HASSAN v. HAKIMI & ORS (2020)

HASSAN v. HAKIMI & ORS

(2020)LCN/14745(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Thursday, November 19, 2020

CA/S/173/2017

RATIO

JURISDICTION: IMPORTANCE OF JURISDICTION

In resolving this issue, it is important to, right at the onset, bear in mind that the question of jurisdiction and competence of a Court to entertain any matter is the live wire that sustains it. It is a very crucial issue and its determination is always at the heart and foundation of any action. Sometimes it is a straightforward issue of law but on some occasions it is a matter of mixed law and fact. This is not totally unexpected because it is a cardinal principle of adjudication that every case must be decided upon its peculiar facts and circumstances. PER BABANDI GUMEL, J.C.A.

COURT: HOW SHOULD COURT DECIDE MATTERS

Generally, no Court is allowed to decide any matter based on the whims and caprices of the judex but strictly on the evidence adduced before it. PER BABANDI GUMEL, J.C.A.

RELIEFS: GRANT OF DECLARATORY RELIEFS

It is a very strong point of law that declaratory reliefs, as aspects of equitable reliefs, can only be granted upon concrete and credible evidence. This is more so emphasised when it comes to the granting of declaratory reliefs on title to land. It has been held in a number of decided cases of this Court and the Supreme Court that declaration of title to land cannot ordinarily be made on admission of facts. Though in general terms, in litigation and adjudication, what is admitted needs no further proof, admissions of facts do not suffice to warrant the granting of title to land. SeeOFODILE V. IKEDIFE & ORS (2015) LPELR — 40712 (CA) where the earlier decision of the Supreme Court in TUKURU & ORS V. SABI & ORS (2013) 3 SCNJ 212 was considered and applied by this Court. See also OGUNDAIRO & ORS V. OKANLANWON & ORS (1963) LPELR 25403 (SC). PER BABANDI GUMEL, J.C.A.

LAND LAW: ELEMENTARY PRINCIPLE OF ADJUDICATION IN LAND MATTERS

In a long line of judicial decisions, it has been held as an elementary principle of adjudication in land matters that the dismissal of the claims of a Plaintiff does not decree title in the defendant, he not having sought the declaration by a counterclaim. See AMUDA V. OSHOBOJA (1984) 4 NWLR (PT. 33) 27, DARMA V. BATAGARAWA (2002) 17 NWLR (PT. 796) 243 and ANWOYI V. SHODEKE (2006) 13 NWLR (PT. 996) 34, etc. All these decisions amongst many others support the principle that a Court does not possess the power to grant a relief not claimed by a party, except where they are consequential. PER BABANDI GUMEL, J.C.A.

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

BALA HASSAN APPELANT(S)

And

1. USMAN HAKIMI 2. ABUBAKAR MAUDE 3. ALIYU HAKIMI RESPONDENT(S)

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kebbi State High Court sitting in its appellate jurisdiction in Suit No. KB/HC/66A/2014 delivered on 23rd March, 2015, Coram Judice Bashir, Shuaibu and Bunza, JJ.

Before the trial Senior District Court of Kebbi State sitting in Birnin Kebbi in Birnin Kebbi Magisterial District, the within named Respondents were the Plaintiffs and they sought for the following declaratory and injunctive reliefs against the within Appellant as the Defendant. They are: –
“1. An order of declaration that the plaintiffs are the rightful owners of all that 3 plots of land situated in Sabon Gari Ambursa with the following bearings.
a. Length 100ft X 3
b. Width 50 x 3
c. East the land share boundary with Road.
d. West the land share boundary with Bala Hassan plot.
e. South the land share boundary with Muh’d Sani plot.
f. North the land share boundary with Filin Gari.
2. An order of perpetual injunction restraining the defendant, their servants, agents and/or privies from trespassing or remaining on any part or portion of the land.

an order for the defendant to remove all illegal structures erected on land in dispute.
4. any further order or orders that end of justice may demand.
5. cost of this action.”

The sizes, dimension, location, boundaries and all the physical features of the land in dispute were set out in the claim of the Plaintiffs/Respondents.

Three witnesses testified for the Plaintiffs at the trial while the Defendant/Appellant also testified as DW1. At the end of the trial, the Court found in favour of the Plaintiffs and granted their reliefs in terms. The Defendant was dissatisfied and he appealed to the Kebbi State High Court in a notice of appeal dated and filed on 11th February, 2013. The notice of appeal contained 5 grounds of appeal. For the first time the Defendant/Appellant raised the issue of jurisdiction of the trial Court to entertain the action of the Plaintiffs on the ground that the land in dispute is within a designated Urban Area etc. The High Court dismissed this and all the remaining grounds of appeal and proceeded further to affirm the judgment of the trial Court.

Still dissatisfied, the Defendant/Appellant sought and obtained the leave of the Kebbi State High Court to appeal its judgment and hence this appeal, predicated on a notice of appeal containing 5 grounds of appeal, now more particularly contained at pages 104 to 106 of the record of appeal.

To argue the appeal, learned counsel to the Appellant Mr. M. A. Sambo filed his brief of argument on 2nd February, 2018 and same was deemed properly filed and served on 23rd May, 2018. The Respondents’ brief was settled by learned counsel Mr. Aminu Hassan and was filed on 8th June, 2020 after they were granted leave to defend the appeal as persons without means pursuant to Order 13 Rule 1 of the Court of Appeal Rules, 2016.

From the 5 grounds of appeal, learned counsel to the Appellant formulated the following 3 issues for determination in this appeal. They are:-
“1. Whether the Court below was right when it affirmed the decision of the trial Court which was reached without jurisdiction? (Distilled from Ground 1 of the Amended Notice of Appeal).
2. Whether the Court below was right when it affirmed the decision of the trial Court that was reached without properly evaluating the evidence before it? (Grounds 2 & 3 of the Amended Notice of Appeal).

Whether the Court below was justified when it ordered the Appellant to remove all his structures from the disputed property within 30 days without any compensation? (Grounds 4 & 5 of the Amended Notice of Appeal)”In paragraph 4.0 at page 3 of the Respondents’ brief, learned counsel Mr. Hassan adopted the 3 issues for determination formulated on behalf of the Appellants.
At the hearing of the appeal before us on 1st September, 2020, learned counsel Mr. Sambo, on behalf of the Appellant adopted and relied on all the arguments and submissions in his brief of argument and urged on the Court to allow the appeal and set aside the judgment of the Kebbi State High Court (Lower Court). On behalf of the Respondents, learned counsel Mr. Hassan also adopted and relied on all the submissions in their brief of argument and urged on the Court to dismiss the appeal and affirm the judgment of the lower Court.

Before the resolution of the issues for determination in this appeal, I think it is essential to place on record the key and material facts and circumstances that led to it. At the

trial, it was sought to be established that the Plaintiffs used to live in Arabi Village in Ambursa District in Birnin Kebbi Local Government Council of Kebbi State, while the Defendant/Appellant was an indigene of Ambursa District and resident there too. It was also sought to be additionally established that:
“4. The land in dispute was allocated to the 1st Plaintiff and his two brothers when they were asked to leave Arabi Village as a result of annual flooding of water in the Village.
5. The defendant erected structures on the plots belonging to the Plaintiffs.
6. The Plaintiffs reported the matter to the district head of Ambursa late Sardauna Yahaya Bawa.
7. The late Sardauna Yahaya Bawa appointed a committee and committee confirm that Plaintiffs were the owners of the land in dispute but the defendant erected structures on the land.
8. The defendant stated that he would give substitute plots to the plaintiffs whenever they want erect their building on it. And he even showed the plaintiffs 3 plots.
9. That now the defendant claims the three plots he showed to the plaintiffs were given to him for safe custody by the Birnin Kebbi Local Government.”

Upon this traditional settlement the Plaintiffs/Respondents said that they accepted the 3 alternative plots of land offered to them by the Defendant/Appellant. However, when they proceeded to develop them for residential purpose, the Appellant refused them access and said that they were really not his own but belonged to the Birnin Kebbi Local Government Council, given to him to hold in trust. Against this position of the Appellant the Plaintiffs/Respondents saw no other option than to take the matter to Court and indeed took it to the District Court. While the matter was being heard and the Appellant was to enter his defence after the Plaintiffs had closed their case, he asked for another opportunity for an out of Court settlement. The previous traditional settlement was revived with the full consent of the Appellant.

When it was to be enforced, the Appellant left town and did not come back until after one year and only for him to further renege on the Court ordered settlement. This was the operating circumstance when the Plaintiffs/Respondents once again resorted to another District Court to ventilate their grievance against the Appellant and leading to this appeal.

In arguing the first issue for determination, learned Counsel Mr. Sambo for the Appellant set the ball rolling by reproducing pages 47 — 48 of the record of appeal, as part of the judgment of the Court below and pointed out that the learned judges of the Court should have held that the trial Senior District Court had no statutory or territorial jurisdiction to decide on the claim of the Plaintiffs/Respondents. Thereafter, learned Counsel quoted the full text of Section 39 and Section 41 of the Land Use Act and maintained that by the combined effect of these provisions the trial Court totally lacks competence and jurisdiction to entertain the claim of the Respondents. He added further that the learned judges of the lower Court were wrong to affirm the decision of the trial Court.

Also, according to Mr. Sambo, of counsel, even though the trial Court may ordinarily have jurisdiction to grant reliefs in declaration of title to land matters, but that jurisdiction is restricted to claims with respect to lands covered by a customary right of occupancy. Against his belief that the land in

dispute in the circumstance of this appeal is covered by a grant by the Governor of the State, learned counsel emphasised that to that extent it was covered by a statutory right of occupancy and therefore within the exclusive jurisdiction of a State High Court. In his attempt to further fault the critical findings of the lower Court, learned counsel Mr. Sambo argued that there was no need for the pleading of or tendering of any survey plan or maps for the lower Court to find that the land in dispute was within 16 kilometres radius and therefore being a land in a designated urban area. He then submitted that it was a serious misconception by the Respondents’ counsel and the Court below to maintain and hold that the land in dispute was not within 16 kilometres radius and therefore within the jurisdiction of the trial Court.

In another emphatic statement, Mr. Sambo, of counsel, maintained that Section 39 (supra) has outrightly ousted the jurisdiction of the trial Court to entertain the suit of the Plaintiffs/Respondents because it was situated within a designated urban area, as it was admitted by all the parties that the land was allocated to them by the

then Governor of Kebbi State. He cited and relied on the decision of this Court in AZAGBA V. NIGERIAN COLLEGE OF AVIATION TECHNOLOGY & ANOR (2013) LPELR — 20740 (CA) where it was held that the present position of the law is that the High Court of a State has exclusive jurisdiction over all parcels of land located within the areas designated as Urban areas and subject to a statutory right of occupancy granted by the State Government. Also, according to this decision, the State High Court shares concurrent jurisdiction with Area Courts, Customary or Magistrate Courts or Courts of equivalent jurisdiction in respect of all parcels of land located in the areas of the State designated as rural or non — rural areas and subject to customary right of occupancy granted by a Local Government.

While relying on Section 122 (1) of the Evidence Act, 2011, Mr. Sambo, of counsel, pointed out and explained that it was erroneous for the lower Court to fail or refuse to take judicial notice of the land in dispute to be within 16 kilometres radius or to hold that it was a matter exclusively within the knowledge of the Defendant/Appellant. He added that it was

axiomatic that the issue of whether or not the land in dispute is within a designated urban or rural area is clearly a matter of law. He urged on this Court to so hold and resolve this issue in favour of the Appellant.

In his response, learned counsel Mr. Hassan for the Respondents, started by emphatically maintaining that the lower Court was fully right to affirm the decision of the trial Court because the claim of the Plaintiffs/Respondents was well within its statutory and territorial jurisdiction. According to learned counsel, it was not enough for the Defendant/Appellant to merely assert that the land in dispute is within 16 kilometres radius and no more. Learned counsel Mr. Hassan then went on to submit that the Appellant was bound to establish his assertion by credible evidence that the land in dispute, which is situated at Sabon Garin Ambursa is within 16 kilometres radius. He cited the case of NDUUL V. WAYO (2018) NSCQR 75, (Part 1) 72 at 161 where the supreme Court held that he who asserts must prove. He submitted that the Appellant failed to prove his mere ipse dixit.

As a matter of law and practice, learned counsel explained that evidence elicited through cross – examination formed part of evidence of the party cross – examining the witness. And while relying on this as a foundation, learned counsel added that it is apparent from available evidence at the trial that the land in dispute was a grant by the Birnin Kebbi Local Government which was authorised by the Governor of the State in favour of the displaced people of Arabi Village as a result of perennial flood disasters. To that extent, learned counsel submitted that Section 39 (supra) does not apply to the facts and circumstances in the instant appeal. He urged on the Court to so hold. With respect to Section 41 of the Land Use Act, learned counsel is of the opinion that it supports the case of the Respondents because the land in dispute was a grant by the State Government through a Local Government.

According to Mr. Hassan, of counsel, with respect to Section 122 (1) of the Evidence Act 2011, taking judicial notice of the provisions of a law is quite different from establishing a fact that a land in dispute falls within a designated urban area. He then referred to and relied on the Kebbi State Land Use (Declaration of

Urban Areas) Notice, 1978 (Amendment) Order, 1991 and submitted that it is the responsibility of the Appellant to establish that the land in dispute is within 16 kilometres radius from the centre of Birnin Kebbi Township. He cited and quoted from the decision of this Court in MINISTRY OF LANDS and SURVEY & ANOR V. SANGERE & ANOR (2018) LPELR — 45986 (CA) where a number of decisions of the Supreme Court and this Court were reviewed and applied to the effect that it was necessary to plead and prove by credible evidence that any land in dispute is situated or located within a designated urban area for the High Court to determine its jurisdiction to grant any declaration of tittle to that land. He urged on this Court to so do and resolve this issue in favour of the Respondents and against the Appellant.

but on some occasions it is a matter of mixed law and fact. This is not totally unexpected because it is a cardinal principle of adjudication that every case must be decided upon its peculiar facts and circumstances.

With respect to the instant appeal, it must be borne in mind that it was not started or commenced by way of pleadings but on a mere complaint upon which only oral evidence was received. None of the parties relied on any other evidence other than oral evidence. Generally, no Court is allowed to decide any matter based on the whims and caprices of the judex but strictly on the evidence adduced before it.

It is against this background that I now wish to recall some of the evidence that was adduced at the trial of this action. As part of his evidence – in – chief PW1 said:
“…land in dispute was allocated to us by the Government of Col. Tunde Bello.”
(See lines 14 — 15 at page 7 of the record of appeal).
PW1 re – stated this fact as part of his cross – examination at page 9 of the record of appeal, more particularly in lines 7 and 8 thereof. Also, as part of evidence PW2 said:-

“The land was given (to) the Plaintiffs by the State Government … The defendant was also given a plot of land by the same government.”
(See lines 2 to 4 at page 12 of the record of appeal).

Also, as part of the evidence at the trial, PW3 said:
“What happened is that, during Col. Tunde Bello’s Administration we experience flood i.e., our settlements were destroyed by flood and Col. Tunde Bello ordered allocation of plots to people of Arabi, 3 plots were given to us i.e., the plots in dispute. I was given one plot while Usman Hakimi i.e., the 1st plaintiff was given one plot and Aliyu Hakimi was equally given one plot in the same area adjoin to each other. The 3 plots also adjoined the defendant’s plot and when he wanted to erect building on his plot he did not erect any structures on his plot but rather erected structures on our plots and when we saw that we brought to his notice that the structures he erected were not on his plot but on our plots, as result of this we reported him to the village head (Ardo) while Ardo decline jurisdiction to settle us and said to us that

he lacks jurisdiction to entertain our compliant and referred us to the district Head of Ambursa Late Yahaya Bawa who set up a committee of nine members. The committee visited the land in dispute i.e., they investigated the matter and found out that the defendant did not erect any structure on his plot but on our plots. The committee recommended for settlement and we all agreed i.e., both parties agreed to go for settlement and the term of settlement is that defendant to give us 3 plots which was agreed. He took the members of the committee with us and showed us the plots in exchange. He gave 3 plots for our land taken by him and after a period of time, we want to the land given to us by the defendant in an exchange in order to erect building on it. He prevented us and said to us that land (3 plots) he gave us were given to him on trust by the Local Government for safe keeping, after this, we sued him to Senior District Court I presided over by Sanda Suleiman and in Court, we presented some members of committee set up by the district Head Late Yahaya Bawa and all testified in our favour and the matter reached defence when the defendant pleaded for settlement

out of Court. We still agreed and he promised to give us 2 plots there and then. He asked for a date to handover the 3rd plot, this could not happens up till now what mean here is that after made a promise left the village to Kachi in Niger State and did not return till after a year and when he returns, we went to Court and asked the registrar to reminds him of his promise which he said that he is not going to comply with the terms of settlement i.e., giving us 3 plots of land in the end he told us that he had broken his promise “I have broken my promise”
(See lines 3 – 27 at page 15 and lines 1 – 13 at page 16 of the record of appeal)

As part of his cross-examination by the Defendant/Appellant, PW3 said: –
“It was during Col. Tunde Bello’s administration that the land i.e., 3 plots were allocated to us, but I cannot recall the year the land was allocated to us …”
(See lines 22 to 24 at page 16 of the record of appeal).

In his evidence in – chief, the Defendant/Appellant as DW1 had this to say: –

“… the land in dispute was given to me by Birnin Kebbi Local Government and I was given 6 plots of land by the said government and Birnin Kebbi Local Government is my witness and it was Birnin Kebbi Local Government that allocated the 6 plots to me…”
(See lines 3 — 6 at page 19 of the record of appeal).

During cross-examination DW1 emphasised that it was Col. Bello’s administration that authorised the allocation of plots of land to displaced residents of Arabi Village due to incidences of perennial floodings.

where the earlier decision of the Supreme Court in TUKURU & ORS V. SABI & ORS (2013) 3 SCNJ 212 was considered and applied by this Court. See also OGUNDAIRO & ORS V. OKANLANWON & ORS (1963) LPELR 25403 (SC).

Coming back to the principle of adjudication earlier reiterated in this judgment, that cases are decided upon their peculiar facts and circumstances, it may be placed on record for the purpose of emphasis that this matter was not commenced in the High Court where pleadings are filed and exchanged and issues joined before trial commences. It only began as an ordinary complaint upon which the trial Court took evidence and parties cross examined, where necessary, in terms of their respective testimonies. This scenario conjures up something unique about the facts and circumstances in this appeal. It is also peculiar that none of the parties has any documents to back up their respective claims. It is worse that the Appellant did not counterclaim.

In a long line of judicial decisions, it has been held as an elementary principle of adjudication in land matters that the dismissal of the claims of a Plaintiff does not decree title in the

defendant, he not having sought the declaration by a counterclaim. See AMUDA V. OSHOBOJA (1984) 4 NWLR (PT. 33) 27, DARMA V. BATAGARAWA (2002) 17 NWLR (PT. 796) 243 and ANWOYI V. SHODEKE (2006) 13 NWLR (PT. 996) 34, etc. All these decisions amongst many others support the principle that a Court does not possess the power to grant a relief not claimed by a party, except where they are consequential. In the circumstances of the instant appeal, among the most credible evidence before the trial Court is the preponderant fact that the land in dispute was allocated by the Birnin Kebbi Local Government. Because of the seeming illiterate status of the patties herein, any reference to any fact that the allocation of the land was by the Military Governor of the State, Col. Bello, must be read to be in the context it was meant to serve, i.e., the period or date of the allocation. It no more means that the allocation of the plots of land was made during the regime of Col. Bello as the Governor of Kebbi State. I do not think that there is any seriousness or conviction for counsel to the Appellant to suggest otherwise. It is also very preposterous and totally devoid of

seriousness or conviction for the counsel by mere ipse dixit, to suggest that the land in dispute is within 16 kilometres radius and suggesting it was covered by statutory right of occupancy. According to the case of Chief EMMANUEL ODUBU V. GIBSON AKPOREHE & ORS. (1999) LPELR — 13096 (CA), it is trite that all facts, except contents of a documents, may be proved by oral evidence which must be direct.

It is also important to emphasise that it is not in every claim for declaration of title to land that a claimant must establish exclusive possession thereof. See EIGBEJALE V. EBHOMIENLEN OKE & ORS (1996) 5 NWLR (PT. 447) 128. There is also nothing convincing or attractive in the suggestion and submission of learned counsel Mr. Sambo for the Appellant that this Court should in the circumstance take judicial notice that the land in dispute is located in a designated urban area. I therefore discountenance and disapprove that suggestion.

It is well settled and as conceded by respective learned counsel that ordinarily under the Land Use Act, lands in rural areas are subject only to the jurisdiction of Customary or Magistrate Courts, while those in

urban areas come under the jurisdiction of the High Courts. It is also settled that only the High Court of a State has exclusive jurisdiction to determine the issue of title to land in an urban area in respect of which a statutory right of occupancy has been issued. Section 39 (1) (a) of the Land Use Act is very clear and needs no further interpretation. See PATRICK ERHUNMWUNSE V. JOHN EHANIRE (2003) 5 SC 187.
The purpose which Sections 39 and 41 of the Land Use Act are meant to serve is very clear. Section 39 excludes Area, Customary or Magistrate Courts etc. from exercising jurisdiction in respect of land the subject of a statutory right of occupancy. The two Sections do not limit the jurisdiction of the High Courts. See ALHAJI KARIMU ADISA V. OYINWOLA & ORS (2000) LPELR — 186 (SC).

Now coming to the facts and circumstances in the instant appeal, and after a full and careful perusal of the most material evidence on record which has been painstakingly reproduced hereinabove, I am of the view that there is no iota of facts that establish any semblance that the land in dispute is covered by a statutory right of occupancy. There was also

no fact tending to show that the land in dispute is located within a duly designated urban area as contemplated and provided by the Kebbi State Land Use (Declaration of Urban Areas) Notice, 1978 (Amendment) Order 1991 Part A, of which provides that urban areas are land that are located within 16 kilometre radius from the centre of Birnin Kebbi, Argungu, Zuru and Yauri towns. I do not believe that there can be any doubt about that or that it is possible to argue to the contrary.

In view of the preponderant evidence before the trial Court, which the lower Court also accepted that the land in dispute was allocated to the Respondents and the Appellant by the Birnin Kebbi Local Government Council during the tenure of Colonel Bello as the Governor of Kebbi State, it is my view and belief that the finding of the lower Court that the land in dispute is located within a designated non-urban area cannot be faulted and must be upheld. It is accordingly so upheld and issue one is therefore resolved against the Appellant.

With respect to the determination of the 2nd issue in this appeal, I wish to remark as a preliminary fact that learned counsel Mr.

Sambo for the Appellant tried to hoist on the Court a totally incorrect narrative. The fact that the Defendant/Appellant told the lower Court that the Birnin Kebbi Local Government Council was one of his witnesses and he failed to adduce the evidence of that witness, after a full opportunity to do so cannot be overlooked and glossed over in the circumstances of this appeal.

It is unfair and totally wrong for counsel Mr. Sambo, for the Appellant to continue to insist that the land in dispute was not allocated by the Birnin Kebbi Local Government Council, in the absence of any clear and credible evidence showing or establishing otherwise. It is in vain and of no moment for the Appellant and/or his counsel to continue trying to sweep under the carpet a well-established fact that any reference to the office of the Governor of Kebbi State was only as to reference to time but not any act of allocation of land under a Statutory right of occupancy.

I have read through the entirety of the adduced and recorded evidence at the trial and I am fully satisfied that there was sufficient evaluation of the evidence and the concurrent findings of the Coutts below cannot be faulted.

After having considered all the submissions and arguments of respective learned counsel and my remarks hereinabove, issue two is resolved against the Appellant.

In arguing issue three for determination, learned counsel to the Appellant recalled that the trial Court had ordered the Appellant to remove all the structures put up on the land in dispute within 30 days. Against that backdrop, learned counsel was quick to point out that it is in the evidence of both parties that the putting up of structures on the land in dispute predated the commencement of their suit and also there was no evidence that any construction activities took place during the pendency of the matter. And while relying on the decision in F.C.D.A. V. UNIQUE FUTURE LEADERS INT. LTD (2014) 17 NWLR (PT. 1436) 213 at 221, learned counsel Mr. Sambo argued and submitted that it was wrong for the lower Court to uphold the order of the trial Court for the Appellant to remove any buildings on the land in dispute and surrender vacant possession to the Respondents within 30 days. Also, according to learned counsel, this order is untenable and wrongful because it was not followed by an order for compensation to the Appellant by the Respondents.

Apart from pointing out that the Appellant was a trespasser on the land in dispute, learned counsel to the Respondents merely added that the lower Courts were magnanimous to the Appellant.

In determining this issue, it is important to bear in mind that in the instant appeal trespass is an unwarranted or unjustifiable entry or intrusion by the Appellant upon the land of the Respondents. In law, trespass does not depend on any state of mind or intention of the Appellant and he cannot plead any ignorance as to the true owner or that he thought the land belonged to him. See DANTSOHO V. MOHAMMED (2003) 6 NWLR (PT. 817) 457. It is also the law that trespass is actionable per se without the need of proof of any actual damage. See ZENITH BANK PLC. V. UMOM (2013) LPELR — 22001 (CA). A party who proves trespass is entitled without more to general damages. The entitled without more to general damages. The entitlement to general damages is presumed by law to flow naturally and as a direct consequence of the wrongful interference with the right to exclusive possession complained by

the claimant. It is axiomatic that general damages in law need not be pleaded and proved in an action for trespass to land since it is not based on any accurate basis but usually objective test of what is reasonable in the peculiar circumstances of the case as disclosed by the facts. It was because, both the trial Court and the lower Court did not make any order for compensation against the Appellant by way of an award of damages that learned counsel was referring to the two Courts having been magnanimous.

As pointed out above trespass is actionable per se. In the instant appeal, there is no magic wand the lower Court would have wielded to produce a different or contrary view of the law. And where there is trespass or encroachment or an illegal structure on a person’s land, the proper order to make is for the illegal structure to be removed. See MALLAM MOHAMMED DANJUMA V. NASIRU & ANOR (2015) LPLER – 25922 (CA) per Abba Aji, J.C.A. (as he then was). It is quite clear that the facts and circumstances in the appeal and cross appeal in the case of F. C. D. A and ORS V. UNIQUE FUTURE LEADERS LTD (supra) are significantly different from the ones in this

appeal. The case is cited by learned counsel Mr. Sambo for the Appellant is totally irrelevant and inapplicable. It cannot be of any assistance to the case the Appellant.

This appeal is devoid of any merit, it is accordingly dismissed. The judgment of the Kebbi State High Court delivered on 23rd March, 2015 in suit No. KB/HC/66A/2014 is affirmed.
No order for costs.

FREDERICK OZIAKPONO OHO, J.C.A.: I had a preview of the draft of the Judgment just delivered by my Learned Brother, ALI A. B. GUMEL, J.C.A. I am in agreement with his reasoning and conclusion in dismissing this appeal as totally lacking in merit. I abide by the consequential orders made thereto.

ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of preview of the leading judgment just delivered by my learned brother ALI A. B. GUMEL, J.C.A. I am in entire agreement that the appeal is devoid of any merit and therefore ought to be dismissed. Same is dismissed by me. I abide by the consequential order in the lead judgment.

No order for cost.

Appearances:

Mr. M. A. Sambo For Appellant(s)

Mr. Aminu Hassan For Respondent(s)