question while under cross – examination said: “It is true my Oba’s approval does not cover the Claimants land”. The DW2 by Exhibit 15 admits that the Claimants land is different from the Defendant’s land. I find and hold that the Claimants land is different from the 1st Defendant’s

land. There is however the issue of the “insignificant encroachment” on the Southern boundary of the Claimants land where the two lands meet… From the testimonies of the CW1 and CW5, it does look to me that this overlap is a technical or genuine error which might not necessarily have been the fault of any of the parties. The area concerned has been described as “minimal and “negligible”. I am unable to award it to any one of the parties as a whole, as it could have belonged to any of the parties. I will however employ the formula of the Biblical King Solomon as in 1st Kings 3:25 and order that that overlap marked in red in Exhibit “15”, green in Exhibit “8”, light green in Exhibit “1” be shared into two equal half and each party to take one half…This Judgment of Idahosa C.J. is unrelated to the land in dispute they are separate and distinct as the Claimants land is from the Defendants. See pages 350 – 384 of the Record of Appeal.

for damages for trespass, it immediately puts in issue the title of the parties to the land in dispute and therefore, each of the parties claiming title to the land in dispute bears the burden of proving title to the land in dispute and their entitlement to the other reliefs claimed. See Amakor V. Obiefuna (1974) 3 SC 67. See also E.A.N. Nwokafor & Ors V. Mrs. Ifeyinwa Nworji Agumadu (2008) LPELR – 4065 (CA); Idesoh V. Ordia (1997) 3 NWLR (Pt. 499) 17.

counter – claim to title to the land in dispute dismissed. See Idundun V. Okumagba(1976) 6 – 10 SC 48. See also Arum V. Nwobodo (2013) ALL FWLR (Pt. 688) 870 @p. 893; Nruamah V. Ebuzoeme (2013) ALL FWLR (Pt. 681) 1426; Kano V. Maikaji (2013) ALL FWLR (Pt. 673) 1856 @ pp. 1868 – 1869; Ojah V. Eviawure (2000) FWLR (Pt. 57) 163; Okorie V. Onyejewu (2001) FWLR (Pt. 41) 1820; Morenikeji V. Adegbosin (2003) 8 NWLR (Pt. 825) 612; Egbo V. Agbara (1997) 1 NWLR (Pt. 481) 293 @ p.303; Ani V. Ewo (2004) 1 SC (Pt. 11) 115 @ p. 133; Romaine V. Romaine (1992) NWLR (Pt. 235) 650.
In Ezukwu v. Ukachukwu (2000) 1 NWLR (pt 642) 657 @ p. 679 it was reiterated inter alia thus:
“A claimant of title to land, of course, need not rely on more than one of the five methods. No. Where, however, he relies on a pleaded method or way as a root of his title, then, if the pleaded root fails the alleged acts of ownership or possession derivative of the root necessarily ought to fail. Why? Because the title or the root of title needs must be, firstly established before the exercise of the rights of ownership may be exercisable.”

My lords, when in an appeal it is alleged

that the judgment appealed against is against the weight of evidence, as in ground one of the amended notice of appeal, it is simply a call on this Court to review and re-evaluate the evidence in the printed record to determine if the Court below properly evaluated the evidence and made correct findings borne out by the evidence as led by the parties. However, it is the law that it is only where the Court below had not properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led, and had thus failed in this primary duty, that an appellate Court would have the legal justification to intervene and re – evaluate the evidence on the printed record in order to make appropriate findings of facts in line with the dictates of justice to the parties. So, until an appellate Court arrives at such a conclusion the need for re – evaluation of evidence does not arise since an appellate Court has no business re-evaluating the evidence and interfering with correct findings of a trial Court. See Williams V. Tinubu (2014) All FWLR (Pt. 755) 200. See also Woluchem V. Gudi (1981) 5 SC. 291; Enang V. Adu (1981) 11-12 SC. 25; Abisi & Ors. V. Ekwealor & Anor (1993) 6 NWLR (Pt. 302) 643.

Thus, even where the appellate Court comes to the conclusion that there is need to re – evaluate the evidence, it must be borne in mind that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, and therefore, once a trial Court discharges that duty on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an appellate Court should not interfere once the conclusions reached is correct, even if the reason turns out to be wrong. This is so because in law an appellate Court is not so much concerned with the correctness or wrongness of the reasons adduced by a trial Court for its decisions or conclusions but rather more concerned with whether the decision reached or conclusion arrived at was correct or wrong; that is the law. See Alhaji Ndayako & Ors. v. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.
It is also the law that an appellate Court

which had not seen the witnesses testify and observed their demeanor in the witness stand should respect the views of the trial Court and not to readily substitute its own views for that of the trial Court except where it is shown that the conclusion or finding reached by the trial Court was perverse and for this an appellate Court will readily intervene to re-evaluate the evidence in the printed record if it is shown that the conclusions reached or findings made by the trial Court on the proved evidence before it do not flow from such proved facts or runs contrary to such proved facts and thus perverse. In such a case, the appellate Court is in good a position as the trial Court to intervene to re-evaluate the evidence in the printed record to draw necessary inference and make proper findings on the proved and admitted facts in the record as the justice of the case requires but which the trial Court had failed to do. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ P. 19. See also Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @ 992; Sogbamu V. Odunaiya (2013) All FWLR (pt. 700) 1249 @ P. 1302; Mini Lodge V. Ngei (2010) All FWLR (Pt. 506) 1806 @ Pp. 1820

-1821; Sa’eed V. Yakowa (2013) All FWLR (Pt. 692) 1650 @ P. 1681.

In dealing with the evaluation of the evidence and the findings and conclusion reached thereon by the Court below in the light of the call on this Court by the Appellants to re-evaluate the evidence on the printed record, three crucial questions must first be answered, namely: a. what is the root of title relied upon by the respective parties from their pleadings and the evidence led thereon?, b. who as between the Respondents, as Claimants, and the Appellants, as Defendants/Counter Claimants, proved title to the land in dispute by credible and cogent evidence as required by law?, and c. whether the Court below was right to have granted title to the land in dispute to the Respondents, while dismissing the counter – claim of the Appellants?

It is the law that once a particular root of title is relied upon in proof of title to land in dispute, it is that root of title that must be proved and therefore, if that root of title as relied upon fails, the claim to title fails also. Thus, once the root of title relied upon fails, then all acts of possession and or ownership purportedly

exercised consequent upon the failed root of title to land cannot sustain a claim of declaration of title to land and would rather become clear acts of trespass on the land in dispute at the suit of the person with a better title. See Regd Trustee of Diocese of Aba V. Helen Nkume (2002) 1 NWLR (Pt. 749) 726. See also Shuakani V. Tippi (2014) LPELR – 24201 (CA) per Georgewill JCA @ pp. 58 – 60.

My lords, having calmly reviewed the pleadings and re – evaluated the evidence, both oral and documentary as led by the Respondents through CW1, CW2, CW3, CW4, CW5 and CW6 and as led by the Appellants

through DW1, DW2 and DW3, I have no difficulty holding firmly that the findings by the Court below on all the issues in contentions, save the finding and award of general damages, between the parties on the strength of the issues joined in their pleadings and the evidence led by them are unimpeachable and impeccably correct and cannot therefore, be interfered with by this Court. In law, whenever a claim is made for title to land, such a claim must be established not merely on pleadings since it is declaratory in nature but on credible, consistent and probable evidence led in proof of one or more of the five ways of proving title to land.

It does appear to me, and as rightly found by the Court below, that in the face of the the evdience of CW1, CW2, CW3, CW4, CW5 and CW6, coupled with Exhibits 1, 2, 3, 4, 5, 8 and 11, the Respondents clearly proved by more reliable and more credible evidence their right of ownership and acts of possession over their land as distinct from the Appellants’ land, a fact which was even unequivocally admitted by the 1st Appellant in his evidence, and the encroachment on the Respondents’ land by the Appellant to

appropriate it to buyers without their consent and or authority as in Exhibit 8, where it was verged blue. This clearly constitutes trespass as rightly found by the Court below, since in law trespass is constituted by the slightest of interferences even over the slightest of piece of land belonging to another without his consent and or authority. The land need not be of any gigantic size or proportions before trespass can be said to have been committed.

My lords, looking calmly but critically at the totality of the pleadings and evidence led by the parties, it was obvious to the Court below, and now obvious to me too, that the witnesses to the Appellants were not witnesses of truth and thus their evidence ought to be discountenanced since a Court law should act only on credible and probable evidence. The Appellants having pleaded that there were not in position to admit or deny the averments of the Respondents in 12, 13, 18 – 20 and 24, 26 of the 2nd Amended Joint Statement of Claim, which form part of the cannel of the case of the Respondents, they are not only deemed to have admitted those averments but they are not even allowed to proceed to give

contrary evidence on those facts not pleaded by them. The Court below was therefore, right when it placed reliance on these averments of the Respondents as deemed admitted by the Appellants. I therefore, find all the indignations and strictures of the Appellants’ counsel against the Court below on the use of these un – denied averments as amounting to mere noise which is so unwarranted to say the least.

The law is that a party who intends to deny an averment of fact in the pleadings of the adverse party must clearly do so since mere evasive denial or not being in position to admit or deny does not amount to any effective denial of the averments. In law facts not expressly denied are deemed admitted and there is no further obligation on the party whose averments are either not denied and are deemed admitted or whose averments are out – rightly admitted to prove those admitted facts.

In my finding therefore, and as also rightly found by the Court below, the Respondents proved by credible evidence their title to the land in dispute by means title documents, acts of possession and ownership of adjacent land, which are three of the five ways of

proof of ownership of land. Such a correct finding of the Court below must be allowed to stand and cannot be disturbed at all by this Court. SeeUfomba & ORS V. Ahuchaogu (2003) 5 FRP 224; Amadi V. Chinda (2009) 10 NWLR (Pt. 1148) 107 @ p. 130.

There was even evidence that the 1st Appellant, though without any color of right, had sold part of the Respondents’ land to the original 2nd and 3rd Defendants and in law having divested himself of his title to the said land, if he were the true owner, he would be left with no further legal interest in the land in dispute to protect or defend. Again, the 2nd Appellant also failed to prove by any credible evidence any entitlement to the title to the land in dispute verged brown in Exhibit I and blue in Exhibit 8 as land purchased by her from the 1st Appellant. The counter – claim of the 1st Appellant was thus rightly dismissed by the Court below, since in law he having allegedly, though without any color of right, sold the land to the 2nd Appellant had no longer any right or interest, if any at all, in the said land that was capable of sustaining his counter – claim to title to such a land. See Amuda V.Ajobo (1995) 7 NWLR (Pt. 406) 170 @ p. 182,

where it was stated inter alia thus:
“The position is that the Defendant sued by the Plaintiff had no interest in the land subject matter of the dispute. Having sold the land to architect Adedeji as pleaded by the Defendant and given in evidence by the 1st Defendant, the Defendant has no interest whatsoever in the land in dispute to protect or defend. They were therefore, not proper parties to an action for declaration of title brought by the plaintiff. The 1st and 2nd Defendants in this matter filed a joint defense but the 2nd Defendant Counter-claimant did not testify. The 1st Defendant alone fought this suit. Having failed in his defense and Counter – claim, she must as a matter of cause sink with him. Consequently, her counter claim fails in its entirety and is hereby dismissed”.

My lords, there was also the issue of admissibility of photocopies of the Respondents’ Oba’s approval in evidence as Exhibits 9, 10, 10a and 10b by the Court below and having considered the evidence of CW6 and the submissions of counsel for the parties, I am of the view that the admission of secondary evidence of

the Respondents’ Oba’s approval was proper and valid in law in that the needed proper foundation was laid for the admissibility of the photocopies of the original documents, which were pleaded and testified to by CW6 to have been lost. No further foundation was necessary. This was a private document and not a public document that would require certification to be admissible as secondary evidence. In law once proper foundation is laid secondary evidence of private document, which includes photocopies thereof, is admissible in evidence. See Section 89(c) of the Evidence Act 2011.

There is also the issue of the reference to the Biblical story illustrating the uncanny wisdom of King Solomon, which statement was merely made in passing by the Court below having come to the inescapable conclusion that there is an overlap of a narrow strip of land between the distinct lands of the parties, to which neither party is entitled to have in full but in the greater interest of substantial, or proactive justice one may call it, should be shared in two equal halves between the parties. I have reviewed the pleadings of the parties and the evidence led thereon,

particularly the evidence of CW1 and CW5 on the negligible overlap between the distinct lands of the parties by way of a narrow strip of land in between their distinct lands and the decision of the Court below to share the overlap portion or area between the parties, a decision which if it had been cross – appealed against by the Respondents I would have, on the face of the proved evidence, readily allowed such a cross appeal and award the entire narrow strip of land in full to the Respondents, I am simply amused by the heavy weather made of the reference to the wisdom of King Solomon by the Appellants’ which in my view amounts to nothing more than making a mountain out of a molehill !

In this present era and times in our jurisprudence the Courts are enjoined to do substantial justice at all times to the parties and I hold that the reference by the Court below to the Biblical story of King Solomon, on the face of the proper and exhaustive evaluation of the pleadings and evidence of the parties and the correct findings made thereon by the Court below, was of no moment and thus was not in any way fatal or unusual. There is indeed a rich history, or

should I say judicial tradition, of Courts while deciding issues before them to refer to some Biblical or Quranic injunctions which it finds appropriate and apt to the case under its consideration. See Donogue v. Stevenson (1932) AC 62, on the neighbor principle of Christ’s teaching in Luke 10:29. See also Anekwe V. Nweke (2014) All FWLR (Pt. 739) 1154 @ p. 1180, where the Supreme Court per Muhammad JSC, had stated inert alia thus:
“It baffles one to still find in a civilized society which cherishes equality between the sexes, a practice that disentitled a woman (wife in this matter) to inherit from her late husband estate, simply because she had no male child from the husband. This practice, I dare say, is a direct challenge to God the creator who bestows children only, female children only (as in this matter) or an amalgam of both males and females to whom he likes. He also has the male and female he likes. He also has the sole power to make one barren…”

However, I am unable to see anything untoward or fatal by the mere fact of the none participation by the 2nd Appellant in the trial before the Court below and in law no negative

inference can be drawn therefrom once the 2nd Appellant had presented her case through witness(s). Thus, her failure to physically or personally participate at the trial would be of no moment. In the instant appeal, not only was a joint statement of defense/counter – claim filed for the 1st and 2nd Appellants and witnesses called in support thereof, they were also both represented by counsel at the trial before the Court below, and that to me was sufficient.

In law, in a civil proceedings a party, whether a Claimant or a Defendant need not present himself physically or testify on his behalf so long as he files his pleadings and produced witness(s) to testify on his behalf and if his case is proved or defense made out, he would not be deprived of the judgment to which he is entitled merely because he was not physically present at the proceedings before the Court. See Abauul V. Bensu (2003) 16 NWLR (Pt. 845) 59 @ pp 85 – 86, where it was stated inter alia thus:
“A plaintiff or defendant can prove his case without presenting himself or testifying before the Court. Indeed, judgment in an appropriate case may even be entered in suit on the pleading

only with or without the presence of the parties so long as they are duly represented”.

In my finding therefore, the Court below carefully studied the contents of all the relevant Exhibits as tendered by the parties in evidence at the trial and considered them in line with the pleadings and evidence led by the parties and rightly, in my view and I so hold, believed the witnesses for the Respondents and the Exhibits relied upon by them, while disbelieving the witnesses for the Appellants and the Exhibits relied upon by them in finding in favor of the Respondents on the title to the land in dispute.
I find the above decision by the Court below correct and I have no reason whatsoever, since none has been made out by the Appellants, to interfere with and disturb this correct finding of the Court below, a power which an appellate Court does not in fact and in law have interfering with and disturbing a correct finding by a trial Court. That is certainly neither the duty nor business of an appellate Court. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134;

Ukejianya V. Uchendu 18 WACA 46.

In the light of all the findings above therefore, issues one, two and five are hereby resolved against the Appellants in favor of the Respondents.

ISSUES THREE AND FOUR (TAKEN TOGETHER)
Whether from the totality of evidence before the Court below the award of N3, 000, 000.00 as general damages was not justified in law and whether the Respondents have not sufficiently proved their special damages as required by law to be entitled to the sum of N421, 000. 00 claimed and granted by the Court below?

APPELLANTS’ COUNSEL SUBMISSIONS
On his issues three, four and five, argued together, learned counsel for the Appellants had submitted that in law damages are not awarded as a matter of course in that the Court must put into consideration certain conditions in the award of damages whether general or special damages and contended that the award of N3, 000,000.00 as general damages against the Appellants was excessive having regard to the entire circumstances of the case taking into consideration the evidence of CW1 that the encroachment was either negligible or in error on a narrow strip of land between

the land of the Appellants and the land of the Respondents leading to the sharing of the overlap in equal halves by the Court below between the parties and urged the Court to hold that no act of trespass was made out against the Appellants to warrant such excessive amount in general damages and to allow the appeal and set aside the general damages, more particularly when special damages has already been awarded for the quantified loss of the Respondents. Counsel relied on Adekunle V. Rockview Hotel Ltd. (2004) 1 NWLR (Pt. 853) 161 @ p. 166; Olurotimi V. Ige (1993) 8 NWLR (Pt. 311) 257 @p. 261; NEPA v. Inameti (2002) 11 NWLR (Pt. 778) 397 @ p. 410; Aliyu V. Dikko (2012) All FWLR (Pt. 632) 1714 @ p. 1721.

It was also submitted that in law though an appellate Court will not readily interfere with the award of damages by trial Court, but it will not hesitate to do so where the trial Court applied a wrong principle or no principle of law at all in awarding the damages and ontended that the Court below having found that the Appellants were not in trespass and having resolved to divide in equal shares the minimal or neglible area of land between the parties,

there was no further basis for the award of N3, 000, 000, 00 in general damages against the Appellants and urged the Court to hold that this is a proper case where this Court will interfere with the award of the general damages and to set same aside. Counsel relied on Umoetuk V. UBN Plc. (2002) 3 NWLR (Pt. 755) 647 @ p. 653.

It was further submitted that assuming but without conceding that the erstwhile 2nd and 3rd Defendants at the Court below to whom the 1st Appellant had sold part of his land had entered the Respondents’ land, it is the evidence of the 2nd Respondent that they resold the portion to the erstwhile 2nd and 3rd Defendants at the cost of N1,000,000.00 as shown in Exhibit 14, the purchase receipt, during the pendency of the trial and contended that the Respondents having resold the portions of land are therefore not entitled to any damages in respect of that area again and urged the Court to hold that the award of general damages by the Court below in the circumstances amounted to double compensation and should be set aside, since in law those areas of land can no longer be the subject of trespass by the Appellants.

It was also further

submitted that in law special damages must be proved strictly by credible evidence though there is no hard and fast rule as to what would amount to strict proof of special damages and contended that where the items specifically claimed as special damages are bought items, the receipts by which they were bought must be strictly proved and urged the Court to hold that the purchase receipts for the purchase of bags of cements, payment for the economic trees and iron gates being items claimed by the Respondents as special damages is the apposite strict proof required in this regard and having failed to do so the Court below was in error to award the special damages to the Respondents. Counsel relied on Health Care Prod. (Nig.) Ltd V. Bazza (2004) 3 NWLR (Pt. 861) 582 @ p. 587.

It was also submitted that the only evidence in proof of the special damages by the Respondents was the ipse dixit” of the 2nd Respondent and contended that in law the mere ipse dixit of the 2nd Respondent was bereft of the proof of special damages as required by law and urged the Court to hold that there was no evidence that the labourers, even lacking in specification, whom the

Respondents purportedly hired and paid monies to cannot be reached and to interveen and set aside the award of special damages by the Court below, when same was not proved as required by law and to resolve his issues three, four and five in favor of the Appellants and to allow the appeal.

RESPONDENTS’ COUNSEL SUBMISSIONS
On issue three, learned counsel for the Respondents had submitted that on the totality of the evidence led, the award of N3, 000, 000. 00 as general damages by the Court below in favor of the Respondents was justified and sustainable in law in that the evidence of the PW1 and PW5 clearly showed the area of the Respondents’ land trespassed upon by the Appellants and contended that the Court correctly found as fact that the Appellants strayed into the Respondents’ land, trespassed thereon and sold same without the Respondents’ authority and urged the Court to hold that the Court below having found the Appellants liable in trespass was right when it in line with the correct principles of law assessed general damages in the sum of N3, 000, 000. 00 against the Appellants in favor of the Respondents and to affirm the

award of general damages, which was reasonable and not in any way excessive. Counsel relied on Olagunju V. Yahaya (2004) 1 NWLR (Pt. 883) 24 @ p. 55.

On issue four, learned counsel for the Respondents had submitted that the Respondents specifically pleaded and gave unchallenged evidence, even mostly admitted by the Appellants, in strict proof of and proved their special damages as pleaded by them in paragraph 28 (i) (ii) and (iii) of their 2nd Joint Amended Statement of Claim and contended that in law there is nothing extraordinarily sacrosanct about special damages and the proof of same in that the law only requires any one asking for special damages to prove strictly that he did suffered such damages and urged the Court to hold that the Court below was right when on the preponderance of evidence led it found for the Respondents on their special damages claims and awarded same to them in line with the correct principles on award of special damages and to dismiss the appeal and affirm the special damages award. Counsel relied on Amadi V. Chinda (2009) 10 NWLR (Pt. 1148) 107 @ p. 131; Ndulue & Anor V. Ojiakor & Ors

(2013) 219 LRCN (Pt. 2) 186; NBC Plc. V. Ubani (2014) 4 NWLR (Pt. 1398) 421.

RESOLUTION OF ISSUES THREE AND FOUR
My lords, issues three and four deal with the award of damages. In law, while general damages need neither be pleaded or proved, special damages must be pleaded and strictly proved by the party claiming it.

It is settled law that it is he who alleges the positive that carries the burden of proving what he has positively alleged. There is therefore, really no initial burden on he who alleges the negative since the negative is ordinarily incapable of proof. See Elemo V. Omolade & Ors. (1968) NMLR 359; Atane V. Amu (1974) 10 SC 237; Fashanu V. Adekoya (1974) 6 SC 83; Kate Enterprises Ltd. V Daewoo Nig Ltd. (1085) 2 NWLR (Pt. 116; Onyenge V. Ebere 18 NSCQR(pt…

The Respondents had by their pleadings claimed for special and general damages. The heads of special damages were succinctly set out and itemized amounting to a total sum of N421, 000. 00. They also claimed the sum of N 4, 579, 000. 00 as general damages for trespass. However, in paragraphs 17 and 19 of the 2nd Amended Joint Statement of Claim, earlier set out in this judgment, the Respondents averred that the 1st

Appellant destroyed part of their wall fence and carried away their steel gate and that upon a report of the trespass to the Police Station at Ugbor, the 1st Appellant admitted that he used bulldozer to bulldoze their land and further that he sold a part of the land to Mr. Paul Odiase, who had commenced the construction of a building on said land. The Appellants faced with such direct allegation of facts concerning particularly the alleged acts of trespass of the 1st Appellant into the Respondents’ land, what did they say in their defense? In paragraph 5 of their 3rd Amended Joint Statement of Defense and Counter – Claim, they averred as follows:
“The Defendants are not in a position to admit or deny the averments in paragraph 12, 13, 18- 20 and 24, 26 of the Amended Joint Statement of Claim and shall put the Claimants to the strict proof thereof.”

It would appear that in spite of the non joinder of any issue with the Respondents by the Appellants by virtue of their above pleadings, which is merely evasive and thus not amounting to any effective denial or traverse, the Respondents still proceeded to call unchallenged evidence in proof

of their special damages claim, and curioulsy the CW6 who testified to these heads of special damnages claim was not even cross examined by the counsel to the Appellants on this point of facts. CW6 stated that at the Police Station, the 1st Appellant admitted that he destroyed the wall fence and took away the steel gate and that they moulded blocks to build the fence, bought cement, paid for labor and bought the iron gate all totaling N421, 000. 00. There was no contrary evidence from the 1st Appellant on these heads of special damages claim.

The Court below considered both the pleadings and evidence led by the parties and came to the finding, which in my view is perfectly correct and not in any way or manner perverse as erroneously contended by the Appellants, that the Appellants having not traversed these facts as distinctly pleaded by the Respondents were deemed to have admitted them and further having not challenged the CW6 by way of cross examination on these heads of special damages claim are also deemed to have admitted or accepted the evidence as given by the CW6. I do not think this line of reasoning by the Court below can be faulted in any way

as it indeed represents the correct position of the law. See Ndulue & Anor V. Ojiakor & Ors (2013) 219 LRCN (Pt. 2) 186. See also NBC Plc. V. Ubani (2014) 4 NWLR (Pt. 1398) 421; Adesanya V. Aderonmu (2000) 79 LRCN 2149.

My Lords, I had earlier held while considering issues one, two and five that the findings of the Court below that the Respondents proved their title to the land in dispute as well as the unauthorized entry into their land by the Appellants were correct. These painstaking findings and decisions of the Court below are both impeccable and unimpeachable and cannot therefore, be disturbed by this Court but must be allowed to stand. However, I shall now consider the issue of the quantum and heads of damages as awarded to the Respondents against the Appellants by the Court below to see whether or not the awards, both special and general damages, followed the correct principles of the law on award of damages.

Having firmly held as above that the Court below was right to have found the Appellants liable in trespass to the Respondents for both the unauthorized entry into the Respondents’ land and the admitted wanton acts of

destruction unleashed on the Respondents’ properties, let me now turn my attention to consider the issue of damages, both special and general as awarded against the Appellants by the Court below. In its consideration of the evidence of the Respondents on the damages claimed and in its assessment of damages, both special and general, the Court below was satisfied on the quality and quantity of evidence led by the Respondents and had awarded to the Respondent the entire special damages claimed by the Respondents in the sum of N421, 000. 00. It then preceded further to award the sum of N3, 000, 000 as general damages in favor of the Respondents against the Appellants, stating inter alia thus:
“Special damages are all items of loss which must be specified or stated by the Claimant in his pleading before he will be allowed to be proved at the trial and recovery of same granted while general damages on the other hand often consist in all items of loss which a claimant is not required to specify in his pleading in order to allow him recover monetary compensation in respect of them at the trial…It is a cardinal rule of pleading that if a

Defendant refuses to admit a particular allegation as in paragraphs 18 and 19 of the Claimants Amended Joint Statement of Claim or plan he must state so specifically. A general traverse like in the instant case will not do. This is because a trial Court must limit itself to the issues raised by the parties in their pleadings and not otherwise. …As it means the Defendant does not object to the fact as pleaded by the Claimant… Consequent upon this, I award the Claimant the N421,000 claimed as special damages. For the trespass on the Claimants land I award them N3,000,000.00..” See pages 383 – 384 of the Record of Appeal.

I have taken time to review the pleadings of the Respondents on their claim of damages, special and general and evaluated the evidence led by them in support thereof. I have also considered the findings of the Court below on the issue of special and general damages in the light of the complaints by the Appellants against both the findings of facts and the award of damages, both special and general, by the Court below. The law, as I understand it, is that damages is not limited or circumscribed to special damages alone.

In law, as buttressed by a plethora of decided cases as are replete in our Law Reports, is that there is a distinction and very wide divide between special damages and general damages. These differences includes, though not intended as an exhaustive list of these differences, the following namely: 1: General damages need not be pleaded but special damages must be specifically pleaded; 2: General damages need not be proved but special damages must be specially proved; 3: In General damages the assessment is the duty of the Court but in special damages its assessment is based on what is specifically proved; 4. General damages refer to those damages, which flows naturally from the wrongful act of the Defendant but special damages are those damages which denotes those pecuniary losses which have crystallized in terms of cash and values before the trial. See Ijebu Ode Local Government V. Adedeji Balogun & Co (1991) 1 NWLR (Pt. 166) 36. See also Bello V. AG Oyo State (1986) 5 NWLR (Pt. 45) 828; UBN Ltd. V. Odusote Book Stores Ltd (1995) 9 NWLR (Pt. 421) 558.
The law is thus well settled that although there is need to specifically plead and strictly prove

special damages, and the rule requires anyone asking for special damages to prove strictly that he did suffer such damages as he claimed, it does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages. However, all that is required to establish entitlement to special damages is credible evidence of such a character as would suggest that he is indeed entitled to an award under that head of claim or otherwise the general law of evidence as to proof by preponderance of evidence as usual in civil cases operates.
Thus, general damages are such as the Court may give when the judge cannot point out any measure upon which they are to be measured except the opinion and judgment of a reasonable man. They are losses which flow naturally from the Defendant and the quantum need not even be pleaded or proved as it is generally presumed by law. They are presumed to flow from the negligence complained of and proved and in appropriate and deserving cases shall be awarded to assuage the injury done to the successful Claimant against the Defendant. It is for

the above reason, an award of general damages would be improper when quantum of loss is ascertainable. It is to be taken into account in awarding general damages matters which have been considered in awarding special damages. On the other hand, special damages are those damages which are given in respect of any consequences reasonably and probably arising from the breach complained of. They denote those pecuniary losses which have crystallized in terms of cash and values at the trial and must be specifically pleaded and strictly proved. In all however, there is no principles of law that forbids, in appropriate and deserving cases in an action founded in tort, unlike in contract, from granting both special damages as pleaded and proved and general damages as found flowing naturally and directly from the injury done to the Claimant by the Defendant, in so far as in the circumstances of the case it does not amount to double compensation. See Ijebu Ode Local Government V. Adedeji Balogun& Co (1991) 1 NWLR (Pt. 166) 36. See also Bello V. AG Oyo State (1986) 5 NWLR (Pt. 45) 828; UBN Ltd. V. Odusote Book Stores Ltd (1995) 9 NWLR (Pt. 421) 558; Oshinjinrin V. Elias

(1970) All NLR 153; Warner International V. Federal Housing Authority (1993) 6 NWLR (Pt. 298) 148.
My lords, having earlier reiterated the applicable and guiding principles of law on the grant or refusal of special and general damages, I find that the Respondents did proved as required by law their claim for special damages against the Appellants and therefore, the Court below was right to have granted the heads of special damage claims in favour of the Respondents against the Appellants. The Court below acted on the correct principles governing the award of special damages on the proved evidence of the Respondents and such a correct award of special damages cannot be disturbed by this Court. However, as regard the claim for general damages of N4, 579,000.00., I am aware that in law general damages need not even be pleaded or proved, yet there are principles that have crystalized over the years to guide the consideration and award of general damages and having considered the entire circumstances of the case before the Court below, as in the printed record, I find that the award of N3, 000, 000. 00 as general damages was not based on the correct principles

of law on award of general damages and thus not proper. I also bear in mind that the Court below had already awarded the entire special damages claimed by the Respondents against the Appellants. An award I have already found to be proper and in accord with the principles of law on the award of special damages and thus would be allowed to stand.
In my view therefore, the Court below having found that the proved encroachment was either negligible or in error on a narrow strip of land between the land of the Appellants and the land of the Respondents leading to the sharing of the overlap in equal shares between the parties, there is no legal basis to warrant the award of general damages in the huge sum of N3, 000, 000. 00, which amount to say the least in the circumstances of the proved evidence before the Court below, as in the printed record, was excessive and an over kill, more so when it had already quantified the losses of the Respondents and awarded to them their entire special damages claims against the Appellants. No wonder then that no single reason was advanced or proffered by the Court below as to how it arrived at the general damages of N3, 000,

000, in a case it had on its own dubbed as “no victor no vanquished” See Adekunle V. Rockview Hotel Ltd. (2004) 1 NWLR (Pt. 853) 161 @ p. 166. See also Olurotimi V. Ige (1993) 8 NWLR (Pt. 311) 257 @p. 261; NEPA V. Inamet (2002) 11 NWLR (Pt. 778) 397 @ p. 410; Aliyu V. Dikko (2012) All FWLR (Pt. 632) 1714 @ p. 1721.

In law, though an appellate Court will not readily interfere with the award of damages by trial Court, but it will not hesitate to do so where the trial Court applied a wrong principle or no principle of law at all in awarding the damages as in the award of general damaged in the huge sum of N3, 000, 000. 00 by the Court below against the Appellants in favor of the Respondents. I therefore hold, as unassailably urged upon us by the counsel for the Appellants, that this is a proper case where this Court will interfere with the awards of the general damages, though not to set it aside entirely but to reduce it to a reasonable amount as would assuage the Respondents of the proved encroachment into their land by the Appellants to meet the ends of justice! In my assessment the sum of N200, 000 as general damages against the Appellants

in favour of the Respondents is fair and adequate to assuage the Respondents of the slight trespass into their land by the Appellants. SeeUmoetuk V. UBN Plc. (2002) 3 NWLR (Pt. 755) 647 @ p. 653.

In the light of all the findings above, while issue three is hereby resolved against the Appellants in favor of the Respondents, issue four is partly resolved in favour of the Appellants against the Respondents.

On the whole therefore, having resolved issues 1, 2, 4 and 5 for determination against the Appellants in favour of the Respondents but having resolved issue 3 for determination partly in favour of the Appellants against the Respondents, I hold that the appeal succeeds in part and consequently, it is hereby so allowed in part only in relation to the amount of general damages awarded by the Court below against the Appellants in favour of the Respondents.

In the result, the Judgment of the High Court of Edo State, Coram: A. Edodo – Eruaga J., in Suit No. B/338/2005: Dr. Waziri Erameh & Anor V. Mr. Austin Osawetor Erebor & Anor., delivered on 4/6/2014, wherein the claims of the Respondents as Claimants, save the amount of general

damages, were granted against the Appellants as Defendants and the Appellants’ counter – claim against the Respondents was dismissed is hereby affirmed.

However, the award of N3, 000, 000. 00 as general damages against the Appellants as Defendants in favour of the Respondents as Claimants by the Court below is hereby set aside. In its stead, the sum of N200, 000 is hereby awarded as general damages against the Appellants as Defendants in favour of the Respondents as Claimants before the Court below.

There shall be no order as to cost.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the advantage of reading, before now, the judgment of my learned brother, Biobele Abraham Georgewill, just delivered.

I agree that this appeal ought to be allowed in part and I hereby allow it in the manner ably set out in the leading judgment.

Appearances:

Mrs. H. I. Agbonkonkon For Appellant(s)

Iluemnosen Esq. For Respondent(s)