GABRIEL O. OKUNZUA V. MRS. E.B. AMOSU & ANOR.(1992)

GABRIEL O. OKUNZUA V. MRS. E.B. AMOSU & ANOR.

In The Supreme Court of Nigeria

On Friday, the 17th day of July, 1992

SC.178/1990

RATIO

SPECIAL DAMAGES

“Now it is trite law that special damages must be strictly proved by the person who claims to be entitled to them, the nature of the proof depending on the circumstances of each case”. PER SAIDU KAWU J.S.C

JUSTICES

ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria

SAIDU KAWU Justice of The Supreme Court of Nigeria

SALIHU MODIBBO ALFA BELGORE Justice of The Supreme Court of Nigeria

PHILLIP NNAEMEKA-AGU Justice of The Supreme Court of Nigeria

EMMANUEL OBIOMA OGWUEGBU Justice of The Supreme Court of Nigeria

Between

GABRIEL O. OKUNZUA Appellant(s)

AND

MRS. E.B. AMOSU & ANOR Respondent(s)

KAWU, J.S.C. (Delivering the Leading Judgment): In the High Court of Lagos State, the appellant herein, as plaintiff instituted an action against the respondents on an amended writ of summons endorsed as follows:-
“(1) A declaration that the first Defendant is not entitled to enter or use the private driveway in the Plaintiff’s dwelling house and premises situate at No.7B Iya Oloye Crescent, Maryland, Ikeja, measuring 67 metres or 220 feet long and 3.7 metres or 12 feet at its widest at the entrance.
(2) The sum of N50,000 (Fifty Thousand Naira) being special and general damages (on the footing of aggravated damages) for trespass and nuisance committed by the First Defendant when on diverse dates between 2nd April, 1983 and (up) to the date of the writ:-
(a) the said First Defendant broke and entered the Plaintiff’s premises by cutting an opening in the wall fence separating the Plaintiff’s dwelling house from the (first) Defendant’s, entered the said driveway and maliciously committed acts of want on destruction of the Plaintiff’s stock-in trade, to wit, his decorative cum-curative research plants and flowers.
(b) the said (first) Defendant by herself, her agents, servant, visitors or otherwise, continuously harassed and threatened the Plaintiff, members of his household, visitors, workers and servants.
(c) the said first Defendant continuously deposited, and or cause faeces, rubbish and other effluent and obnoscious (sic) substances to be (deposited) on or about the Plaintiff’s dwelling house.
3. An (Order of Perpetual) injunction restraining the first Defendant whether by herself, her servants or agents or otherwise howsoever from entering or using the said Driveway.
4. An order of mandatory injunction ordering the first defendant to block the (opening on) the side gate made by her in the partition wall and leading onto the (said) Plaintiff’s dwelling House and premises.
5. An Order of Perpetual Injunction restraining the first Defendant, her servants or agents or otherwise howsoever, from the continuance or the repetition of the unlawful acts of trespass or repetition of the said nuisances or damage in any manner in respect of the Plaintiff’s said dwelling house and premises.
6. An Order of Perpetual Injunction restraining the 2nd defendant. By her (himself. his servants or agents or otherwise howsoever from committing a breach of the oral tenancy agreement between him and the Plaintiff, relating to No. 7b Iya Oloye Crescent, Maryland, Ikeja, (which the Plaintiff holds of him as tenant) by granting or purporting to grant the use of the drive-way in the said demised premises (and forming part of the said demised premises) or in any way derogating from his grant of the demised premises to the plaintiff.
7. Alternatively, the sum of N50,000.00 (Fifty Thousand Naira) against the 2nd Defendant being special and general damages for breach of the implied covenants for quite enjoyment on the (partly oral and partly) written agreement for a yearly tenancy between the Plaintiff and the 2nd defendant in respect of the demised premises, when the 2nd defendant permitted or allowed the 1st defendant to use the drive-way in the Plaintiff’s dwelling house and premises (the demised premises). as a consequences of which the Plaintiff suffered loss and damages, particulars of which are contained in the statement of claim.
8. “Further or other relief.”
The appellant’s case, as pleaded is that until his retirement in 1975, he was a staff of the College of Medicine of the University of Lagos engaged as a Researcher in Parapsychology and Leaf Contact Therapy. He first occupied the dwelling house at No.7B Iya Oloye Crescent. (or No.2 Idiroko Crescent) in March 1973 as a service tenant of the University of Lagos College of Medicine which had obtained a lease of the house from the 2pd respondent on a yearly tenancy basis for an agreed rent, and on terms that the dwelling house, premises and a driveway appurtenant thereto Should be “clean, clear. plainful and free from any incumberance.”
The driveway was the only outlet to the house which also leads to the main road at Iya Oloye Crescent. The tenancy agreement between the College of Medicine and the 2nd respondent continued until the appellant retired from the services of the College of Medicine in 1975.
After his retirement the appellant entered into a new lease with the 2nd respondent on a year to year basis and consequently the appellant and his family continued to occupy the house. It was the case of the appellant that at the inception of his new tenancy agreement with the 2nd respondent, he was granted exclusive possession of the dwelling house and premises, including the driveway which is the subject of the dispute in the case.
The 1st, respondent was the occupant of the premises known as No.9 Iya Oloye Crescent, Off Ikorodu Road, which is adjacent to the appellant’s house. In or about 1974 she erected a high partition wall demarcating the appellant’s house from hers, although she and her husband were allowed to continue to use the driveway by the appellant. Subsequently the appellant also erected three partition walls on the, remaining three sides of his house to separate his building, including the driveway, from other neighbours’ houses. But on the 2nd April, 1983 the 1st respondent unlawfully broke into the appellant’s premises. It was the case of the appellant that the 1st respondent was not entitled to the use of the driveway which was situated in the appellant’s dwelling house.
Subsequently the 1st respondent moved from the main building to the Boys Quarters, after she had let the main building to the Savannah Bank of Nigeria. She then erected a wall within her premises to demarcate the main building from the Boys Quarters which she occupied and thus completely blocked, off the Boys Quarters from the main road, Iya Oloye Crescent. In order to secure access to the main road, from the Boys Quarters, the 1st respondent caused an opening in the fence demarcating her house from that of the appellant and also erected an iron gate on that opening and thereby trespassed on the appellant’s dwelling house. She thus maliciously destroyed the appellant’s valuable stock-in-trade such as flowers and plants on which the appellant had spent a considerable amount of money. It was the appellant’s case that the 2nd respondent did not permit the 1st respondent to commit the trespass and nuisance alleged and if he did, then that would amount to a derogation of the grant made to him by the second respondent to have the exclusive use of the driveway.
After the appellant had instituted this action, there was an application for an interlocutory injunction filed by the appellant against the 1st respondent. It was in opposition to that application that for the 1st time, the 2nd respondent swore to a counter-affidavit stating that it was he who had granted a license to the 1st respondent to use the driveway in dispute. In paragraph 41 of the Final Amended Statement of claim the appellant set out detailed particulars of the injuries he had suffered as a result of the acts of trespass and nuisances committed by the 1st and 2nd respondents. He also claimed N12,300 damages against both respondents as general damages and another sum of N50.000.00 against both respondents as special and general damages.
The 1st and 2nd respondents filed and served separate defences to the appellant’s claims. In her Amended Statement of Defence it was the contention of the 1st respondent that the driveway in dispute had never been used exclusively by the appellant. She contended that the driveway had always been used by her, her late mother, her relations and all her visitors. She denied committing any trespass on the property of the appellant. She averred that the two parcels of land on which the 2nd respondent’s houses leased to the appellant and her own houses were built were parcels of land allotted to both respondents by Madam Rabiatu Iyalode (now deceased). Otherwise known as Rabi Alaso who died in 1974 and who was owner by virtue of inheritance. It was her case that prior to her death in 1974, Rabiatu Iyalode shared all her vast estate among her descendants including herself and the 2nd respondent. It was her case that the premises let to the appellant by the 2nd respondents did not extend to the driveway in dispute, and that it was with her consent that the appellant was allowed to use the driveway. This is the same driveway she averred, she could use to get to her residence at the back of her landed property. She pleaded that the appellant could not claim exclusive possession of the driveway and for this assertion she would rely on the counter-affidavit of the 2nd respondent sworn to on the 25th day of May, 1984 and also on a further affidavit sworn to by herself and filed on 28th May. 1984. In paragraph 35 of her Amended Statement of Defence, she averred thus
“The 1st Defendant therefore contends that the Plaintiff’s suit is frivolous, speculative and amounts to an abuse of the process of this Honourable Court, and should be dismissed with costs.”
The defence of the 2nd respondent- is substantially the same as that of the 1st respondent. He averred in particular that the driveway in dispute was never granted to the appellant for his exclusive use.
At the trial both sides adduced evidence in respect of their respective claims. The appellant gave evidence in line with his pleadings. The learned trial Judge reviewed the evidence adduced at the trial and with regard to the testimony of the 2nd respondent relating to the driveway in dispute who testified as 5 D.W.. he quoted his testimony as follows:-
”The road in front which was not fully ready was Ademola Debayo Road. I then gave permission for the plaintiff and his wife to be using Nimota Eyiwuawi Road with the other tenants and the Plaintiff and his family were using the road. That is the road in dispute.”
Having done so, the learned trial Judge then proceeded to make specific findings in his judgment as follows:-
“It seems clear tome from the totality of the evidence led in this case that a solution to the dispute could simply have been found, and would have been easily resolved, if the 2nd Defendant had produced his Deed of Conveyance in respect of his parcels of land on which he built the two houses (one of which is to No.7B Iya Oloye Crescent, which he leased to the Plaintiff. I must observe that in the course of the trial I commented on the need for that Deed of Conveyance to be produced, after the witness had admitted that there was such Deed of Conveyance. That Deed of Conveyance if produced could have clearly shown the exact area of land granted to the 2nd Defendant thereunder by Madam Rabiatu. Mr. Adeoba, learned counsel for the Defendant, disagreed with the court on the need for the 5th D.W. to do so, even after the evidence of the 5th D.W. showed that he had such Deed of Conveyance, which he said he would produce. It seems to me that the failure of the 1st and 2nd Defendants to do so was because if that Deed of Conveyance had been produced it would have been against them. They kept the Deed away from the Court, a point which Mr. Lawal stressed much in his submissions. It is from the basis of that omission that I shall by and large proceed to decide this case.”
Further down in the judgment, the learned trial Judge continued:-
“……….With those specific findings of fact, I have not thought that this case is one in which any serious issue of law arose for determination. The issues are mainly on facts. I have resolved the crucial issue of fact, mainly on the basis of the evidence of the 5th D.W., Chief Ademola Debayo Doherty, set out above in this part of this judgment on the non development of the Road which the driveway in dispute would have formed part of, and the other evidence which I accept. I have also relied on the proper inferences which I draw from his failure (and that of the 1st Defendant) to produce at the trial the Deed of Conveyance of the 2nd Defendant, relating to his holdings thereat. I have also relied on my acceptance of the testimonies of the Plaintiff and his witnesses about the driveway and his exclusive possession thereof since his dwelling house was let by the 2nd Defendant to the College of Medicine (for use of the Plaintiff) and later to the Plaintiff. I find as a fact that under the terms and conditions under which that dwelling house and premises was so let by the 2nd Defendant, the driveway in dispute was included therein and the Plaintiff at all material times had exclusive use thereof as part of the premises so demised, until sometime in 1983 when the acts of trespass and nuisance of the 1st Defendant started thereat. I must emphasise that the Plaintiff impressed me throughout his testimonies as a witness of truth and I accept his testimonies in toto.”
He then concluded his judgment thus:
“On the whole, I am satisfied on a preponderance of evidence that the Plaintiff has by cogent and satisfactory evidence he called at the trial established all his averments in the final Amended Statement of Claim, and allegations made therein against the 1st and 2nd Defendants, as to entitle the plaintiff to all the declaratory and injunctive reliefs he has sought against both defendants. The Plaintiff did also establish his claim for special damages in the full amount of N37,700.00 (Thirty Seven Thousand, Seven Hundred Naira) claimed against the 1st Defendant but not as against the 2nd Defendant. Nonetheless, it seems to me that in so far as the 2nd Defendant has been shown to have aided or abetted the 1st Defendant to commit those acts of trespass and nuisance, the 2nd defendant is liable for general damages. But I shall award only a sum of N500 (Five Hundred Naira) as general damages against him in that behalf.”
He finally entered judgment in favour of the appellant and against the respondents as follows:-
I enter judgment for the plaintiff against the 1st and 2nd defendants for declaration that the 1st defendant is not entitled to enter or use the private driveway in the Plaintiff’s dwelling house and premises, situate at No.7B Iya Oloye meaning 67 metres or 220 feet long and 3.7 metres or 12 feet at its widest at the entrance, (and which dwelling house and premises the Plaintiff as tenant held of the 2nd defendant as his landlord on a yearly tenancy).
I enter judgment for the plaintiff against the 1st Defendant.
(a) granting an order of perpetual injunction restraining the 1st defendant, by herself or her servants or agents or otherwise howsoever, from entering, using or committing an act of trespass or nuisance of the said driveway;
(b) granting an order of mandatory injunction ordering the 1st defendant to block the opening and gate she created (and which now exists) on the side wall in the partition wall between the said plaintiff’s dwelling house and premises at No. 7B Iya Oloye Crescent, Maryland, Ikeja, and the 1st defendant’s landed properties (consisting of a storey building at the front portion and two-twin bungalows at the rare (sic) portion situate at No.9 Iya Oloye Crescent, Maryland, Ikeja;
(c) for the sum of N37,700 (Thirty Seven Thousand, Seven Hundred Naira) as special damages for trespass and nuisance committed by the 1st defendant on the said (plaintiff’s) driveway.
3. I further enter judgment for the plaintiff against the 2nd defendant in the sum of five hundred naira (N500.00) as general damages for his aiding and/or abetting the 1st defendant in her said acts of trespass and nuisance, and for his unlawful act thereby, inderogating from his grant of the demised premises, No. 7B lya Oloye Crescent. Maryland, Ikeja leased to the plaintiff as a yearly tenant thereof.
4. I further enter judgment for the plaintiff against the 2nd defendant granting an order of perpetual injunction restraining the 2nd defendant, by, himself, his servants or agents, or otherwise
Howsoever, from committing a breach (or further breach) of the tenancy agreement on yearly terms, between him and the plaintiff relating to No.7B Iya Oloye Crescent, Maryland (which the plaintiff still holds of the 2nd defendant as his Landlord), by purporting to grant or to authorize the 1st defendant or any other third person the use of the driveway forming part of that demised premises, and from doing any other act or acts which would amount to a derogation from his grant of the said demised premises and compound (including the driveway in dispute) to the plaintiff.
In sum the plaintiff’s claim has succeeded in whole against the 1st and 2nd defendants in respect of the declaratory and injunctive reliefs sought. The claim of the plaintiff for N37,700.00 special damages has succeeded only against the 1st defendant. I have however, awarded the sum of N500.00 general damages against the 2nd defendant for his abetting or aiding the 1st defendant to commit the acts of trespass and nuisance, and for derogating from his grant. That shall be judgment of the court.”
Being dissatisfied with the judgment of the learned trial Judge, the respondents herein appealed to the Court of Appeal. Lagos Division, against the decision of the trial court on several grounds of appeal.
Having considered all the submissions made by both parties in the appeal, the Court of Appeal, in the lead judgment of Awogu, J.C.A. delivered on the 8th day of February, 1988 and with which Ademola and Babalakin, J.J.C.A, concurred, allowed the appeal, set aside the judgment of Balogun, J dated 24th January, 1986, and, in its place entered judgment for the plaintiff (appellant) against the 1st defendant in the sum of N5,700.00 with costs.
Aggrieved by the judgment of the Court of Appeal, the appellant has appealed to the Supreme Court on eight grounds of appeal. The grounds, without their particulars, are as follows:-
1. The Court of Appeal erred in law in holding that the plaintiff in order to prove exclusive possession of the driveway should produce the deed of his lease and plan of the vicinity and that the non-production was fatal to his claim.
1A. The Court of Appeal erred in law when it failed to resolve the contradictions in the pleadings and the evidence of the 1st and 2nd defendants.
2. The Court of Appeal erred in law in its application of the principle of law in Aldridge v. Wright (1927) 2 KB 117in holding that the 2nd defendant did not derogate from his grant.
3. The learned Justices of the Court of Appeal misdirected themselves in law when they held that the grant to the plaintiff was that of user, not of exclusive user.
4. The Court of Appeal erred in law when it held that the appellant has not satisfied the burden of proving exclusive possession.
5. The Court of Appeal misdirected itself in law when it held quote:-
The plaintiff agreed that his tenancy was oral and from year to year but did not produce the lease to enable the Court examine its terms had the plaintiff produced the lease and plan of the vicinity and thereby proved his case, the need to pray in aid of section 148(d) of the Evidence Act would not have arisen.
6. The Court of Appeal erred in law in reversing the findings of fact of the trial court when there was no legal basis for such reversal having regard to the principles of law guiding the interference of appellate court on reversal of findings of fact by trial courts.
7. The Courts of Appeal was wrong in law in requiring the plaintiff to tender a plan of the vicinity in order to prove his case and that its non-production was fatal to his claim.
8. The Court of Appeal erred in law when it reduced the award of special damages, and cancelled the award of general damages against the 2nd defendant and the award of costs.
As required by the Rules of this court both parties filed their briefs of argument. At the hearing of the appeal, learned counsel for both the appellant and the respondents adopted their briefs and also made brief oral submissions in expatiation thereon. The questions formulated by the learned counsel for the appellant for determination in this appeal are as follows:-
(1) Was the Court of Appeal correct in its finding that it is the plaintiff and not the defendant who is caught by the provision of section 148(d) of the Evidence Act when he (the plaintiff) failed to produce his deed of lease and plan of the vicinity when the evidence led point to an oral agreement and when a plan of the entire land was tendered by the 2nd defendant
(2) Was the Court of Appeal correct in reversing the High Court findings on the issue of trespass on the ground that the evidence supported a case of user but not exclusive user (page 129 of record)
(3) Was the Court of Appeal correct in relating the question of exclusive user to the common intention of the parties when the question never arose at any time prior to the institution of the proceedings in the High Court but failing to take account that the lessor (2nd defendant) did not expressly reserve any right over the tenement granted
(4) Did the Court of Appeal correctly apply the decision in Aldridge v. Wright (1929) 2 KB 117 to the facts of this case having regard to the issue in 4(3) above’
(5) In all the above considerations, was the Court of Appeal justified in reversing the specific findings of the lower court and substituting their own findings for the same
(6) Did the Court of Appeal correctly evaluate the evidence on special damages when they reduced the same from N37,700.00 when such evidence stands unchallenged and uncontradicted
In their own brief of argument, the respondents formulated issues for determination as follows:-
(1) Whether there is any need for a Landlord to tender his title deed in respect of a plot of land of which the tenant attorns tenancy of the building thereon and admits he is a tenant of the Landlord of that building when the tenant shows no formal written lease of the land comprised in the Landlord’s title deed.
(2) Where the said Landlord specifically denies leasing part of his property to the said tenant and the said tenant produces no document to show that such part of the Landlord’s property was leased to the said tenant, was the Court of Appeal not right in finding that the tenant was not in exclusive possession.
Having regard to the grounds of appeal filed and the submissions made by both learned counsel in this appeal, I intend to consider the issues formulated by the appellant which, in my view, substantially overlap the respondents’ issues. On the first issue for determination, it was the submission of the learned counsel for the appellant that since the evidence at the trial showed that the lease agreement between the appellant and the 2nd respondent was oral, the Court of Appeal was in error when it concluded in its judgment that the provisions of S.148(d) of the Evidence Act should have been applied to the appellant. It was his contention that since the 2nd respondent had stated that he had a Deed of Conveyance from Madam Rabiatu, the original owner of the land, which deed would show the exact area of his land, and which Deed the 2nd respondent failed to produce, the learned trial Judge was right in invoking the provisions of the section against the 2nd respondent.
In his own brief, learned counsel to the respondents submitted that the Court of Appeal was right in holding that in order to prove exclusive possession of the driveway in dispute the appellant should have produced a written lease since, by law, any interest in land must be evidenced in writing, citing sections 5(2) and (5), Law Reform (Contracts) Law Cap. 66 Laws of Lagos State.
Now, was the learned trial Judge right in the circumstances of this case when he applied the provisions of S.148(d) of the Evidence Act against the respondents I think not. Clearly what was in dispute between the plaintiff and the respondents in respect of which issues were joined and evidence led at the trial, was whether the appellant was granted the exclusive use of the driveway by the 2nd respondent. That was the claim made by the appellant in this case and the burden was on him to establish his claim as required under sections 135 and 136 of the Evidence Act. The 2nd respondent’s title to the properties involved was not in issue and, with respect, the learned trial Judge was in error to have based his decision substantially on the failure of the 2nd respondent to produce his title deed.
Issues Nos. 2 & 5 question the propriety of the Court of Appeal reversing the findings of fact of the trial court. I think it is convenient to take them together.
There is no doubt that issues of fact are pre-eminently those of the court of trial. The presumption is that the decision of a court of trial of facts is correct and that presumption must be disproved by the appellant before an appellate court can interfere. See Williams v. Johnson (1937) 2 WACA 253 at p.254. It is also true that it is not the function of an appellate court to substitute its own views for those of the Court of trial, particularly where the issue depends on the credibility of witness – Ogbero Egri v. Edebo Ukperi (1974) NMLR 22. But where a trial court failed to properly evaluate the material before it, as was the case here, an Appellate Court will, in the interest of justice, set aside its decision. See Ozigbe v.Aigbe (1977) 7 S.C. 1 at p.11 and Samuel Ola Oladehin v. Continental iles Mills Limited (1978) 2 S.C. 23 at p.28. Having carefully examined the totality of the evidence adduced at the trial, I am satisfied that on the issue of trespass the Court of Appeal was right in reversing the trial court’s findings of fact.
Questions 3 and 4 set out in the appellant’s brief for determination are also closely interwoven and should be taken together.
It was the contention of the learned counsel to the appellant that the Court of Appeal was in error in relating the question of exclusive use of the driveway to the common intention of the parties when the question never arose at the High Court, it was also contended in that regard that the Court of Appeal did not correctly apply the English decision in Aldridge v. Wright (1929) 2 KB 1 17 to the facts of the instant case.
Now in its judgment the Court of Appeal, per Awogu, J.C.A. observed, rightly in my view, that the appellant, who claimed to be an assignee of the lease with the College of Medicine failed to produce not only the plan of the vicinity which he was to tender, but also the lease itself so as to show that he had been granted the exclusive use of the driveway in dispute. It was after the court had concluded that on the evidence adduced at the trial, the appellant had failed to prove his right of exclusive user that the court made reference to common intention of the parties. A careful reading of that portion of the judgment of the Court of Appeal shows clearly that at no time did that court base its decision on the common intention of the parties. All that the court said was that in the absence of the lease and the plan of the vicinity of the tenement. it was impossible to conclude that the common intention of the parties was that the driveway was to be exclusively used by the appellant and that the 2nd respondent did not make any reservations relating to the use of the driveway.
It was the submission of the learned counsel for the appellant that the decision in Aldridge v. Wright (supra) was not correctly applied to the facts of this case. Now two of the propositions enunciated in that case are – (1) that on a grant of a tenement by the owner the grantor is obliged to pass to the grantee “all those easements which are necessary to the reasonable enjoyment of the property granted,” and (2) that if the grantor intends to reserve any right over the tenement granted, it is his duty to do so expressly. With regard to the first proposition, it was not the case of the appellant that as the assignee of the lease with the College of Medicine, the 2nd respondent did not pass to him all the easements appurtenant to the tenement for the reasonable enjoyment of the property granted. His case was that the driveway in dispute was granted to him by the 2nd respondent for his exclusive use, a claim which he was unable to substantiate. The application of the second proposition did not arise as the 2nd respondent did not claim that he made any special reservation for himself as to the use of the driveway. His evidence was that he granted permission to the appellant and his wife and other tenants to use driveway. In this regard, he testified as follows:-
“The road by the side which I said is Nimota Eyiwuawi Road is shown on Exhibit D3. The road in front which was not fully ready was Ademola Debayo Road. I then gave permission for the plaintiff and his wife to be using Nimota Eyiwuawi Road with other tenants, and the plaintiff and his family were using that road. That is the road now in dispute.”
I do not. in the circumstances accept Ihe submission of the appellant’s counsel that the Court of Appeal did not correctly apply the principles enunciated in Aldridge v. Wright (supra) to the facts of this case.
The last issue deals with the reduction of the special damages awarded to the appellant in the High Court. It was contended that the award of N37,700.00 made by the High Court was amply supported by the evidence adduced at the trial and that the Court of Appeal was wrong to have interfered with it.
Now in considering the award of damages, the Court of Appeal in its 8 judgment at page 324 of the record states as follows:-
“Thus, in the case on hand, it might have been possible to confirm the award made by the learned trial Judge but for two reasons. The first is that the claim was for N50.000.00 general and special damages. The award was N37,700.00 for special damages but no reasons were given for the amount awarded as special damages since, with regard to trespass, special damages had to be strictly proved, whereas this is not so in nuisance. Secondly, the only evidence in proof of special damage amounted to N8,900.00 (see pages 7- 8 of the Supplementary Record of Appeal) and so it is not easy to understand how the amount rose to N37,700.00. The respondent (P.W 5) was not cross-examined on the amount of N8,900.00 proved as special damages, and this might have been enough to uphold the award. However, it includes an item for N3,200.00 which was for “fertilizers, insecticides, fungicides and bactericides at N800.00 per year for 4 years.” The period covered by the years is not stated, nor is the cost of each item given, save that they all cost N800.00 per year. Accordingly, I disallow this item. The respondent is accordingly entitled to the balance of N5,700.00 as special damages.”
Now it is trite law that special damages must be strictly proved by the person who claims to be entitled to them, the nature of the proof depending on the circumstances of each case. However in the case of Oshinjinrin & Ors. v Elias & Ors. (1970) 1 All NLR 153 at 156, Coker. J.S.C. delivering the judgment of this court explained what strict proof entails as follows:-
“Undoubtedly, the rule that special damages must be strictly proved applies to cases of tort. In effect, the rule requires anyone asking for special damages to prove strictly that he did suffer such special damages as he claimed What is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operates.”
Having carefully examined the evidence adduced at the trial, I have no hesitation in coming to the conclusion that the award of N3,200.00 for “fertilizer, insecticides, fungicides and bactericides at N800.00 per year- for 4 years” was rightly disallowed by the Court of Appeal. I accordingly confirm the award of N5,700.00 as special damages to be paid by the 1st respondent to the appellant.
All the issues canvassed having been decided against the appellant, the appeal must be, and is hereby dismissed. Costs assessed at N1,000.00 are awarded to the respondents.A. G. KARIBI-WHYTE, J.S.C.: I have had a preview of the leading judgment of my learned brother Kawu, J.S.C. in this appeal. I agree with the conclusion and all the grounds of appeal argued having failed, the appeal should be dismissed. I hereby also dismiss the appeal.
Appellant shall pay costs assessed at N1,000.00 to the respondents.

S. M. A. BELGORE, J.S.C.: I had the privilege of reading in advance the judgment of my learned brother, Kawu, J.S.C. and I agree with him that the appeal must fail. As I have nothing more to add to his reasons and conclusions, which I adopt as mine,
I also dismiss this appeal with N1,000.00 costs to the respondents.

P. NNAEMEKA-AGU, J.S.C: This is an appeal by the plaintiff who was the successful party in a Lagos High Court, against the judgment of the Court of Appeal, Lagos Division, which had allowed in part an appeal by the defendants in Suit No. 1D/478/83.
The plaintiff’s claim before the court related to a right of easement over the driveway, a servient tenement to No. 7B Iya Oloye Crescent, a dominant tenement, which has been occupied by him since 1975 when he retired from the College of Medicine, Idi Araba. He had occupied the dominant tenement as a service tenant as a staff of the College from 1972, and on retirement, took over the tenancy on the same terms as his previous employers. His claim before the court was for an exclusive right to the driveway. He claimed for a declaration that the 1st defendant was not entitled to enter or use the said driveway to his 7B Iya OIoye Crescent, Maryland, Ikeja, N50,000.00 general damages for trespass and nuisance by cutting an opening in the fence wall separating the plaintiff’s house from the defendant’s, for harrassing and threatening the plaintiff, members of his household, visitors, workers and servants, and for depositing faeces, rubbish and other effluent and obnoxious substances in the said plaintiff’s premises. The 2nd defendant is the landlord and was joined in the suit for aiding and abetting the 1st defendant in the acts of trespass and nuisance complained of. The 1st defendant had erected a wall on one part of the driveway while the plaintiff erected the walls on three sides. While the plaintiff lays claim to exclusive right to use the driveway, the defendants maintain that other tenants, including the 1st defendant, are equally entitled to its use. I must in this respect point out that although the pleading was that the 1st defendant on 2/4/83 broke into the plaintiff’s premises, evidence shows that it was into the driveway, which the plaintiff regards as his exclusive right that he broke into. After hearing, the learned trial Judge entered judgment against the defendants for the declaration he claims, granted perpetual injunction against the 1st defendant from entering or using the driveway, also a mandatory injunction ordering the 1st defendant to block the opening in the wall fence and N37,700.00 against him for trespass and injunction. He also awarded N500.00 as general damages against the 2nd defendant for his aiding and abetting the 1st defendant in the unlawful acts complained of which derogated from his grant and granted an order of perpetual injunction against him.
The Court of Appeal allowed the appeal as it relates to trespass and injunction and reduced the award of damages for nuisance from N37.700.00 to N5.700.00 against the 1st defendant and set aside the award against the 2nd defendant. The plaintiff has appealed further to this court. None of the defendants appealed.
My learned brother, Kawu, J.S.C. has fully and admirably set out the facts which led to this case as well as the issues for determination as formulated by the parties. He has also dealt fully with those issues. I only wish to add a few comments of my own on some of them.
I shall deal with the issue as to presumption under section 148(d) of the Evidence Act which was raised as the 1st issue on behalf of the plaintiff/appellant and the 1st issue on behalf of the defendants/respondents first. The issue arose from part of the judgment of the learned Trial Judge where he held that the dispute in the whole case would have been resolved if the 2nd defendant had produced and tendered his deed of conveyance which would have shown the boundaries between No.7A Iya Oloye Crescent, not in dispute, and No. 7B Iya Oloye Crescent occupied by the plaintiff, that that deed of conveyance would have shown the exact area granted to the 2nd defendant: that the 5th D.W. Chief Ademola Adebayo Doherty, admitted that the deed was in existence and the court indicated its interest in seeing it: that as the 1st and 2nd defendants failed to produce the deed the court was entitled under section 148(d) of the Evidence Act to presume that if it was produced it would be unfavourable to them. The Court of Appeal, per Awogu, J.C.A, with whom Ademola. J.C.A. and Babalakin, J.C.A., as he then was, agreed, held that the presumption was wrongly applied in that it was applied without due regard to the onus of proof in the case and that as the evidence of the plaintiffs wife. Dr. Elizabeth Molara Allen (P.W.1), and 1st and 2nd defendants show that the driveway was used in common and the case of the defendants from the beginning was that the plaintiff was never granted exclusive use of the driveway, the presumption was wrongly applied. The Court cited the case of Chief Tawaklin Bello v. Kassim (1969) NMLR 148, at p.152. Learned counsel for the appellant submitted that it was the 2nd defendant who pleaded the layout plan and it was his duty to produce it, and that as the 5 D.W. admitted that the deed was available. It was his duty to have produced it. As he failed to do so, the learned trial Judge drew the correct inference. Learned counsel for the respondents submitted that as it was the plaintiff who claims exclusive possession of the driveway it was his duty to have produced a written lease to evidence the same in view of the provisions of section 5(2) and (5) of the Law Reform (Contracts) Law, Cap.66 Laws of Lagos State, 1973.
With respect to the submission of learned counsel for the respondents on the issue, it is clear that an easement, being an incorporated hereditament relating to land, is land within the definition of “land” in section 5 of the Law Reform (Contracts) Law. Cap. 66 of 1973. If it was specifically granted to the appellant, the grant ought to have been evidenced in writing. It would have been the duty of the appellant to plead and lender the document of grant. As he did neither, the learned counsel for the respondents is right. Thus, except where an easement can be shown to have arisen by prescription from lime immemorial, in Lagos State at least, it must be created by a grant. See also, in England, Wheeldon v. Burrows (1879) 12 Ch. D. 31.
The real issue in this aspect of the appeal raises the questions as to the condition and the circumstances in which a presumption of fact under section 148(d) of the Evidence Act can be drawn against a party. That subsection provides as follows:-
“148 The Court may presume the existence of any fact which it thinks likely to have happened. regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume:-
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(d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”
(Italics mine)
The first point that must be noted about the sub-section is that it is in our law part of the provisions on burden of proof. So it should be read and construed subject to the law on onus of proof. In civil cases, it must be read together with the law on burden or proof under sections 134, 135, and 136 of the Evidence Act. Conversely it ought never to be used to shift the general burden of proof normally incumbent on a plaintiff upon a defendant save where it is justified on the state of the pleadings: nor to shift the burden of proving a particular point on any party other than the one who alleges it. In the instant case, plaintiff asserts that he was granted the driveway and defendants deny it. It is clear from the pleadings that the real issue raised by the whole case is whether in fact the plaintiff was granted the driveway in dispute in the case. The onus was on the plaintiff to prove this. It was part of the general burden which he assumed at the trial to prove that fact, by reason of the case he brought to court. Until he discharged the evidential burden of calling all necessary evidence that needed to be called on the point, the defendants had no duty to call any evidence or to prove anything. The learned Justice of the Court of Appeal was, therefore, right when he held that the learned trial Judge was wrong to have applied the presumption against the defendants before he came to the conclusion that the plaintiff had discharged the evidential burden on him.
Another point that must be noted about section 148(d) of the Evidence Act, is that the presumption thereunder will arise, in a proper case, against a party to the proceeding who withholds the particular piece of evidence if he does not call any other evidence on the issue: Bello v. Kassim (1969) NMLR 148, 152. It applies only when the party does not call any other evidence on the issue, and not because he fails to call a particular piece of evidence: where. as in this case, such evidence is in possession of a third party who is not under the control of the party and, such third party has been called to testify but the party who wants to take advantage of the presumption did not issue him with a subpoena duces tecum to compel him to produce the document, I do not think that it is proper to raise the presumption against the party calling him who, perhaps, did not think that for his case. it was necessary to call or tender that particular piece of evidence, after calling other evidence on the point.
Next, I shall consider the second issue formulated on behalf of the respondents.
A necessary question which the learned trial Judge ought to have asked himself but which, with respects, he did not ask was this: what is the nature of the evidence that the plaintiff needed to call Conceded, as it must be, on the state of the pleadings and the evidence before the court that what was granted to the plaintiff was No.7B Iya Oloye Crescent but that what was in dispute was his right to the use of the driveway leading thereto but which was not specifically granted to him but which, nonetheless, he was laying claim to as an easement, the necessary questions are: what evidence needed the plaintiff to have called in order to establish his right to the use of the driveway, a servient tenement, by reason of his grant to No. 7B Iya Oloye Crescent, a dominant tenement Is that right to use the driveway exclusive or inclusive And did he call all the necessary evidence
In order to answer these questions correctly it is necessary to note that an easement is a right annexed to land to utilize or enjoy another land owned by another person in a particular manner. It may sometimes give additional right to or prevent the owner of the dominant tenement from utilizing his own land in a particular manner.
Thus it is said:-
“An easement confers a right over and above the ordinary general rights enjoyed by the owner of land which are annexed jure nature to the ownership of real corporeal property, an easement is not ‘of common right’ but ‘is against common right.’ As against the owner of the dominant tenement, an easement involves an enhancement of his ordinary rights; as against the owner of the servient tenement it involves a correspondent diminution of his ordinary rights.”
See on this Vol. 12 Hals. Laws of Eng. (3rd Edn.) 519-520. In my view, flowing logically from the fact that an easement is not of common right is the fact that it has to be clearly pleaded and proved. So, apart from easements of necessity, such as where a grantee of a particular piece of land has to pass through another, which right necessarily attaches to the dominant tenement, it ought to be shown that the special type of easement claimed is appendant to the particular dominant tenement. This, the plaintiff failed to do.
The particular type of easement over the driveway (the servient tenement) which the plaintiff claims by reason of his being a tenant of No.7B Iya Oloye Crescent whereby he asserts that he has these rights to the driveway , to pass through it at will and plant flowers and plants of special breed thereon -to the exclusion of everyone else, including the 1st respondent, appears to me to be clearly against all known principles on easement. First a right to an easement is usually inclusive and not exclusive. An example is the right of way through a particular piece of land; every occupant of land in the neighbourhood whose land borders that particular piece of land may have the right to pass through it: he enjoys that with others as an easement of necessity, which is not what the plaintiff asserts in this case. Secondly, as there is no evidence that the College of Medicine, his predecessors in the tenancy of No.7B Iya Oloye Crescent ever enjoyed what he now asserts, those rights cannot be properly described as quasi easements which continue to enure to him as necessary for the enjoyment of the subject of his grant: See Wheeldon v. Burrows (1879) 12 CH.D.31, C.A. In sum, the nature of the claim which the plaintiff asserts in the case falls foul of the statement of the relevant principle, as stated by Lopez, L.J. in Reilly v. Booth (1890) 44, Ch.D.12, at p.26 where he stated:
“The exclusive or restricted use of a piece of land beyond all question passes the property or ownership in the land and there is no easement known to law which gives exclusive and restrictive use of a piece of land.
It is not an easement in such a case, it is a property that passes.”
Similarly, the learned authors of Cheshire’s Modern Real Property (10th Edn) 467 put it thus:-
“An easement confers its owner no proprietory or possessory right in the land affected. It merely imposes a definite and limited restriction upon the proprietory rights of the owner of the land. A right which entitles one person to the unrestricted use of the land of another may be an effective right to ownership or possession, but it cannot be an easement.”
In the instant case what the plaintiff claims is in fact exclusive right to possess the driveway and use it exclusively by himself. In the absence of any evidence that it was granted to him by the 2nd defendant who not only denies such a grant but asserts that it has been used in common by the plaintiff and other tenants in the estate. Thirdly: the right to exclusive use of the driveway including the right to plant flowers and plants of special breed in it cannot by any stretch of the imagination be described as an easement of necessity. For an easement of necessity is one which in the particular circumstances the law creates and makes appendant to the dominant tenement by virtue of the doctrine of implied grant to meet the necessity of the particular dominant tenement. Such an easement is not merely necessary for the reasonable enjoyment of the dominant tenement, but without it the tenement cannot be used at all (see Vol. 12 Hals. Laws of Eng. (3rd Edn.) pp.525-527. See also Union Lighterage Co. v. Landon Graving Dock Co. (1902) 2 Ch. 557, C.A., per Stirling, L.J. at p. 573.
In the above state of the law, for the plaintiff to have succeeded in his claims for a declaration and for trespass, he ought to have called evidence of a grant of the driveway, moreso as evidence on record, including that of his own wife who testified as P.W.l shows that the driveway was being used in common.
Now therefore, to deal with the specific questions which I have raised above, it is clear that there was no question of a deemed grant by prescription. This is because his tenancy began in 1975 and this matter went to court in 1983. Prescription on the other hand is the modern version of usucapio under Roman Law. Today, prescription arises from a long, continuous and uninterrupted use from time beyond living memory. The rationale is that the use has been for so long that it is assumed that there had been a grant at a time beyond living memory. In England periods which have been accepted have been periods before the reign of Richard I, for periods of 40 years under Lord Tenterdens Act (1832). By analogy, the period of 8 years in this case cannot create a prescription in favour of the plaintiff. The learned trial Judge, therefore, went on a fruitless excursion when he went on to find that the plaintiff had been making an exclusive use of the driveway. The Court of Appeal was right in correcting the error. Howbeit, the evidence of plaintiff’s own wife (P.W.1) and the defendants was to the contrary of his case and showed common user. Be that as it may, in the absence of prescription, the only evidence that could have proved his entitlement to the unusual form of “easement” which he claimed was that of a grant. As he failed to tender any deed of grant evidencing that as required by section 5 of the Law Reform (Contracts) Law, Cap. 66, Laws of Lagos State, 1973, it must be held, and I do hold, that he did not prove his entitlement to either the declaration he claimed or damages for trespass to the driveway.
For the above reasons and the fuller reasons contained in the judgment of my learned brother, Kawu, J.S.C., I dismiss the appeal with N1,000.00 costs to the respondent.

E. O. OGWUEGBU, J.S.C.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother. Kawu, J.S.C. I agree that the appeal should be dismissed.
The appellant misconceived the grant made to him. He offered no evidence of grant of exclusive user of the driveway.
The tenancy granted to the appellant involved the right to some use of the driveway. It is a privilege incident to the land which did not involve exclusive use of it.
The fact that the tenancy was oral makes it difficult for the appellant to prove that there was no reservation of any right of way in favour of the landlord. The landlord was able to show by evidence that the appellant had no exclusive use of the driveway.
For the above reasons and all the reasons given in the judgment of my learned brother Kawu, J.S.C. I too dismiss the appeal. I abide by all the orders contained in the leading judgment.
Appeal dismissed.