LADI ARIYO & ORS. v. ALHAJI JUBRIL ADEWUSI & ORS. (2010)

LADI ARIYO & ORS. v. ALHAJI JUBRIL ADEWUSI & ORS.

(2010)LCN/3655(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of March, 2010

CA/L/340/2005

RATIO

LAND LAW: WAYS OF PROVING OWNERSHIP OF LAND

It is the law that there are five ways of proving ownership of land in Nigeria. These ways are: –

By traditional evidence.
By production of documents of title.
By proving acts of ownership numerous and positive enough to warrant an inference that the person is the true owner;
By proving acts of long possession and enjoyment under Section 45 of the Evidence Act; and
By proof of possession of connected or adjacent land. See Alhaji goni Kyari v. Alhaji Ciroma Alkali & Ors (2001) 5 SCNJ4 21; Ahaneku v. Iheaturu (1995) 2 NWLR (Pt.38) 761. PER PAUL ADAMU GALINJE, J.C.A.

LAND LAW: ON WHOM LIES THE BURDEN TO PROVE IN A SUIT FOR DECLARATION OF TITLE

See Chief Victor Woluchem & Drs. v. Chief Simeon Gudi & Ors (1981) 5 SC 291. PER PAUL ADAMU GALINJE, J.C.A.

EVIDENCE: WHAT DOES MERE TENDERING OF AN INSTRUMENT OF TITLE TO LAND INFER

It is trite law that mere tendering of an instrument of title to land, such as a Deed of Conveyance or a certificate of statutory or customary right of occupancy in Court does not automatically prove that the land therein purportedly conveyed, granted or transferred by the instrument becomes the property of the grantee. The existence of a certificate of occupancy is merely a prima facie evidence of title to the land it covers and no more.

See Prince Ngene v. Chike Igbo & Anor. (2000) 4 NWLR (Pt. 851) 131; Alhaji Goni Ryari v. Alhaji Ciroma Alkali & Anr (Supra). PER PAUL ADAMU GALINJE, J.C.A.

LAND LAW: WHAT A CLAIM FOR DAMAGES FOR TRESPASS IS AT WHAT INSTANCE

The law is settled that a claim for damages for trespass is at the instance of a person in lawful possession of the land. See Akinkugbe v. E. N. (Nig.) Ltd. (2008) 12 N.W.L.R. (pt.1098) SC 375. PER REGINA OBIAGELI NWODO, J.C.A.

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

IBRAHIM M MUSA SAULAWA Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

LADI ARIYO & ORS. Appellant(s)

AND

ALHAJI JUBRIL ADEWUSI & ORS. Respondent(s)

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): At paragraph 40 of the 3rd Amended Statement of claim dated 28th of March, 1994, the Respondents herein who were the Plaintiffs at the lower Court claimed against the Appellants in this appeal as follows:-
‘1. A declaration that the descendents of Olaogbe and Sunmola Gedengbe and relations of Sunmonu Akano are the persons entitled to a right of occupancy over the land verged red in plan number SBS/144/93L drawn by Sunday B. Saidi licensed Surveyor, and dated the 12/05/93.
2. The sum of N50,000:00 as damages for trespass to the said land.
3. A perpetual injunction restraining the defendants and other members of the Oke Ogbere family, whether by themselves, their servants and/or agents whomsoever from further trespassing on the said land verged yellow in plan number SBS/144/93L drawn by Sunday B. Saidi, licensed surveyor, and dated 12/05/93′.

In response to the Respondents’ claims, the Appellants filed a statement of defence dated 23rd of July, 1996 and after paragraph 26 of the statement of defence, the Appellants set out the following counter claims as follows:-
(i) Declaration that the Defendants are entitled to the statutory Right of Occupancy in respect of all the piece or parcel of land shown on survey plan No. LAT/1175/76A dated 4th day of December, 1976 filed along with the statement of Defence and counter claim.
(ii) Perpetual Injunction restraining the plaintiffs, their servants, Agents and/or privies from committing further acts of trespass upon the land in dispute.
(iii) N50,000 damages for trespass upon the land in dispute’.

Issues having been joined, the case was accordingly set down FOR TRIAL. Witnesses were called by both parties and several documents, which will be looked into in course of this judgment, were tendered and admitted in evidence. At the end of the trial and in a reserved and considered judgment which was delivered on the 27th day of January, 2005, the lower Court granted all the claims of the Respondents and dismissed the counter claim of the Appellants in its entirety. It is against this judgment that the Appellants have appealed to this Court, initially by a notice of appeal dated 2nd January, 2005 and filed the same date. However, this notice of appeal was amended and further amended. The final notice of appeal is the one titled ‘2nd Amended Notice of Appeal’, and it is dated 30th April, 2008 and filed on the 5th of May, 2008. This final notice of appeal contains sixteen grounds of appeal.
Learned counsel for respective parties filed and exchanged briefs of argument. Mr. Jimoh Lasisi, learned senior counsel for the Appellants formulated 7 issues for the determination of this appeal at pages 2-3 of the Amended Appellants’ brief of argument dated 30th April, 2008 and filed on the 5th of May, 2008. These issues are hereunder reproduced as follows: –
1. Whether the learned trial Judge was right when she held that the plaintiffs proved ownership of the land subject-matter of this case.
(2) Whether the evidence of boundary men called by the plaintiffs to support the plaintiffs’ case for title ought to have been (sic) any weight at all.
(3) Whether Exhibit D (Plan No. LAT/1175/76) an uncertified plan is admissible and has any probative value under the provisions of Section 3(1) (b) (i) Cap 132 LLS Regulations 31 made under the Survey Law and Evidence Act.
(4) Whether the evaluation of the oral and documentary evidence by the learned trial Judge did not occasion a miscarriage of justice.
(5) Whether the plaintiffs proved the claim for damages for trespass and title against the defendants.
(6) Whether the learned trial Judge was wrong when she held that the evidence adduced by the defendants cannot sustain the counterclaim.
(7) Whether the judgment is not against the weight of evidence’.
Learned Senior Counsel also filed an Appellants’ reply brief on the 16th October, 2009.
Miss. Irene Robinson, learned counsel for the Respondents, who settled the Respondents’ brief of argument dated 9th March, 2007 and filed on the 7th October, 2009 adopted issues (1), (4), (5), (6) and (7) as formulated by the Appellants and in addition formulated the following Issues: –
(2) Whether the evidence of boundary men called by the plaintiffs ought to have been given any weight at all and if not, whether the judgment of the lower court ought to be reserved.
(3) Whether exhibit D (Plan number LAT/1175/76) was wrongfully admitted in evidence and it had no probative value having regard to the provisions of the survey law and regulations and Evidence Act because it was uncertified and if so whether a miscarriage of justice was occasioned by its wrongful admission in evidence (The adoption and formulation of issues are at pages 3-4 of the Respondents’ brief of argument)’.
I have carefully read the judgment of the trial Court, the grounds of appeal and the issues formulated from such grounds of appeal for the determination of this appeal. I have found that the judgment was based on the evaluation of traditional evidence adduced before the lower Court and ascription of probative value to such evidence. On that basis, it is my firm view that the only issues calling for determination of this appeal are: –
1. Whether the lower Court properly assessed the evidence adduced before it and correctly ascribed probative value to such evidence.
2. Whether the Respondents proved damages for trespass against the Appellants.
It is the law that there are five ways of proving ownership of land in Nigeria. These ways are: –
1. By traditional evidence.
2. By production of documents of title.
3. By proving acts of ownership numerous and positive enough to warrant an inference that the person is the true owner;
4. By proving acts of long possession and enjoyment under Section 45 of the Evidence Act; and
5. By proof of possession of connected or adjacent land. See Alhaji goni Kyari v. Alhaji Ciroma Alkali & Ors (2001) 5 SCNJ4 21; Ahaneku v. Iheaturu (1995) 2 NWLR (Pt.38) 761.

The law is equally settled that the onus of proof in a suit for declaration of title lies on the Plaintiff who must succeed on the strength of his own case and not on the weakness of the Defendant’s case.
See Chief Victor Woluchem & Drs. v. Chief Simeon Gudi & Ors (1981) 5 SC 291.
In the present appeal, only three of the five ways of prove of titles were adopted by both parties. These are:-
1. By traditional evidence.
2. By proving acts of ownership numerous and positive enough to warrant an inference that the person is the true owner;
3. By proof of possession of connected or adjacent land.
Before I delve into consideration of the methods adopted by parties in prove of their title and their handling by the lower Court, I wish to briefly comment on the Appellants’ issue 3 which dealt extensively with Exhibit ‘D’ (Plan No. LAT/1175/76). The lower Court did discountenance with this exhibit as unacceptable. The exhibit was held to be fake as it was not signed and stamped. At pages 373-374, of the printed record of this appeal, the lower Court said:
‘Exhibit ‘D’ by DW 4 testimony is fake as such not acceptable or it has no probative value. The evidence before the Court show that exhibit ‘D’ and Exhibit ‘W’ are the same which were made by DW4. Whereas Exhibit ‘D’, which DW4 admitted in evidence was deliberately and deceitfully made to look as if it did not emanate from him by not signing same and stamping it, is the same as Exhibit ‘W’, which he deliberately signed and stamped. Again Exhibit ‘W’ is the original copy of Exhibit ‘E’ in the proceeding prepared also by DW 4, Exhibit ‘D1’, ‘W’ and ‘E’ have been established in this judgment by evidence to have the same distinguishing features and made by DW 4. If Exhibit ‘D’ is admitted to be fake by DW 4 who made it then Exhibits ‘W’ and ‘E’ made by him with the same features are also fake. The Court hereby discountenances them in this judgment as they have no probative value’.

By the passage of the judgment I have hereinabove reproduced, the lower Court did resolve that exhibit ‘D’ was wrongly admitted in evidence as such it has no probative value. Having so resolved, it will be a waste of time to entertain argument on the same subject matter. Exhibit ‘D’ lodged with the Surveyor-General under Section 3A of the Survey Law as amended and Regulations 37 of the Survey Regulations are public documents within Section 109 of the Evidence Act, and if not signed are not admissible in evidence.
Now the appeal herein clearly attacks the findings of facts and seriously challenges the judgment of the lower Court in an area that is only narrowly open to this Court.The appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of a tribunal of trial and a Court of Appeal would only interfere with the performance of that exercise if the trial Court has drawn wrong conclusions from accepted or proved facts. See Eki v. Giwa (1977) 11 NSCC 96; Fashanu v. Adekoya (1974) 1 All NLR (Pt.1) 35 at 41.

On the traditional history the lower Court relied on the testimonies of PW 1 and PW 10 and held as follows: –
”In my view PW1 and PW10 traced their root of title to Ogundairo Bashorun, the first to settle on the land in dispute and linked it with the plaintiffs herein as pleaded in paragraphs 11, 16 to 22 of the 3rd Amended statement of claim. The testimonies of PW1 and PW10 therefore in my view confirmed the links of the 1st, 2nd and 3rd plaintiffs with original settler”.
However, for the Appellant, the lower Court relied on the testimonies of DW 6 and held: –
‘On the other hand, the Defendants in paragraphs 8 to 12 and 15 of the 1st Amended Statement of Defence and counterclaim merely pleaded their root of title by tracing it to Ogbere and his three children and stopped there. DW6 also gave evidence in proof of those paragraphs. DW6 did not in his testimony give evidence linking the Defendants herein with Ogbere as done by the plaintiffs in their own traditional history by linking it with Ogundairo Bashorun. Where traditional evidence fed by both parties conflicts, the Court is to test their evidence with acts of ownership’.
The learned trial Judge then summarised the evidence of PW1, PW10 and DW6 and came to conclusion that the traditional evidence of the Respondents on the disputed land is preferred than the traditional evidence of the Appellants when evidence of both parties is tested with acts of ownership. Then learned trial Judge cited Exhibits ‘Q-Q3’ (Certificates of Occupancies issued to purchasers of land sold by the Plaintiffs by Lagos State Government) as positive acts of ownership of the land by the Respondents.
Mr. Jimoh Lasisi, learned senior counsel for the Appellants forcefully argued that DW6, Alhaji Tajudeen Lawal in his evidence has clearly linked Ogbere with the Appellants when he testified as follows: –
‘Ogbere had 3 surviving children who are (1) Olumokun, (2) Aro (3) Aganna. Ogbere family branches are three. 1st Defendant is from Aro branch. I am from Olumokun branch i.e. 2nd Defendant, 3rd Defendant is from Aro branch, 4th Defendant is from Aganna branch, 5th Defendant is from Aro branch. The surviving children from the 3rd branches of Ogbere inherited the land’.
In a further argument, learned senior counsel submitted that Exhibit ‘Q-Q3’ cannot be evidence of acts of ownership unless there is evidence that the purchasers were in actual possession of the land.
Learned senior counsel then contended that the failure of the Respondent to call the purchasers to testify is a proof that those purchasers in Exhibit ‘Q-Q3’ were not in possession of the said land. Learned senior counsel cited Bristow v. Cormican (1878) 3 App. Cases 64 and Umeojiako v. Ezenamuo (1990) 1 NWLR (Pt. 126) 253 at 267 to support his submission.

I therefore agree with the learned senior counsel for the Appellant that Exhibit ‘Q-Q3’ is not evidence that those who purchased land from the Respondents are in possession or are the owners of the pieces of land they purchased. Their title to those pieces of land depended on unqualified title to the piece of land in contention by the Respondents. It is therefore my firm view that Exhibit ‘Q-Q3′ cannot be evidence of acts of ownership unless it is proved that the purchasers were in actual possession of the land and had carried out physical development upon it. Such evidence is not available.
On the issue of the boundary men, the trial Court made reference to the evidence of PW4 and PW 7 who are from Amuwo Odofin family and Onitire family respectively, who testified that they are boundary men to the Respondents’ land and DW3 from Okota family who testified that he is a boundary man to the Appellants and held that the Appellants never called any boundary men from Itire or Amuwo Odofin to testify that his family shared common boundary with the Appellants’ family on the land in dispute like the Respondents did. Learned trial Judge went on to believe the testimonies of PW 4 and PW 7 as credible on the ground that evidence before the Court establishes that it is not the Okota family that is the only boundary men of the Appellants in the land in dispute.
Mr. Jimoh Lasis, learned senior counsel for the Appellants submitted that the Appellants called more than one boundary men. According to the learned senior counsel, the Appellants also called Surakatu Amida (DW1 from Fagbile family, who is also a boundary man to the Appellants land. Learned senior counsel referred to the evidence of PW 7 and contended that his evidence is not credible because he as a boundary man admitted under cross examination that he did not know who the Respondents followed to the farm and that he was not in a position to know whether the Respondents are descendants of Ogundairo Bashorun. In a further argument, learned senior counsel submitted that PW 10 admitted under cross examination as follows:-
‘Amuwo Odofin is one of our boundary men and we have the same boundary with Itire family, Oshoboja and Fagbile family are our boundary men. Oke Ogbere the defendants too are our boundary men’.
According to the learned senior counsel, PW 7 contradicted the evidence of PW10 who admitted the existence of Oke Ogbere family. Still in argument, learned senior counsel submitted that the admission of PW4 Alhaji Kassim O. Sabiu under cross examination that Sunmonu Akano and Ogundairo Bashorun belong to Amuwo Ododin family discredited the case of the Respondents, and also the admission by PW 10, Mutiu Bashorun, the 3rd Respondent that his father who is the son of Asani who is the son of Ogundairo Bashorun, the son of Amuwo Odofin are self serving and ought not to have been given any weight.
Finally, learned senior counsel submitted that it is clear from the evidence on record that the claimants in this case are members of Amuwo Odofin who split themselves to claim this land under the fictitious family name.
For the Respondent, Miss Irene Robinson submitted that DW1 had been found by the Court to be an unreliable witness and his evidence rejected, as such the Court was right to have come to conclusion that the Appellants only had evidence from one boundary man whose evidence was also rejected by the Court.
In a further argument, learned counsel submitted that the evidence of PW4 and PW10 which linked the Respondents with Amuwo Odofin is consistent with the averment in the 3rd Amended statement of claim upon which this case was decided at the lower court. according to the learned counsel, there was no contradiction between the evidence of PW7 and that of PW4 and PW10. Finally learned counsel urged this court to refrain from interfering with the assessment of the evidence in this matter at the lower court.
It is refreshingly clear that the Appellants called as witnesses two boundary men. These are the DW1 and DW3. However at page 371 paragraph one, the learned trial judge discountenanced the evidence of DW1 in the following words:-
“DW1 in my considered view is not a witness of truth. Under cross examination in chief on 9th October, 2001, DW1 testified he never heard of Ogundairo Bashorun Sunmonu Akano family not to talk of its owning the land in dispute. Under cross examination on 23rd January, 2002 DW1 testified that both plaintiffs family representations and the Defendants held a meeting at his house in respect of the land in dispute on 2nd October, 1998 and that the Defendants and himself were all present. Exhibit T which are the minutes of that meeting signed by those present from both families were tendered through him. How come then that DW1 earlier claimed not to know the Plaintiffs’ family and that no meeting was held by the two families to resolve conflict on the land in dispute”.
Since DW1 was declared as a liar, even if the learned trial Judge had made reference to his testimony as a second boundary man that would have made no difference. The learned trial Judge referred to the evidence of DW4, and DW6 and held that they are liars too and that their evidence was incapable of being believed.

As I have clearly stated elsewhere in this judgment, an appellate Court has no jurisdiction to interfere with the assessment and evaluation of evidence of a trial Court in the absence of special circumstance warranting such interference. Such special circumstance can be where the trial Court has made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not support or indeed has approached the determination of these facts in a manner which those facts cannot and do not in themselves support. See Eki v. Giwa (Supra); Akomolafe v. Guardian Press Ltd (2004) 1 NWLR (Pt. 853) 1.

The averment in paragraphs 6, 9, 11 have clearly established linkage between the Respondents and Amuwo Odofin family. Theses paragraphs are hereunder reproduced as follows: –
‘6. A long time ago one Olaogbe, male, went from Isolo in the now Oshodi/Isolo Local Government Area of Lagos State to Amuwo Odofin in the now Ojo Local Government Area of Lagos State and married one Eruogun a native of Amuwo Odofin. She went with him to settle at Isolo.
9. Ogundairo Bashorun grew up in Isolo but on the request of Odofin the father of Eruogun his mother he moved to and lived in Amuwo Odofin where he became a hunter who used to go on hunting expeditions to neighbouring forest or bushes and beyond to hunt wild animals including elephants and to fish.
11. From then on Ogundairo Bashorun used to go to the said land from Amuwo Odofin to hunt, fish and farm thereon and sometimes he used to stay there for up to 17 days at a time to harvest his crops before returning to Amuwo Odofin’.
The averment herein support the evidence of PW4 and PW10. It is therefore not true that the claimants at the lower Court who are Respondents herein are members of Amuwo Odofin who split themselves to claim the land under fictitious family names. It is very clear that the Respondents’ linkage with Amuwo Odofin is through their mother. On the whole therefore I find that the evaluation of the evidence by the learned trial Judge did not occasion a miscarriage of justice.
On the 2nd issue which is the same as the Appellants’ issue number 5, Mr. Jimoh Lasisi, learned counsel for the Appellants submitted that the learned trial Judge did not evaluate any evidence to enable her conclude that the Defendants’ (Appellants herein) trespassed on the Plaintiffs’ land. Learned Senior counsel postulated that if Exhibit ‘B’ is disregarded for lack of probative value then the Plaintiffs claim for declaration of ownership, damage for trespass and injunction will fail because the identity of the land claimed cannot be ascertain. Learned senior counsel insisted that the lower Court should not have attached any weight to exhibit ‘B’ because-
1. Exhibits ‘E’ and ‘W’ were not contained in it.
2. It contained Exhibit ‘A’, Exhibit ‘C’ and the uncertified and inadmissible Exhibit ‘D’.
3. It did not contain Exhibit ‘Y’.
For the Respondents, Miss. Robinson Esq. of counsel submitted that the lower Court properly evaluated the evidence of trespass by both parties and believed the totality of the evidence of the Respondents as to title and trespass to the disputed land. Learned counsel further contended that the Appellants in their pleadings and evidence had admitted that they had entered the land and had put tenants, built houses and were in possession. In a further argument, learned counsel submitted that there is no legal basis upon which Exhibit ‘B’ should be disregarded by the Court for lacking probative value because it identifies all the plans of the parties.
Finally, learned counsel submitted that the pleadings of the parties and the evidence adduced in support show clearly that both parties know the disputed piece of land. According to the learned counsel even in absence of Exhibit ‘B’, the composite plan, by the averments and the evidence of the two sides, the disputed land was clearly identifiable. In conclusion learned counsel urged this Court to dismiss the appeal on this issue.
The issue under consideration here is whether the Respondents proved damages for trespass against the Appellants. Trespass is an unlawful act committed against the person or property of another. In the instant case, I will be looking at trespass as an unlawful act against the property of another. In Dantsoho v. Mohammed (2003) 6 NWLR (Pt. 817) 457 at 488, the Supreme Court, per Katsina-Alu, J.S.C.as his words: –
“Trespass is an unwarranted or unjustifiable entry or intrusion by one person upon land in possession of another. It does not depend on the intention of the trespasser. Nor can he plead ignorance as to true owner or that he thought the land belonged to him. It is enough that the right of the owner or person in exclusive possession was invaded”
In the same case of Dantsoho v. Mohammed (Supra) at page 488-489 paragraph H-B Katsina Alu, J.S.C.(as he then was) held:-
‘The Respondent as the plaintiff here, claimed ownership of the land in dispute as per exhibit ‘1’. the defendant, the appellant herein, also claimed ownership of the same piece of land as per exhibit ‘4’. The parties have thus joined issue on their title on the land in dispute. That being the case what falls for the determination is who has a better title.

I have earlier an in this judgment resolved the issue of title in favour of the Respondent. The Appellant failed to prove a valid title and his possession of the land in question was that of a trespasser.
In the instant case, the issue of title has been resolved in favour of the Respondents. The Appellants who counterclaimed the disputed piece of land failed to prove a valid title. Their possession of any part of the land in dispute amount to an act of trespass. The question now is, are the Appellants in possession of any part of the disputed land?
DW6 admitted in his evidence in chief that the Appellants are in possession of the disputed land in the following words: –
“Oke Ogbere family are now in possession of the land in dispute. We built houses, farm on the land and give out plots to some people to build. We have not trespassed on the plaintiffs’ land as the land in dispute is our land”.
See page 326 lines 18-22 of the record of appeal. The admission by DW6 that the Ogbere family are in possession of the land and have put in place structures has clearly put the Appellants on the saddle of trespassers. Since the Respondents are adjudged to be owners of the disputed piece of land.

Mr. Jimoh-Lasisi, SAN, argued that if exhibit B is disregarded for lack of probative value then the Plaintiffs claim for declaration of ownership, damages for trespass and injunction will fail because the identity of land claimed cannot be ascertained. This argument with respect to the learned senior counsel is without basis. Identity of the disputed land was never made an issue during the trial. It follows therefore that even in absence of Exhibit B, the disputed piece of land is clearly identifiable. This is by virtue of the pleadings and evidence from both sides.
In Olunjile v. Adeagbo (1988) 19 NSCC (Pt.1) 625, the Supreme Court had this to say:-
“That it is now perfectly settled that a survey plan is not a sine Qua non in every land case. This is especially so when both parties know the quantity and quality of the land in dispute between them. In this appeal both parties do know the quantity and quality of the land in dispute and as such a plan ceases to be and absolute necessity”.
See also Chief Daniel Allison Ibulunya & Ors. v. Tom Benebo Dikibo & Ors. (1976) 6 S.C. 97 at 107; Chief Sokpui v. Chief Agbozo (1951) WACA 241; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360.
On this issue, I am satisfied that the Respondent has proved that the Appellants trespassed into their property and the damages so awarded are proper. This issue is therefore resolved in favour of the Respondents.
On the whole I find the appeal lacking in merit. Accordingly same is hereby dismissed. The Respondents are entitled to the cost of this appeal which I assess at N30, 000:00.

IBRAHIM M. MOHAMMED SAULAWA, J.C.A.: My learned brother, Galinje, J.C.A., had served upon me a copy of the draft of the lead judgment prepared and just delivered by him. I agree with the reasoning and conclusion reached therein, to the effect that the appeal is lacking in merit.
Having therefore adopted the reasoning and conclusion as mine, I too hereby dismiss the appeal for being unmeritorious, I abide by the consequential order of cost of N30,000 awarded in favour of the Respondents.

REGINA OBIAGELI NWODO, J.C.A.: I read in advance the lead Judgment of my learned brother, Galinje J.C.A. just delivered. I agree with the reasons advanced therein to arrive at the conclusion that the appeal is devoid of merit.
The law is settled that a claim for damages for trespass is at the instance of a person in lawful possession of the land. See Akinkugbe v. E. N. (Nig.) Ltd. (2008) 12 N.W.L.R. (pt.1098) SC 375. The lower court made its findings on possession and trespass. The law is sacrosanct that the Appellate courts are generally very reluctant to exercise their power and attempt to re-assess the amount of damages which the Learned trial Judge had awarded except where it is established that the Learned trial Judge had proceeded upon a wrong principle of law that the award was clearly erroneous or manifestly too large or too small. See His Highness Ugo 1 v. Egware (1974) 1 All N.L.R. (pt.1) 293.There is no evidence to warrant an upset of the award of the lower court as to damages.
For the fuller reason in the lead Judgment I find the appeal lacking in merit, I also dismiss the appeal and abide by the order as to cost.

Appearances

Mr. Jimoh Lasis, SANFor Appellant

AND

Miss. Irene Robinson, Esq.For Respondent