GALADIMA v. YELLAH (2020)

GALADIMA v. YELLAH

(2020)LCN/14665(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Wednesday, October 07, 2020

CA/J/82/2019

RATIO

ORDER: CIRCUMSTANCES AN ORDER OF NON-SUIT WILL BE MADE

An order of non-suit will be made in the following circumstances.
(a) Where the plaintiff has not failed in toto or entirely to prove his case.
(b) Where the defence is not in any event entitled to the Court’s judgment.
(c) Where no wrong or injustice to the defendant would be caused by such order.
See Olagbemiro Vs. Ajagungbaje III (1990)3 NWLR (Pt136)37 at 42; Akinsuroju Vs. Joshua (1991)4 NWLR (Pt. 187)542 at 551 para H; Okpala & Anor. Vs. Ibeme & Ors. (1989) 2 NWLR (Pt. 102)208 and Egbuchu Vs. Continental Merchant Bank Plc. (2016)8 NWLR (Pt. 153)192 at 196. PER HASSAN, J.C.A.

ORDER: THIRD FORM OF A JUDGMENT

In a given civil case, a judgment is either given for the plaintiff or for the defendant. There is the third form of judgment, the Order for non-suit. An order for non-suit is a final decision in the sense that it terminates the proceedings in which it is made. See Omoregbe Vs. Lawani (1980)3 – 4 SC 108.
The power to make the order is statutory and the Court, in the exercise of its discretion to make the order, is bound to act judiciously. See Mandilas & Karaberis Vs. Oridota (1972) 4 SC 47.V

EVIDENCE: EFFECT OF ADMITTED FACTS

The established principle of law is well founded and settled that facts admitted need no proof. See Narindex Trus Ltd. Vs. N.I.C.M.B Ltd. (2001)10 NWLR (Pt. 721) 329; Olufosoye Vs. Olorunfemi (1989)1 NWLR (Pt. 95) 26 and Chukwu Vs. Akpelu (2014)13 NWLR (Pt. 1424) 359. The same principle was enunciated in Bunge Vs. Governor Rivers State (2006)12 NWLR (Pt. 995) 573 where it was held at page 600 that:
“When a fact is pleaded by the plaintiff and admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary. There is no dispute on a fact which is admitted.”
See also Trioversal Design Associates Vs. Comm. H& H.S Yobe State (2020) 4 NWLR (Pt. 1714) 243 at 247 and Baiophys Ent. Ltd. Vs. NDIC (2019) 8 NWLR (Pt. 1674)252 at 54. PER HASSAN, J.C.A.

TRESPASS: NATURE OF THE ISSUE OF TRESPASS

It is trite law that the issue of trespass is maintained and succeeded by a person in possession of the land in dispute. The plaintiff in this case did not establish exclusive possession of the land in dispute by the defendant’s claim that he planted crops in the land in dispute, for his claim of trespass to succeed. See the cases of –
1. Agu Vs. Nnadi (1999)2 NWLR (Pt. 589)
2. Okoko Vs. Dakolo (2006)14 NWLR (Pt. 1000) PER HASSAN, J.C.A.
APPEAL: CIRCUMSTANCES THE APPELLATE COURT WILL INTERFERE WITH EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT

The law is well founded in plethora of authorities that where a Trial Court failed in its duty to properly evaluate the evidence before it, the Court of Appeal is in a position to interfere and right the wrong. See Okon Ito Vs. Okon Nde Ekpe (2000) 3 NWLR (Pt. 650) 678 at 697 para G where the Supreme Court held:
“It is the duty of a Court of Appeal or any appellate Court to interfere with trial Court’s findings of fact where the trial Court never adverted to the important facts in the pleadings and evidence, the Court of Appeal is empowered to do this under Section 16 Court of Appeal Act.”
See also Fashanu Vs. Adekoya (1974) ALL FWLR (Pt. I) 35. PER HASSAN, J.C.A.

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

LANTO GALADIMA APPELANT(S)

And

KANDAS YELLAH RESPONDENT(S)

TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Bauchi State delivered on the 22nd day of November, 2018 in Suit No. BA/133/2006 by Hon. Justice Mu’azu Abubakar.

The facts leading to the suit is that the plaintiff/appellant bought a piece of land from the uncle of the defendant/respondent. The defendant/respondent was said to have objected to the sale of the land which resulted in litigation between the plaintiff/appellant and the defendant/respondent, before the Bogoro District Court, Bauchi State, and judgment was given in favour of the plaintiff/appellant. Thereafter the defendant/respondent went into the land and used chemicals to destroy the crops planted by the plaintiff/appellant. The plaintiff/appellant reported the matter to the police and the respondent admitted the allegation in his statement. The defendant/respondent was eventually charged to Court, but on the strength of the information made available to the Court that the parties had settled, the Court terminated the proceedings without specific order of conviction, acquittal or discharge, usually applicable to

criminal trial. After the termination of the criminal trial, the defendant/respondent filed an appeal against the judgment granting the land to the plaintiff/appellant. That the defendant/respondent again went into the land and destroyed the seedlings the plaintiff/appellant placed there in preparation for planting, insisting that he would never allow the plaintiff/appellant to cultivate the land.

Clearly aggrieved, he instituted an action against the defendant/respondent for damages, for trespass in his statement of claim dated 25th day of July, 2016, he sought the following reliefs:
(a) A declaration that the entry into the Plaintiff’s land by the defendant amount to trespass.
(b) Seven Hundred and Fifty Thousand naira special damages for the value of the investment of the plaintiff on the farm which were destroyed by the defendant.
(c) Two hundred thousand naira damages for trespass.
(d) Cost of action and counsel’s fee.

In paragraph ‘f’ of his statement of claim at page 2 of the record, he gave a total of three hundred and fifty thousand naira which he spent on the maize farm and particularized as

follows:
1. Seedlings – N75,000.00
2. Fertilizer – N100,000.00
3. Herbicide – N15,000.00
4. Labour including tractor – N120,000.00
5. Irrigation – N10,000.00
6. Out of pocket expenses – N30,000.00
Total – N350,000.00
The total sum of Four hundred thousand naira spent on the beans farm, are:
1. Seedlings – N50,000.00
2. Fertilizer – N120,000.00
3. Herbicide – N60,000.00
4. Labour including tractor – N100,000.00
5. Irrigation – N30,000.00
6. Out of pocket expenses – N40,000.00
Total – N400,000.00
GRAND TOTAL – N750,000.00

The respondent as (defendant) filed his statement of defence dated 2nd May, 2017, in response to the appellant (plaintiff’s) claim. After the exchange of pleadings by both parties, trial commenced.

The plaintiff/appellant testified at the Trial Court as PW1 in proof of his case. He testified that he is the owner of the land situate as Bar Arewa which he bought from the uncle of the defendant (respondent) herein. That after buying the land which was vacant, he cultivated maize and beans in it awaiting harvest. That when the farm produce became due

for harvest the defendant (respondent) went into the farm and harvested the maize for himself while in the beans farm, he sprayed chemicals on the entire crops thereby destroying everything. The plaintiff’s claim is centred on trespass and damages.

On the part of the defendant/respondent he testified as Dw1. It was his case that the land in dispute was sold to the plaintiff/appellant by his (respondent) uncle. That he was the one that cultivated and planted on the land in dispute. He denied destroying any seedlings allegedly planted by the plaintiff/appellant on the said land nor threatened the plaintiff/appellant. However, under cross examination he said planting on the farm land by the plaintiff/appellant made him to apply chemical on the plaintiff’s crops which eventually burnt the crops.

At the conclusion of trial, the learned Trial Judge suo moto called upon the parties to address him on “Non suit” which they did. The Trial Court in its judgment held that the plaintiff/appellant’s proof of his case was not sufficient to entitle him to judgment and therefore made an order of “Non suit” of the

plaintiff’s case.

The decision of the Trial Court gave rise to this appeal. The Notice of Appeal dated 8th January, 2019 was filed on the 10th of January, 2019. It contained four grounds with their particulars.

In accordance with the rules of Court briefs were prepared, filed and exchanged between parties while the appellant’s brief was settled by Patrick Owoicho, dated 23rd April, 2019 and filed on the 24th of April, 2019, that of the respondent was settled by U. I. Wunti Esq., dated and filed on the 10th of July, 2020 but deemed properly filed on the 13th of July, 2020. On the 16th of September, 2020, the appeal was heard, both counsel representing parties adopted and relied on their respective briefs of argument.
The appellant’s counsel urged that the appeal be allowed. On the part of the respondent, it was urged that the appeal be dismissed.

From the four grounds of appeal the appellant formulated two issues for determination which same was squarely adopted by the respondent as follows:
1. “Whether on the strength of the pleaded facts and evidence led the plaintiff proved the tort of trespass to be

entitled to judgment.” (Grounds 2 and 3).
2. “Whether the plaintiff proved any of the items for special damages to be entitled to judgment. (Ground 1).

The appeal will be determined on the two issues distilled, and the issues will be taken together.

Submitting on the first issue, learned counsel for the appellant, argued that sufficient pleaded facts supported by evidence with regard to the respondent’s entry into the appellant’s farm amount to trespass that entitled the appellant to award of damages. Relying on the case of Ogunbiyi Vs. Adewunmi (1988) 5 NWLR (Pt. 93) 215 at 221, it is submitted that trespass to land consists in any unjustifiable intrusion by one person upon land in the possession of another. That trespass is actionable at the suit of the person in possession of the land who can claim damages or injunction or both. Reference was also made to the case of Cyril Ojini Vs. Ogo Oluwa (1998) LPELR 11 at 12 para G – A.

It is also the submission of the counsel that the appellant was both in actual possession and had the reason for possession by reason of ownership. He referred to paragraph C of the

plaintiff/appellant’s statement of claim at page 2 of the record where he stated that he is the owner of the land which he bought from the uncle of the defendant/respondent. Reference was made to page 33 of the record, paragraph 4 of the defendant/respondent’s statement of defence where he admitted the sale of the land to the plaintiff/appellant by his (respondent’s) uncle. Further reference was made to paragraph of the plaintiff/appellant’s statement of claim, where the plaintiff averred that he sued the defendant over the land in dispute at principal District Court Bogoro and obtained judgment in his favour over the land. That the defendant/respondent did not join issue with the plaintiff/respondent that judgment was obtained against him over the land in dispute which by implication the averment is deemed admitted. The Court was referred to Olowofoyeku Vs. Olowofoyeku (2011) 1 NWLR (Pt.1227) 177 at 183, Order 25 Rules 13 and 14 of the Bauchi State High Court Civil Procedure Rules 1987,Dabup Vs. Kolo (1993) LPELR 905 (SC) 36; Chief Ayoola Adeosun Vs. The Governor of Ekiti State & Ors. (2012) LPELR 7843 and the evidence of the

defendant/respondent under cross examination to the effect that the plaintiff/appellant sued him over the land and obtained judgment. The plaintiff/appellant went on to cultivate the land after the defendant filed a notice of appeal which was thereafter struck out. The defendant/respondent got angry and went into the land and applied chemicals to destroy the crops in the farm. Counsel submitted that the above scenario supports both the plaintiff/appellant’s ownership of the land and his possession of same by the act of cultivation.

Learned counsel for the appellant also referred to the judgment of the Trial Court at page 115 of the record where the learned trial judge tended to agree with the act of trespass and destruction of the crops but somersaulted to hold at page 116 of the record that the plaintiff/respondent did not establish exclusive possession for his claim of trespass to succeed and he did not tender the record of proceedings of the Principal District Court Bogoro, pleaded to be relied upon, which he claimed granted him ownership of the land in dispute. That these two reasons formed the basis upon which the Trial Court non-suited the

plaintiff’s/appellant’ claim for trespass.

It is the contention of the appellant’s counsel that the Trial Court was wrong in its decision, the defendant/respondent having admitted under cross examination that the plaintiff/respondent cultivated on the land on which he destroyed the crops with chemical. That the best evidence is the one offered by the party in full glare of the Court. He relied on Adusei Vs. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 552 para F – H.

It is also submitted that there cannot be concurrent possession by two adverse parties over the same land. That it is not the requirement of law that all documents pleaded must be tendered in evidence. The cases of Ehwrudje Vs. Warri (2016) 10 NWLR (Pt. 1520) 337 at 356 and Bamgbegbin Vs. Oriare (2009) 13 NWLR (Pt. 1158) 370 ratio 6 were referred to.

It is finally submitted on this issue that the Trial Court took into extraneous fact like the size of the land and failure to tender the record of the previous proceedings and the claim to possession by the defendant/respondent all of which had no bearing on the burden of proof. That the judgment of the Trial Court

was perverse and occasioned a miscarriage of justice, as the order for non suit was made in error because there was sufficient evidence on record to justify the award of damages for trespass. We are urged to resolve in favour of the appellant.

On issue two, whether the plaintiff proved any of the items for special damages, learned counsel argued that the plaintiff’s/appellant evidence in support of the claim for special damages was not flawless. That he made a claim of three hundred and fifty thousand naira only as the value for his expenses in the maize farm and four hundred thousand naira in the beans farm. Counsel argued that the admission of the plaintiff/appellant under cross examination that he did not use irrigation because it was rainy season, submitted that the Trial Court was wrong because of only one item to treat the entire heads of claim as unproved. That each item of claim ought to be treated separately on the basis of the quality of evidence led in support.

Submitting further that, in line with the peculiar requirements of proving special damages, the plaintiff/appellant particularized his claim and supported it with oral

evidence on the balance of probability to be entitled to the damages sought for the loss he suffered. That the duty of the Court is to grant what was proved, as it is not the law that failure to prove one of several items of claim will automatically lead to defeat of every claim. The Court was referred to the cases of MTN Vs. A. C. F. S. (2016) 1 NWLR (Pt. 1493) 339 at 356; GE International Vs. Q – Oil (2015) 1 NWLR (Pt. 1440) 244 at 272; Imana Vs. Robinson (1979) 12 NSCC 1 at 11; A .G Leventis Vs. Akpu (2007) 17 NWLR (Pt. 1050) 416 at 447; B. B. Apugo Vs. O. H. M. B. (2016) 13 NWLR (Pt. 1529) 206 at 256 – 257 among others, to submit that the plaintiff/appellant proved his entitlement to all the items pleaded at paragraph f and g of his statement of claim at pages 2 -3 of the record except item 5 in paragraph f and 5 in paragraph g respectively.

It is the contention of the appellant’s counsel that the defendant/respondent did not vigorously challenge the claim for special damages in his statement of defence but only to say that the plaintiff/appellant did not spend the “fictitious”, sum claimed to have been spent on the

land because the size of the land cannot accommodate such, but under cross examination at page 49 of the record, he turned round to agree that the land was “like an hecter”. That in paragraph 13 of his statement of defence he denied destroying the plaintiff’s/appellant seedling planted on the land, but he eventually admitted it, under cross-examination, which shows that he is not capable of being believed. Counsel relied on the Supreme Court case of Agbomeji Vs. Bakare (1998) 7 SCNJ 33 at 54 where the Apex Court held that when a person lied on a matter that was obvious to the naked eyes, such is not worthy of any belief in any other matter.

Referring to the case of NBC Vs. Ubani (2014) 4 NWLR (Pt. 1398) 421 at 459 para H, it is finally submitted that the quality of evidence led by the plaintiff/appellant is both enough to meet the requirement of proof outrightly, as well as enough to meet the requirement of minimum proof in the absence of any real challenge of facts in support of the claim.

We are urged to hold that the plaintiff/appellant has proved his case and to resolve the issues in his favour.

Responding, learned counsel

for the respondent argued on the first issue that appellant’s evidence adduced at the trial does not substantiate the claim for trespass to warrant the Trial Court to so find in his favour, hence, the non suited of the suit. That it is not in dispute the appellant acquired the land from the respondent’s uncle, but the judgment of the Bogoro District Court which the appellant is using to substantiate the title of the land he acquired from the respondent’s uncle was being challenged. He referred to paragraph 5 of the respondent (defendant) statement of defence, at page 33 of the record, to submit that it was deposed therein that the defendant/respondent was the one that cultivated and planted on the land in dispute and the appellant never denied the averment in any way. That it is out of place for the appellant to accuse the respondent of trespass when the source of grant was being challenged. Counsel argued that for the appellant to prove trespass against the respondent, he has to establish the validly of his grant of the land. He relied on Opoto Vs. Anaun (2016) NWLR (Pt. 1539) 437 at 490 – 491 paras G – D.

Referring to

paragraph 5 of the respondent (defendant) statement of defence at page 33 of the record, that it was shown therein that the appellant was never in possession of the land in dispute as it was the respondent that has always been in possession being a family land. Counsel argued that the law is settled one cannot maintain an action for trespass against the true owner who has possessory right over the land. That throughout the evidence of the appellant he failed to prove exclusive possession of the land, hence his claim for trespass must fail. He referred to Onovo Vs. Mba (2014) 14 NWLR (Pt. 1429) 391.

It is also his submission that failure of the appellant to tender the documents pleaded to be relied upon, the appellant is caught by the provision of Section 167(d) of the Evidence Act, 2011. He referred to Chairman EFCC Vs. LittleChild (2016) 3 NWLR (Pt. 1498) 72 at 77 – 78 R. 4 and Famakinwa Vs. State (2016) 11 NWLR (pt. 1524) 538 at 547 – 548 R. 13, to submit that the Lower Court was right in querying the appellant for failure to tender the pleaded documents which would have enabled the Court to know the nature of judgment obtained by the

appellant at the Principal District Court of Bogoro.

It is finally submitted on this issue that since the respondent has always been in exclusive possession of the land, he could not have been guilty of trespass against his property. The Court is urged to so hold.

On issue two, learned counsel for the respondent argued that the appellant having particularized his claim for special damages, the law enjoins him to strictly prove all the particulars to arrive at the sum of N750,000.00 but the appellant failed in his regard. The Court was referred to F. C. D. A. Vs. MTN Nig. Comm. (2017) 10 NWLR (Pt. 1573) 217 at 219 – 220.

Reference was made to the answer given by the appellant under cross-examination, that he was unable to prove any of his claim in respect of special damages claimed in the sum of N750,000.00. That all the appellant kept saying was that he expended N750,000.00 on the land as the loss he suffered. It is submitted that, since the appellant could not prove how he arrived at the N750,000.00 special damages he is not entitled to the award of same. The cases of B.B. Apugo & Sons Ltd. Vs. O.H.M.B. (2016)13 NWLR (Pt. 1529) 206

at 207 R. 3 and Mbata Vs. Amanze (2018)15 NWLR (Pt. 1643)583 paras G-H were referred to.

Learned counsel argued that, contrary to the submission of the appellant that the respondent did not challenge the issue of special damages, he referred to paragraph 6 of the defendant/respondent statement of defence where the respondent denied the appellant’s claim in this regard. That paragraph 6 is a complete rebuttal of the appellant’s claim for special damages, and we are urged to so hold and resolve the issues in favour of the respondent and on the whole to dismiss the appeal.

The basis of this appeal is in respect of the order of “non-suit” made against the appellant’s case at the Lower Court. In the course of its judgment, the Court below held at page 117 of the record:
“Looking at the whole case of the plaintiff, the plaintiff was able to prove a probable case, but the proof was not sufficient to entitle him to judgment.
In view of that, an order of non-suit of the plaintiff’s case in hereby made.”
An order of non-suit will be made in the following circumstances.
(a) Where the plaintiff has not

failed in toto or entirely to prove his case.
(b) Where the defence is not in any event entitled to the Court’s judgment.
(c) Where no wrong or injustice to the defendant would be caused by such order.
See Olagbemiro Vs. Ajagungbaje III (1990)3 NWLR (Pt136)37 at 42; Akinsuroju Vs. Joshua (1991)4 NWLR (Pt. 187)542 at 551 para H; Okpala & Anor. Vs. Ibeme & Ors. (1989) 2 NWLR (Pt. 102)208 and Egbuchu Vs. Continental Merchant Bank Plc. (2016)8 NWLR (Pt. 153)192 at 196.

Learned counsel for the appellants contended that sufficient pleaded facts supported by evidence was established to prove the respondent’s entry

into the appellant’s farm and destroying his crops. The appellant was both in actual possession and had the reason for possession by reason of ownership when the respondent trespassed into the land. The respondent admitted to the destruction of the appellant’s crops in the farm by applying chemical.

It is not in dispute that the land was sold to the appellant by the respondent’s uncle. The grouse of the respondent is that it was a family land that his uncle sold to the appellant.

The plaintiff testified that after the purchase of the land from the respondent’s uncle which was vacant, he cultivated maize and beans on it, awaiting harvest. That when the farm produce became due for harvest, the respondent went into the farm and harvested the maize for himself, while in the beans farm, he sprayed chemicals on the entire crops thereby destroying everything.

This evidence led by the plaintiff/appellant goes to show that he was in exclusive possession of the land, that he planted maize and beans on the land. Further evidence reveals that the defendant/respondent trespassed on the land and destroyed the crops planted, by the

plaintiff/appellant a fact admitted by the defendant/respondent. This to my mind is a high-quality evidence which the Trial Court ought to have relied and acted upon, with the resultant effect granting the plaintiff/appellant claim for trespass. For the defendant/respondent’s case to have any redeeming features, he ought to have gone further to claim title to the land in dispute by way of filing a counter claim. In the absence of a counter-claim for title to the land in dispute, the defence crumbles.

(2020) 4 NWLR (Pt. 1714) 243 at 247 and Baiophys Ent. Ltd. Vs. NDIC (2019) 8 NWLR (Pt. 1674)252 at 54.

In the instant case there was evidence that the respondent entered the appellant’s land and destroyed the crops planted. The respondent admitted this fact under cross-examination. The logical inference deducible from the evidence is that there was act of trespass on the appellant’s land committed by the respondent, to justify the plaintiff/appellant claim for trespass.

However, in the face of unchallenged evidence and clear admission of trespass and destruction by the defendant/respondent, the learned Trial Judge grossly ignored same and proceeded to make an order of “non suit” in the plaintiff’s/appellant’s case.

The Trial Judge found at page 115 of the record in the course of its judgment that “The defendant/respondent in paragraphs 4 and 5 of his statement of defence and paragraphs 3 and 4 of his evidence on oath stated to the effect that the land in dispute was sold to the plaintiff/appellant by his uncle but it was very small in size and he (defendant) was the one that cultivated the

land in issue, which evidence was not discredited under cross-examination. The difficulty here is that even though the defendant admitted the fact that his uncle sold part of the family land to the plaintiff which is very small in size, yet claim to have planted on the same land.
It is trite law that the issue of trespass is maintained and succeeded by a person in possession of the land in dispute. The plaintiff in this case did not establish exclusive possession of the land in dispute by the defendant’s claim that he planted crops in the land in dispute, for his claim of trespass to succeed. See the cases of –
1. Agu Vs. Nnadi (1999)2 NWLR (Pt. 589)
2. Okoko Vs. Dakolo (2006)14 NWLR (Pt. 1000)
The plaintiff also claimed to have been granted ownership of the land in dispute by the principal District Court, Bagoro and the record of proceedings pleaded to be relied upon. However, the plaintiff did not tender the record of proceedings’ and this remains to this Court a mere speculation which cannot be relied upon.”

From the pleadings of the parties the plaintiff did not claim for any declaration of title to the farm

land in which his crops have been destroyed by the defendant/respondent nor did the defendant counter claim to the declaration of title to the land in possession of the plaintiff on which the plaintiffs’ maize and beans plantation was established.

The case at the trial High Court was a claim for damages for trespass resulting in the destruction of plaintiff’s crops by the defendant/respondent. If the Trial Court had considered the evidence adduced before it, it would not have arrived at the above findings.

(1974) ALL FWLR (Pt. I) 35.
I hold that the learned Trial Judge greatly erred in failing to be guided by the imaginary scale principle laid down in the case of Mogaji Vs. Odofin (1978)4 SC 91. In other words, he did not weigh the evidence of the plaintiff/appellant and the testimony of the defendant/respondent.

Issue one is resolved in favour of the appellant and against the respondent.

On issue two, whether the plaintiff proved any of the items for special damages to be entitled to judgment. To succeed in a claim for special damages, the claimant must plead the special damages and give necessary particulars and adduce credible evidence in support. He must satisfy the Court as to how the sum claimed as special damages was quantified – Onyiorah Vs. Onyiorah (2019) 15 NWLR (Pt. 1695) 227 at 229. See also Anyanwu Vs. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445 and Nwanji Vs. Coast Services (Nig.) Ltd. (2004) 11 NWLR (Pt. 885)552. It follows therefore that a claim for special damages succeeds only on a strict proof of the specifically pleaded facts in relation to the sum claimed. This is because they are of a type that the law would not

infer from the nature of the act. As they do not flow in the ordinary course, being exceptional in their character, they must be claimed specially and proved strictly.
However, strict proof does not imply unusual proof, rather it is basically proof that would lend itself to quantification. The term ‘strict proof’ required in proof of special damages means no more than that the evidence must show the same particularity as is necessary for its pleadings. It should consist of evidence of particular losses which are exactly known or accurately measured before the Trial Court. There is no particular type or quantity of evidence to warrant special damages. In some cases, it may be necessary to show documentary proof of the loss sustained, while in others it may be unnecessary, since each case depends on its own facts and circumstances. SeeIbrahim Vs. Obaje (2019) 3 NWLR (Pt. 1660) 389 at 397; Imana Vs. Robinson (1979) NSCC 88 and SPDC (Nig.) Ltd. Vs. Tiebo VII (2005)9 SCC I.
In the instant case the plaintiff/appellant testified at the Trial Court in respect of his claim for special damages. He admitted under cross-examination that he gave

the break down of the loss incurred to his counsel without receipts, because the items were purchased in the market and receipts were not issued to him. He was able to give the cost of fertilizer per bag, but failed to give the cost of herbicide and out of pocket expenses. Irrigation was one of the items particularized, but under cross-examination he said he did not use irrigation because it was rainy season. It appears, the claim for special damages was based on the estimation of the plaintiff/appellant.
The Supreme Court in Ajigbotosho Vs. R.C.C. Ltd. (2019)3 NWLR (Pt. 1659) 287 at 291 held thus:
“A claim of special damages based on mere estimates or estimation by the plaintiff is not precise. It is as good as an exercise in mere conjecture, a guess work, which clearly is the antithesis of precise calculation.”
A claim founded on mere conjecture is clearly an invitation to the Court to descend to the realm of conjecture and thereby producing an order that is uncertain, and that is not a hall mark of judicial order.
The plaintiff/appellant has failed in his claim for special damages and the issue is resolved in favour of the

respondent and against the appellant.

The trial Court in its judgment at page 115 of the record echoed that the defendant in his evidence denied the claim of the plaintiff in special damages, but under cross-examination he admitted unequivocally that he sprayed chemical on the plaintiff’s crops.

A finding of fact entails both perception of evidence and evaluation of evidence. Trespass is a civil wrong against possession, in that it is an unlawful and unauthorized invasion of the right of the party in possession. The plaintiff/appellant having established his case of trespass is entitled to judgment.

In the exercise of its powers under Section 15 of the Court of Appeal Act, the Court of Appeal is only empowered to make an order which the trial Court is authorized to make. Thus, where the Trial Court lacks jurisdiction to entertain cause of matter, or to make a particular order, the Court of Appeal would equally lack jurisdiction to do so.

Having resolved issue one in favour of the appellant, the appeal succeeds in part and it allowed in part. The judgment of the High Court of Bauchi State in Suit No. BA/133/2016 delivered on the 22nd

day of November, 2018 is hereby set aside. In its place judgment is entered in favour of the plaintiff/appellant in the following terms:
1. A declaration that the entry into the plaintiff’s land by the defendant amount to trespass.
2. N500,000.00 is awarded as general damages for trespass.
3. Costs of N50,000.00 is awarded for the plaintiff/appellant against the defendant/respondent.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had the opportunity to read before now the judgment just delivered by my learned brother, TANI YUSUF HASSAN, J.C.A. I agree with his reasoning and conclusion that the appeal succeed and ought to be allowed. I also allow the appeal.
I abide by the consequential order as to cost.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother TANI YUSUF HASSAN, J.C.A. I am in complete agreement with his reasoning and conclusion. For the same reasons advanced in the lead judgment, I also allow the appeal. I abide by all the consequential orders including that as to cost.

Appearances:

Nantok Dashuwar, holding the brief of Patrick Owoicho For Appellant(s)

M. Abejeme with him U. I. Wunti For Respondent(s)