LATEEF ADEGBITE & ANOR v. AMINU AMOSU (2013)

LATEEF ADEGBITE & ANOR v. AMINU AMOSU

(2013)LCN/6426(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of July, 2013

CA/L/359/07

JUSTICES:

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

Between

1. LATEEF ADEGBITE
2. NOFIU OLAOSEBIKAN – Appellant(s)

AND

AMINU AMOSU
(For himself And on behalf of EYILE FAMILY) – Respondent(s)

RATIO

WHETHER OR NOT WHERE A CLAIM FOR TRESPASS IS COUPLED WITH A CLAIM FOR INJUNCTION, THE TITLE OF THE PARTIES IN DISPUTE IS AUTOMATICALLY PUT IN ISSUE

Further, it is trite law that where a claim for trespass is coupled with a claim for injunction, the title of the parties to the land in dispute is automatically put in issue. The Claimant is consequently under a duty to prove his title to the disputed land. Fayemi v Awe [2009] 15 NWLR (Pt. 1164) 315. PER IYIZOBA, J.C.A.

METHODS OF PROVING OWNERSHIP OF TITLE TO LAND

WHETHER ORNOT STATEMENT MADE BY A PERSON INTERESTED AT THE TIME WHEN PROCEEDINGS WERE PENDING OR ANTICIPATED INVOLVING A DISPUTE CAN BE RENDERED INADMISSIBLE

In the case cited by learned counsel for the Appellants, J. DUROJAIYE ADETORO & ORS. VS. OLUWAKITAN TRADING CO. LTD. & ANOR (2002) 9 NLWR (PT 771) 157 AT 167 RATIO 13 the Court of Appeal Ibadan Division per M. O. ONALAJA JCA stated:
“By virtue of the provision of section 91(3) of the Evidence Act nothing in the section shall – render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish. In other word a statement made by a person interested at a time when a dispute was anticipated or likely is inadmissible, as a person interested is not confine to the matter of the document. It includes any person whatsoever provided he is interested. There must be a real likelihood of bias before a person making a statement can be said to be a person interested”. PER IYIZOBA, J.C.A.

WHETHER OR NOT THE COURT CAN AWARD WHAT IS NOT CLAIMED BY A PARTY

It is trite that a court should not award that which is not claimed by a party because the court is not a charitable organisation. Courts of law are legal institutions for the adjudication of matters and award of relief or reliefs duly sought by the parties in the litigation process. See Babatunde vs Texaco (Nig) Ltd (1978) 9-10 SC 71; Ayalogu v Agu (2002) 3 NWLR (Pt 753) 168; Ogunlade v F.M.B. (Nig) Ltd (2007) 2 NWLR (Pt. 1017) 16; ETIM EKPEYONG AND 3 ORS V INYANG EFFIONG NYONG AND 6 ORS (1975) 2 SC (REPRINT) 65 AT 74. PER IYIZOBA, J.C.A.

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): The Claimant/Respondent for himself and on behalf of Eyile Family by his amended writ of summons and statement of claim claimed against the Defendants/ Appellants as follows:
(a) Declaration that the 1st Defendant has forfeited his right to be on the land of the Plaintiff situate lying and being at 401, Oshodi Express Road, Pleasure Bus Stop, Oke – Odo, Agege, Lagos State which he held of the Plaintiff as a tenant thereof.
(b) Possession of the said land.
(c) N500, 000.00 against the Defendants being damages for trespass committed on the said Plaintiff’s land at Oke-Odo which was not granted to the Defendants as tenants.
(d) An injunction restraining the Defendants, their servants, agents or privies or howsoever described from committing any acts of trespass on the said Plaintiff’s land.
The facts giving rise to the institution of the suit are that the original claimant on behalf of the Eyile family Madam Wasilatu Olapeji who died in the course of the proceedings and was substituted by her son Aminu Amosu claimed to be the owner of the land in dispute as shown in the survey plan Exhibit A, which she claimed was given to her by partition of the Akinlabi family land. She claimed that she rented the land to the 1st Defendant who was issued a receipt Exhibit B. She claimed that after the expiration of the period of the rent paid for, the 1st Defendant refused to pay any further rent. Subsequently, the 1st and 2nd Defendants began to claim ownership of the land in dispute, saying that they bought the land from one Tunde Akapo, one of the members and attorney of the Akinlabi family as per Exhibit F. The Claimant’s case was that the land no longer formed part of the Akinlabi family land after it was partitioned and given to her. Tunde Akapo consequently had no right to lay claims on the land or sell same to the 2nd Defendant or anyone. As evidence of the partition, Exhibit E was tendered in court through its maker CW4 who happened to be one of the lawful attorneys appointed by the Akinlabi family in Exhibit F to manage the Akinlabi family land. The Claimant claimed that as Tunde Akapo did not have her consent to sell the land to the 2nd Defendant the sale was void and the 2nd Defendant was a trespasser on the land. She contended that although Tunde Akapo was one of the lawful attorneys in Exhibit F, he could not sell the disputed land as the authority in Exhibit F which he relied on did not extend to the sale of the Claimant’s land which was not part of the family land. The 2nd Defendant on the other hand in his statement of defence maintained that the land sold to him by Tunde Akapo was the Akinlabi family land and that the said Tunde Akapo as a lawful attorney as shown in Exhibit F had the authority to sell the land to him.
At the hearing, the Claimant called four witnesses while the Defendant called three. At the conclusion of hearing and adoption of written addresses, the learned trial Judge Akanbi J. delivered judgment on 29/6/06 granting reliefs (a), (c) and (d) of the amended writ of summons. He also ordered immediate possession of the land in dispute in favour of the Claimant. Dissatisfied with the judgment, the Appellant filed a notice of appeal which was later amended. From the amended notice of appeal which contained 7 grounds of appeal, the Defendants now Appellants formulated five issues for determination as follows:
1. Whether considering the pleadings of the Claimant, the evidence and documents adduced by Claimant and his witnesses in support thereof, has claimant who relied on partitioning of AKINLABI FAMILY LAND and subsequently the AKAPO BRANCH of AKINLABI FAMILY LAND as the root of her entitlement to the land in dispute succeeded in proving same? Should the answer be in the negative, has this not occasioned a gross miscarriage of justice? (Grounds 1 & 4)
2. Whether the 1st Defendant has by his defence through the uncontradicted and unshaken evidence of his expert witness a Licensed Surveyor coupled with the evidence of the Claimant’s witnesses shown that he is not on any land purportedly claimed by Claimant, rather 1st Defendant is on AKINLABI FAMILY LAND unpartitioned. (Ground 2)
3. Whether the learned trial judge can unilaterally grant more than the claimant’s request for possession simpliciter as sought for on the writ of summons and that, without calling for any inputs from the parties, a device violating the constitutional RIGHT OF FAIR HEARING under Section 33 of the 1979 Constitution, of the Federal republic of Nigeria. (Ground 3)
4. Whether learned trial judge can grant the 2 inconsistent reliefs of possession and trespass more so that the authoritative pronouncement of Hon. Justice G.B.A Coker (JSC as he then was) in AROMIRE V AWOYEMI (1972) 2 SC (Reprint) 1 at 7 lines 10 to 30 was brought to the attention of the learned trial judge in the defendants’ written address (at pages 142 to 144 of the record). If the answer is negative has same not occasioned a miscarriage of justice? (Ground 5)
5. Whether the award of N500,000.00 as damages for trespass ordered by the Hon. Learned trial judge was not outrageous, capricious and against legal principle especially as Claimant and Claimant’s witnesses gave no iota of evidence in support of their claim for general and special damages for trespass.
The Respondent did not formulate his own issues but proffered arguments in respect of issues which were not clearly identifiable. At the hearing of the appeal on 12/6/13, learned Counsel for the Appellant, Mr. Oyewo in adopting their amended brief of argument submitted that the Respondent did not amend his brief of argument sequel to the amendment of their notice of appeal and brief of argument. He urged the court to discountenance the Respondent’s brief as it cannot precede the amended notice of appeal and the Appellant’s amended brief. He further urged the court to consider the appeal only on the amended Appellant’s brief. Learned Counsel apparently forgot as rightly pointed out by learned counsel for the Respondent that an amended process takes effect not from the date of amendment but from the date of the original document and substitutes the original process. See A.S.W.A. v Ekwenem (2009) 13 NWLR (Pt. 1158) 410 @ 435; Oguma v IBWA(1988) NWLR (Pt.73) 658 and Ezinwa v Agu (2004) 3 NWLR (Pt. 861) 431. The Respondent’s brief in response to the Appellant’s original brief is competent as an answer to the amended brief of the Appellant.
I shall set down the arguments of both counsel on the issues identified and then resolve all the issues together
APPELLANTS’ ARGUMENTS:
Learned Counsel for the Appellant Chief Kunle Oyewo in his brief on issue 1 submitted that in paragraphs 11 and 12 of the Amended Statement of Claim, Wasilatu Olapeji, the original claimant had pleaded how she came to own the land in Exhibit A. She had averred that:
(a) Upon the death of AKINLABI, his land was partitioned among his 8 surviving children and each child had control over his own portion- this is the 1st act of partition as pleaded in paragraph 11 of the Amended Statement of Claim (at page 5 of the record).
(b) Equally too, on the death of each of the children the portion of the particular deceased child was equally partitioned among his children – this is the 2nd act of partition as pleaded in paragraph 12 of the Amended Statement of Claim (at page 5 of the record).
Counsel submitted that at the trial the Claimant and all her witnesses gave evidence at variance with the pleaded fact in paragraphs 11 and 12 of the Amended Statement of Claim. They had testified that Akinlabi’s land was partitioned by him during his lifetime contrary to the averment above. Learned counsel submitted that in civil cases parties and the trial court are bound by the pleadings and any evidence given which is contrary to the pleadings goes to no issue and should be expunged from the record, because the trial court has no right to consider a case not pleaded by the parties. He relied on several authorities.
Counsel submitted that the Claimant bore the burden of proof that she is owner of the land shown on Exhibit A, a plan made for her by her surveyor. She also has the burden to prove that Exhibit A falls within an ascertainable large tract of land founded 200 years ago by AKINLABI. Counsel submitted that a detailed reading of the Amended Statement of Claim (pages 3 of the record) would reveal that nowhere is the identity of the large tract of land at MAGBON founded by AKINLABI made certain or ascertainable by the tendering of a survey plan of Akinlabi family land or adequate description as to its natural features or boundary men. Counsel argued that she had offered evidence totally at variance with the 1st partition which is that upon the death of AKINLABI, AKINLABI land was partitioned by his eight (8) surviving issues so the 2nd partition which is dependent on the 1st partition cannot be proved. Counsel further submitted that CW4 RAFIU OGUNYEMI DADA who belongs to DADA branch of AKINLABI FAMILY testified that he called a meeting of the AKINLABI FAMILY in 1994 the recorded minutes of which is Exh E. Counsel submitted that the fact remains that Exh. E was made and signed by persons other than those listed in paragraph 7 of the Amended Statement of Claim (at page 4 of the record) as the 5 issues of AKAPO who are the persons that can constitute themselves to perform the 2nd partition pleaded in paragraph 12 of the Amended Statement of Claim. Counsel submitted that on that basis alone that Exh. E has no probative value having been convened and made by the AKINLABI FAMILY and not the AKAPO BRANCH OF AKINLABI FAMILY as pleaded in paragraph 12 of the Amended Statement of Claim. Counsel submitted that Exh. E offends the provision of Section 91 (3) of the Evidence Act 1990.
Counsel submitted that in this case Exh. E was made by descendants of AKINLABI FAMILY in favour of one of them the claimant, when claimant anticipated suing the 2 Defendants. He contended therefore that Exh. E was wrongly admitted by the trial court and urged the court to expunge Exh E as inadmissible evidence.
On this issue, counsel finally submitted that even the plan of Claimant Exh. A shows that on its NORTH, WEST and SOUTH the adjourning lands are that of AKINLABI FAMILY a family which ought to have phased out if in fact there was the 1st partition upon the death of AKINLABI some 200 years age. Counsel therefore invoked the provisions of section 46 the Evidence Act to say that the land in Exh. A is AKINLABI FAMILY land and remains as such up to the time of making Exh. A in 1995.
On issue 2, learned counsel submitted that the first claim is against the 1st Defendant only and it is for:
“Declaration that 1st Defendant has forfeited his right to be on the land of the Plaintiff lying and being at 401 Oshodi Express Road Pleasure Bus Stop, Oke – Odo Agege, Lagos State which he held of Plaintiff as tenant thereof”.
Counsel submitted that it is trite law that Court does not make declaration of right either on admission or in default of pleadings…………………..but only if the court was satisfied by evidence. He referred to the cases of VINCENT BELLO VS. MAGNUS EWEKA (1981) 1 SC (Reprints) 63 at 73; WOLLERTEINER VS. MOIR (1974) 1 WLR 991. (1974) 3 ALL ER 217; MOTUNWASE VS. SORUNGBE (1988) 5 NWLR (Pt 92) 90. Counsel submitted that the onus lies on the claimant to prove ownership of the land at 401 Oshodi Express Road Pleasure Bus Stop, Oke – Odo Agege, Lagos State by evidence. Counsel submitted that the learned trial judge misdirected herself in her finding at page 167 of the record in her judgment that:
“1st Defendant accepted as true that Claimant is the owner of the land in dispute……………………………..for the averments in paragraphs 8 and 9 of the Amended Statement of Claim to be controverted adequately the 1st Defendant must specifically controvert them in the 3rd Amended Statement of Defence and must give evidence in proof of same”.
Counsel submitted that to controvert the averments in paragraphs 8 and 9 of the Amended Statement of Claim one must read the entire 3rd Amended Statement of Defence dated 15th April 2002 (at pages 7 to 11 of the record) as a whole to understand the defence raised by the 1st Defendant and not some averments in isolation. He referred to TITILOYE V OLUPO (1991) 7 NWLR (Pt 205 519 at 532 and PAN AFRICAN CO. LTD V NATIONAL INSURANCE CO. NIG. (1982) 9 SC (Reprint) 1 at 45 – 46.
Counsel referred to paragraphs 5 – 10 of the 3rd Amended Statement of Defence and the composite plan made by DW2 the Defendants surveyor and submitted that the 2nd Defendants plan Exhs. L and M fall within AKINLABI FAMILY land shown on Exh C which is the same as Exh. F. Counsel submitted that DW2 was not cross-examined and that the claimant must be deemed to have accepted his (DW2)’s testimony as correct.
On the failure of the 1st Defendant to testify, Counsel submitted that no law makes it mandatory for a litigant to adduce evidence as a witness in support of his case, provided the litigant can adduce cogent and accurate evidence from claimants witnesses under cross-examination as in the case of PW2, PW3 and PW4 in this paragraph or expert witness (es) as DW2 Surveyor Latif Aremu Yakubu who gave an unshaken and uncontradicted evidence to show that the 2 Defendants survey plans Exh. L and M fell within AKINLABI FAMILY LAND being let out to customary tenants in the plan attached to power of Attorney dated 1/12/1981 and registered as No. 62/62/1826 Lagos i.e. Exh. C same as Exh. F. Counsel relied on CROSS RIVERS STATE NEWSPAPER CORPORATION VS. ONI AND ORS. (1995) 1 NWLR (PT 371) 270 AT 277 RATIO 10; DOGO V ADAMU (1998) 3 NWLR (PT 540) 159 AT 162 RATIO 7; AKINOLA V OLUWO (1962) ALL NBLR 2ND EDITION VOL. 1 225 AT 225; EGONU V EGONU (1978) 11/12 SC (REPRINT) 82 AT 99.
Counsel submitted that all the evidence show that the 2 defendants are not on Exh. A, claimant’s land purportedly claimed by partition which remains unproven, but on Akinlabi’s land as shown on Exh. C by the evidence of defendant’s surveyor which remained uncontradicted and unshaken.
On issue 3, Counsel submitted that the 2nd claim of the Amended writ of summons dated 30th April 1999 as incorporated in paragraph 24 of the Amended statement of Claim also dated 30th April 1999 is for “Possession of the said land” which refers to land described in the 1st claim of the said Amended Writ of Summons which is alleged to belong to the Plaintiff. Counsel submitted that at page 172 of the record, the learned trial judge granted “immediate possession” of the land in dispute herein in favour of the claimant which order differ materially from the claim for possession simpliciter made by the claimant. Counsel submitted that the order of immediate possession granted by the learned trial judge is calculated to deprive the defendants/Appellants of the 14 days respite period before any lawful execution can be made under Order 4 Rule 1(1) of judgment (Enforcement) rules under the sheriff and Civil Process Act Cap 407 Laws of federal Republic of Nigeria 1990.Counsel referred to ETIM EKPEYONG AND 3 ORS V INYANG EFFIONG NYONG AND 6 ORS (1975) 2 SC (REPRINT) 65 AT 74 where the Supreme Court stated:
“A Court of Law can award less, and not more than what the parties have claimed. A fortiori, the court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a court of law is not a charitable institution, its duty, in civil cases, is to render unto every one according to his proven claim.”
Counsel submitted that immediate possession was never claimed and it amounts to a breach of the rules of fair hearing under section 33 of the 1979 Constitution for the Honourable Court not to call the parties especially the Defendants to make their inputs or ideas before the making of an order which infringes their legal rights. Council cited OLUMESAN V OGUNDEPO (1996) 2 NWLR (PT 433) AT 644 – 645; GUKAS V JOS INT. BEWERIES LTD (1991) 6 NWLR (PT 199) 614 AT PAGE 623; ALHAJI MOHAMMED AND ANR V LASISI OLAWUNMI (1990) 2 NWLR (PT 133) 458 AT 485.
Counsel contended that in this case none of the 2 contesting parties was offered any hearing before the higher relief of “immediate possession” was made instead of “possession” simpliciter so the question of the hearing being fair is totally ruled out. OTAPO V SUNMONU (1987) 2 NWLR (PT 58) 587.
On issue no. 4, Counsel submitted that in the Amended writ of Summons dated 30/4/99 incorporated in the Amended Statement of Claim of same date Claim No. 2 is for Possession of the land and Claim No. 3 is for N500, 000.00 being damages for trespass against the 2 Defendants, their servants agents or privies or howsoever described, restraining them from committing any act of trespass on the said Plaintiff’s land. Counsel argued that the 2 claims are self – contradictory in that the Supreme Court in the case of AROMIRE V AWOYEMI 1972 2 SC (Reprint) 1 at 7 lines 10 to 30 Hon. Justice G. B. A. Coker JSC (of blessed memory) stated:
“We have already set out the claims of the plaintiff as on his Writ-damages for trespass, recovery of possession and a perpetual injunction. It is pertinent at this junction to observe that the claims as appearing on the summons are self – contradictory.”
As for damages for trespass Counsel submitted that Hon. Justice Agbaje JSC (as he then was) stated in OSUJI V ISIOCHA (1989) 6 SC (Pt 11) 158 (1989) 3 NWLR (Pt 111) 624 at 646.
“The law is that damages are deemed to be in issue whether special or general and whether the alleged damage is part of the cause of action or not unless specifically admitted”.
Counsel further submitted that none of the witnesses of the Claimant gave any evidence of damages and the quantum of such damages against each of the 2 Defendants jointly or severally for trespass. In the circumstance the claim for damages for trespass and the quantum thereof even though pleaded should be regarded as abandoned. See WOLUCHEM V GUDI (1981) 5 SC (Reprint) 178; FEDERAL CAPITAL DEVELOPMENT AUTHORITY V NAIBI (1990) 3 NWLR (Pt 138) 270 @ 281.
In conclusion Counsel submitted that the 2 claims as to possession and trespass are self contradictory and that none of the 2 claims has been proved by claimant in this case.
On issue 5, counsel submitted that in paragraph 23 of the Amended Statement of Claim (at page 6 of the record) which supersedes the Amended Writ of Summons Claimants claim is itemized as (a) N36, 200.00 for SPECIAL DAMAGES and (b) N463, 800.00 for GENERAL DAMAGES. Counsel submitted that it is settled law that averments in pleadings are not evidence of matters averred therein unless admitted by the adverse party. Counsel argued that although facts as to damages were averred in paragraph 23 of the Amended Statement of Claim the Claimant and all his other witnesses failed to give any iota of evidence relating to damages for trespass in their respective testimonies. He submitted that the averments as to damages should be regarded as totally abandoned and the judgment of the learned trial Judge perverse in giving judgment where no evidence was adduced and the averments seriously contested. Counsel referred to the observation of the Supreme Court in IWUEKE V IMO BROADCASTING CORPORATION (2005) 10 SC 20 @ 40 – 41 that in an action, a claim for damage is always deemed to be in issue.
Learned Counsel submitted that paragraph 23 of the Amended statement of Claim (page 6 of the record) is for GENERAL DAMAGES and SPECIAL DAMAGES and that there is a world of difference between proof of special damage and proof of general damage and the Court of law must not mix up the adjectival or procedural requirements of the 2 claims. XTOUDOS SERVICES NIG LTD V TAISEI (W.A.) LTD (2006) 6 SC 200 @ 208
Counsel argued that in the instant case, the learned trial judge lumped the claim for special and general damages together as a global sum of N500, 000.00 without specifying what goes for special damage and what goes for general damage. Relying on EKPEYONG & ORS V. NYONG & ORS (1975) 2 SC 71 @ 80, Counsel submitted that the award has no legal basis whatsoever and urged the court to reverse the award. In consideration of all of the above arguments, Counsel urged the court to allow the appeal and set aside the judgment of the lower court.
RESPONDENT’S ARGUMENTS:
Learned Counsel for the Respondent on issue 1 submitted that the Respondent proved his case and was entitled to judgment. Counsel submitted that the original Respondent who died and was later substituted with present Respondent testified at pages 38 – 41 of the record that the land in dispute was originally part of a vast tract of land settled upon by her ancestor Akinlabi who died and the land was partitioned amongst his eight children. Learned counsel submitted that Akapo, the original Respondent’s Grandfather was one of the eight children of Akinlabi and that Akapo’s portion was further partitioned among his three wives, when Akapo died, thus the land in dispute was partitioned to Eyile original Respondents mother a direct child of Akapo. Eyile’s portion devolved to the original Respondent on Eyile’s death. Counsel submitted that the present Respondent testified at page 29 of the records that the land in dispute was rented to the first appellant in 1978 and he was issued a receipt Exhibit “B” but since then he has not paid any rent. Counsel further submitted that this material piece of evidence enabled the Respondent to succeed in his claim for forfeiture against the 1st appellant as per their writ of summons at page 2 of the records. Counsel submitted that the circumstances under which a landlord can bring a claim for forfeiture against a tenant are well stated in Iyanda v Laniba (2003) FWLR (Pt 138) 1275 and that refusal to pay rent is one of the circumstance. Iyanda v Laniba (supra); Onyia v Oniah (1989) 20 N.S.C.C. (Pt.1) 32. Counsel contended that the learned trial judge citing Gbere v Alli-Owe (2000) 11 NWLR (Pt. 678)296 also correctly applied the principle of law as to forfeiture in her judgment at page 170 of the records that the first Defendant having set up a rival title to the title of the Respondent to the land in dispute, in his averments in the statement of Defence at page 7 – 11 of the records, the relief of forfeiture therefore succeeded.
Learned counsel argued that the learned trial judge was right at page 171 of the record in awarding the second relief of possession against the Appellants after having held that the Respondent had established herself as the owner of the land in dispute by partition from the Akinlabi family land; the learned trial judge correctly applied the principle as stated in Shittu v Egbeyemi (1986) 6 NWLR (Pt 457) 652 that a party who succeeds in establishing ownership of land will succeed in his claim for possession.
On the third relief of the claimant for damages for trespass as per the writ of summons at page 2 of the record, counsel submitted that trespass is a civil wrong against possession and that P.W.2 testified at pages 29 and 30 of the records that the second appellant jumped onto the land in dispute in 1985 without Respondent’s consent. Counsel contended that the learned trial judge rightfully applied the principle in Shittu v Egbeyemi (supra) that the second appellant though in possession as at the time this suit was filed, could not give himself possession against the Respondent he ousted. Counsel submitted that the learned trial judge was right at page 171 of the records in holding that the second appellant is a trespasser on Respondents land, having occupied Respondent land without his consent, therefore the claim for trespass succeeded.
On the last relief of the Respondent for perpetual injunction, Learned counsel submitted that the learned trial judge was right at page 172 of the records in awarding the relief of perpetual injunction against the appellants by correctly applying the principle of law in Globe Fishing Industries v Coker (1990) 7 NWLR (Pt 162) 271, that the Respondent having proved his right to the land in dispute is entitled to the grant of perpetual injunction to protect his right. Counsel submitted that the parties were in agreement as to the location of the land in dispute. The second appellant testifying under cross examination at page 100 of the records agreed that the land in dispute is at 401/403 Lagos/ Abeokuta expressway which is in tune with the description of the land in dispute in relief (a) of the writ of summons at page 2 of the records. P.W.4 also described the land in dispute as situate on Abeokuta Express Road, pleasure bus/stop at page 55 of the record. P.W.1 and P.W.2 at pages 28 and 29 of the records also described the land in dispute as being at Lagos/ Abeokuta Expressway, Pleasure Oke-Odo. Counsel submitted that the parties having agreed on the location of the land in dispute no further proof was necessary. He relied on Awoyoolu v Aro (2006) 4m. J.S.C. P.128 at 132; Arabe v Asanle (1980) 5 – 7 SC 78; Elias v Omobaro (1982) 5 S.C.25; Awote v Owodunmi 1987 2 NWLR (Pt 57) 210; Akpagbue v Ogu (1976) 6 S.C. 63.
On issue No 2, counsel submitted that the appellants virtually had no Defence to Respondents claims. Counsel argued that the first appellant did not give evidence to rebut Respondent’s claims; that the Respondent tendered Exhibit “B” through P.W.2 to show that the land in dispute was originally let out to first appellant in 1978, but he refused to pay any rent since then. Counsel submitted that the learned trial judge rightly applied the principle in Ogolo v Ogolo (1997) NWLR (Pt 512) 310 that where a party’s case before the court is such that he ought to give evidence and he fails to do so, such failure will go against his credit. Counsel submitted that the learned trial judge rightly concluded at page 168 of the records that the 1st appellant did not controvert the evidence of Respondent and had therefore admitted the facts as true and correct. Counsel further submitted that the learned trial judge also rightly concluded following Hansentiwa v Ikueduyi (1991) 3 NWLR (Pt 17) 280 that even though it was not in all cases that a party needs to testify in his own case, this was a case in which the 1st appellant needed to testify in line with his own statement of Defence as the transaction referred to in paragraphs 8 and 9 of the statement of Defence are within the personal knowledge of the first appellant only.
The second appellant in his defence claimed to have purchased the land in dispute from one Tunde Akapo who derived his power to sell from Exhibit “G”. Counsel submitted that by Exhibit “F” three people including Tunde Akapo were appointed as attorneys to sell Akinlabi family land; that Exhibit “G” tendered by second appellant showed that only Tunde Akapo signed the receipt contrary to the contents of exhibit “F” that the three named attorneys must exercise power of sale. Counsel submitted that the learned trial judge rightly concluded at page 170 of the records that Exhibit “G” is therefore void. Learned counsel referred to Exhibit “E” the minutes of Akinlabi family meeting presided over by P.W.4 where it was concluded that the land in dispute belonged to original Respondent and contended that the meeting was attended by Tunde Akapo and D.W.3 and that Exhibit “E” was admitted in evidence without objection by appellants’ counsel. Learned counsel contended that the maker of Exhibit “E” P.W.4 was duly cross-examined as to the contents of Exhibit “E”; the learned trial judge therefore rightly relied on Okonkwo v State (1998) 8 NWLR (Pt 561) 210 that since the maker of Exhibit “E” was cross-examined, Exhibit “E” has probative value and will not therefore be expunged from the records. Counsel further submitted that the appellants did not lead any contrary evidence that P.W.4 was not the head of Akinlabi family, nor was any contrary evidence led that the meetings referred to in Exhibit “E” were not held, more so as Tunde Akapo second appellant vendor was present at those meetings. Counsel submitted that the learned trial judge rightly concluded at page 169 of the records that Exhibit “E” substantiates Respondent’s claims that she owned the land in dispute by partition. Counsel submitted that DW3 who was present at the meeting in Exhibit “E” did not conclude her evidence and was not cross-examined. The witness could not therefore substantiate appellants defence. Counsel further submitted that the learned trial judge rightly concluded at page 169 of the records that the appellants did not lead any evidence to challenge evidence of P.W.4 that the land covered by Exhibit “C” same as Exhibit “F” is Akinlabi family land given to customary tenants and does not cover land in dispute which is already partitioned to the original Respondent. Counsel contended that the learned trial judge rightly concluded at page 170 of the records that P.W.4’s evidence established that the partition of Akinlabi family land was oral and that this is allowed. Olorunfemi v Asho (2000) 2 NWLR (Pt 543) 147. Counsel argued that the learned trial judge also rightly concluded at page 170 of the records that Exhibit “E” establishes that the partition of the land in dispute was with general consent of family members. Counsel submitted that the appellants did not lead any other contrary evidence from a member of Akinlabi family, that the family land was not partitioned. Counsel urged the Court to dismiss the appeal as lacking in merit.
RESOLUTION
Although this case is for a declaration that the 1st Appellant had forfeited his right to be on the land which he held of the Respondent as a tenant, possession of the land, damages for trespass and injunction, title is in issue as the Appellants are also claiming title by virtue of purchase. Further, it is trite law that where a claim for trespass is coupled with a claim for injunction, the title of the parties to the land in dispute is automatically put in issue. The Claimant is consequently under a duty to prove his title to the disputed land. Fayemi v Awe [2009] 15 NWLR (Pt. 1164) 315

It is the law that the onus is on a plaintiff who claims declaration of title to land to satisfy the court that he is entitled on the evidence adduced by him to the declaration claimed; except in a few cases such as where the defendant claims exclusive ownership of family land, the onus never shifts. To discharge the onus the plaintiff must rely on the strength of his own case and not on the weakness of the defence except where the defendant’s case supports his case. Onwugbufor v. Okoye (1996) 1 NWLR (424) 252; Eze v. Atasie (2000) 9 WRN 73 @ 88; Adesanya v. Aderonmu (2000) 9 NWLR (Pt. 672) 370. The plaintiff must prove his title by clear, emphatic, satisfactory and cogent evidence. If the onus is not discharged the weakness of the defendant’s case will not help the plaintiff and the proper judgment is for the defendant. Kodilinye v. Odu (1935) 2 WACA 336; Atuanya v. Onyejekwe (1975) 3 SC 161 @ 168; Onibude v. Akibu (1982) 7 SC 60 @ 84-85; Bello v. Eweka (1981) 1 SC 101; Lawson v. Ajibulu [1997] 6 NWLR (Pt. 507) 14 @ 41 F-H. The methods by which a claimant may establish title to land were settled by the Supreme Court in Idundun V. Okumagbe (1976) 9-10 SC 227. They are:-
(a) By traditional evidence
(b) By production of documents of title duly authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected and adjacent land would in addition be the owner of the land in dispute.
The claimant is not required to prove all the five methods. He would succeed in his claim if he is able to establish any one of the five methods.
The original Claimant, Madam Wasilatu Olapeji claimed title by traditional evidence, partition and inheritance. The Appellants faulted her claim for the reasons already set out in the Appellant’s arguments above. The learned trial Judge in his judgment on the issue of partition at page 169-170 of the record held:
“Where parties to a land in dispute are agreed that the land was at one time vested in their family, the onus of proving that the land was partitioned so as to vest in either of them an inalienable portion lies on the party who relied on the alleged partition. See the case of Ezekwe vs Onyeama (1993) 8 NWLR (Pt 309) 77. It is my considered view that the Claimant has established by the totality of the evidence given by the Claimant’s witnesses that the land in dispute is his through partition and no longer forms part of Akinlabi family land. Exhibit E and CW4’s testimony in proof of it establish that the partition was by oral partition and that it was done under customary law and as such it is valid. Although partition could be by a deed or in customary law, it could be by oral partition which is also valid. See the case of Olorunfemi vs Asho (2000) 2 NWLR (Pt. 543) 147 Supreme Court Decision. I therefore do not agree with Chief Oyewo in his submission when he held that there was no partition of the family land. Exhibit E also establishes that the partition of the land in dispute was with the general consent of the Akinlabi family members.”

The reasoning of the learned trial Judge is in my view unimpeachable. The only witness amongst the three witnesses called by the Appellant whose evidence could have had an impact on whether or not there was partition of the family land was DW3 but she failed to conclude her evidence and was not cross-examined. Learned counsel for the Appellants also attempted to hinge their contention that there was no partition by calling a surveyor DW2 who tendered survey plans and claimed that his finding was that the land in dispute sold to the Appellants was within the perimeter survey plan of Akinlabi family land as shown on Exhibit C. With all due respect to learned counsel, it is not possible to come to the conclusion that there was no partitioning of the family land based on the finding of DW2. After all the actual land partitioned and given to members of the family and the Claimant in the instant case are all within the Akinlabi family land. It is only members of the Akinlabi family that can testify as to which parcels of their land out of the entire family holding has been partitioned and given out to members of the family, especially in the absence of survey plan of the entire family land and not just that given out to customary tenants as in Exhibit C. It is not inconceivable that within the land given out to customary tenants, a part could be in the possession of a member of the family as his or her share of the partitioned land.
Further the contention of the Appellants that they got their land from lawful attorneys of the Akinlabi family is not borne out by the evidence in the records. The family appointed three attorneys authorised to act jointly. Exhibit G, the receipt issued to the Appellants was signed by only one of the attorneys who did not even attend court to support the case of the Appellants. One of the remaining two attorneys who happened to be the head of the family testifying as CW4 said that the attorney Tunde Akapo who sold to the Appellants had no authority to sell because the land belonged to Madam Wasilatu and that he could not even sell family land alone. When the evidence adduced by the Respondent especially that of CW4, the head of the Akinlabi family that there was partition of the family land is placed on a scale with that adduced by the Appellants, it becomes obvious that the scale on the side of the Respondent far outweighs that of the Appellant as there is nothing on their side of the scale. Learned counsel for the Appellants in his brief made really heavy weather of the fact that in paragraph 11 of the amended statement of claim, the averment was that “upon the death of Akinlabi, his land was partitioned amongst his children”, while the original Claimant Madam Wasilatu and the other witnesses for the Respondent in their evidence said the partitioning was by Akinlabi during his lifetime. It is true that ordinarily in civil cases parties and the trial court are bound by the pleadings and that any evidence given which is contrary to the pleadings goes to no issue. The mix-up in the evidence here is not whether or not the land was partitioned but whether the partitioning was after the death of Akinlabi or during his lifetime. It must be borne in mind that this is evidence of ancestral history handed down from generation to generation. It is not unusual that in the process of retelling the history memories may dim, giving rise to inconsistencies in the telling of the story. If there was no other independent evidence to support the issue of partitioning, there could be a problem. In the instant case, there was consensus within the family itself that the land was partitioned. It is the Appellants, outsiders who are claiming to the contrary without any concrete evidence. CW4, the current head of the Akinlabi family testified that there was indeed partition of the Akinlabi family land and that the land in dispute belonged to Madam Wasilatu. He further tendered Exhibit E, the minutes of a meeting of the Akinlabi family attended by members of Akinlabi family including Tunde Akapo who sold the land to the Appellants where it was confirmed that the land is not part of the Akinlabi family land but belonged to Madam Wasilatu. The Appellants contended that Exhibit E has no probative value, the meeting having been convened by the Akinlabi Family instead of the Akapo branch of the Akinlabi Family. This in my view is a lame argument. The Appellants had contended that the land sold to them is the family land of Akinlabi. The same Akinlabi family met and said the land was not theirs but that of Madam Wasilatu. The evidence clearly sweeps the carpet off the feet of the Appellants; more so when the appellants were unable to call any witness from the Akapo branch of the Akinlabi family to support their contention that the land did not belong to Madam Wasilatu. Afterall Akapo is an entity within Akinlabi family. Members of the Akapo family were present at the meeting. No claim to the land in dispute was made by them. It is quite strange that the Appellants were unable to adduce evidence through their vendor in support of their contention that the land belonged to Akinlabi family. They are clearly hitting against a brick wall faced with evidence of the head of Akinlabi family that the land in dispute did not belong to the family. The contention of Appellants’ counsel that Exhibit E was made by interested parties to aid Claimant in the suit is not supported by the evidence adduced in the case. In the case cited by learned counsel for the Appellants, J. DUROJAIYE ADETORO & ORS. VS. OLUWAKITAN TRADING CO. LTD. & ANOR (2002) 9 NLWR (PT 771) 157 AT 167 RATIO 13 the Court of Appeal Ibadan Division per M. O. ONALAJA JCA stated:
“By virtue of the provision of section 91(3) of the Evidence Act nothing in the section shall – render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish. In other word a statement made by a person interested at a time when a dispute was anticipated or likely is inadmissible, as a person interested is not confine to the matter of the document. It includes any person whatsoever provided he is interested. There must be a real likelihood of bias before a person making a statement can be said to be a person interested”.
CW4 testified that he did not know that Madam Wasilatu would go to court as they had hoped the parties would comply with their decision. Section 91(3) of the Evidence Act is consequently inapplicable as there was no evidence to establish that proceedings were anticipated at the time the statement was made.It is preposterous that the Appellants are calling on this court to invoke the provision of Section 46 of the Evidence Act to say that the land in Exhibit A, (Respondent’s survey plan) is Akinlabi family land because the plan shows that the land in dispute is bounded in the North, West and South by Akinlabi family land when CW4, head of the Akinlabi family had stated categorically in his evidence that the land is not theirs but belongs to Madam Wasilatu. He backed this up by tendering Exhibit E, the minutes of the meeting of the Family confirming that the land is not theirs. It is strange and unusual that the Appellants will foist ownership of land on persons who maintain that they do not own the land. It is also inconceivable that the head of Akinlabi family, CW4 whose headship is not disputed by the Appellants would give evidence against the interest of the family or support such a cause if indeed the land belonged to the family. CW4 testified that he, Tunde Akapo and one other are Attorneys with respect to Akinlabi Family land as shown in Exhibits C & D and that Tunde Akapo had no power to sell the land in dispute to the Appellants as the land is not part of Akinlabi Family land but belongs to Madam Wasilatu. Further the receipt issued by Tunde Akapo to the Appellants Exhibit G was signed by him alone when there are three Attorneys who must sign together when acting on behalf of the family. Exhibit G was therefore void for that additional reason. It conferred no title whatever on the Appellants.
I agree with the view of the learned trial Judge that the Respondent had established by the totality of the evidence given by his witnesses that the land in dispute is his through partition and no longer forms part of Akinlabi family land. Having established ownership of the land, the next question is whether the 1st Appellant was ever a tenant to the Respondent. The Respondent had averred in paragraphs 8 & 9 as follows:
8. The 1st Defendant approached the Plaintiff for the rent of part of her land, which portion is under the power line, for use as a mechanic workshop and after much persuasion the Plaintiff acceded to 1st Defendant’s request and the 1st Defendant paid the sum of N600.00k as rent for one year on 22/11/78 and a receipt no. 25 was issued to him.
9. At the expiration of the tenancy, the 1st Defendant refused to pay any further rent when duly demanded from him, and he subsequently claimed to have bought the land from Tunde and Remi Akapo, the Plaintiff’s nephew and niece respectively who both sold to him in 1985.
Surprisingly, the 1st Defendant did not call any evidence in rebuttal of the above averments nor adduce any contrary evidence as to how he came to be on the land in dispute. In their brief of argument, learned counsel for the Appellants contended that no law makes it mandatory for a litigant to adduce evidence as a witness in support of his case provided he can adduce cogent and accurate evidence from any other source to support his case. Contrary to the contention of the Appellants, I searched the records thoroughly especially the cross-examination of the Claimant’s witnesses and the evidence of the Defendants’ witnesses, no evidence was extracted from the cross-examination or adduced by the defence witnesses in rebuttal of the above averments in paragraphs 8 and 9 of the amended statement of claim. On the point, the learned trial Judge in his judgment at page 168 of the record observed:
“It is my view that the 1st Defendant needed to call evidence in proof of the facts in the Statement of Defence he filed which have been established to be within his personal knowledge. It is the law that a Claimant need not testify in his own case if he can otherwise prove his case. See the case of Hansentiwa vs Ikueduyi (1991) 3 NWLR (Pt. 179) 280. It is my considered view that DW1’s (i.e. 2nd Defendant’s) testimony is not sufficient to establish the defence of the 1st Defendant against the claim of the Claimant in paragraphs 8 and 9 of the amended statement of claim………….I agree with Mr. Akinsanya in his submission that the 1st Defendant did not call evidence to rebut the claim of the Claimant in paragraphs 8 and 9 of the amended Statement of Claim. It means the 1st Defendant has admitted the Claimant’s claim therein. It means in effect that the 1st Defendant has admitted as true the claim of the Claimant in the amended statement of Claim and that was why he did not controvert Exhibit B tendered by the Claimant at the trial with another document. This court has therefore taken as the truth the uncontroverted facts in paragraphs 8 and 9 of the amended statement of claim and CW3 testimony in proof as unchallenged. The Court also takes it as the truth that the 1st Defendant refused to pay to the Claimant further rent due after paying the one receipted in Exhibit B.”
The learned trial Judge is in my view right in his evaluation of the evidence on the point. Failure of the 1st Defendant to adduce evidence in rebuttal of the claim that the land in dispute was rented to him in 1978 by the Claimant and that he was issued a receipt Exhibit B but refused to pay further rent constitute admission of the averments. In view of this, the denial of the Claimant’s title to the disputed land and the Defendants’ claim to title, justify the grant by the learned trial Judge of relief (a) declaration that the 1st Defendant had forfeited his right to be on the land of the Plaintiff. The learned trial Judge at page 170 of the record said:
“With regard to the issue of forfeiture, it is pleaded in paragraphs 18, 21 and 22 of the Amended Statement of Claim and CW3 testified at the trial in proof of this. CW3’s evidence therefore is unchallenged as the 1st Defendant did not call evidence to contradict this. The court takes it as the truth. It is the law that by an act of forfeiture a Lessor or a landlord of a premises may become entitled to retake the premises and so prematurely put an end to the lease either by the terms of the lease or by operation of law. See the case of Gbere vs Alli-Owe (2000) 11 NWLR (part 768) 296.It is also the law that once a tenant or a lessee denies his landlord’s title the landlord or a Lessor will be entitled to the relief of forfeiture against the tenant or lessee. See the case of Gbere vs Alli-Owe (Supra)……. By the averments in the 3rd amended statement of Defence, the Defendants are claiming to be the owners of the land in dispute. DW1 testified in proof of these averments. Exhibit G which has been established to be void was also tendered to substantiate this claim. It is therefore my view that the Defendants have denied the title of the Claimant to the land in dispute which has been established to be owned by the Claimant. It is my view that the Claimant is entitled to the relief of forfeiture against the Defendants.”
The learned trial Judge is right in his evaluation of the evidence led on forfeiture. The law is clear that where a customary tenant challenges the title of his landlord he will render himself liable to forfeiture of his tenancy. Buraimoh & Ors v. Gbamgboye & Ors 15 NLR 139; Salami & Ors v Oke (1987) NWLR (Pt. 63) 1; Iyanda v Laniba II (Supra); Akinlagun & Ors v Oshoboja & Anor (2006) 12 NWLR (Pt. 993) 60. In the case of Oniah & Ors v Onyia (1989) 1 NWLR (Pt. 99) 514; the Supreme Court held that the real basis of the misconduct or misbehaviour which renders the tenancy of a customary tenant liable to forfeiture is the challenge to the title of the overlord. This may be by alienation of part of the land under claim of ownership, refusal to pay the tribute due or indeed direct denial of the overlord’s title by setting up a rival title in the customary tenant himself. Further the law is that the grant of the remedy of forfeiture is not discretionary but follows upon the breach of the condition of customary tenancy. Onisiwo v Fagbenro (1954) 21 NLR 3; Dokubo v Bob-Manuel (1967) 1 All NLR 113; The Appellants were in breach of the tenancy by not only denying the title of the Respondent but also claiming title to the land. The lower court rightly granted the relief for forfeiture.
Learned counsel on his issue 3 had contended that the learned trial Judge erred in granting the Respondent ‘immediate possession’ instead of possession simpliciter prayed for. He contended that this would deprive them of the 14 days respite before any lawful execution can be made under Order 4 Rule 1(1) of the Judgment (Enforcement) Rules made under the Sheriff and Civil Process Act Cap 407 Laws of the Federal Republic of Nigeria 1990. Order 4 rule 1(1) of the Judgment Enforcement Procedure Rules provides that a writ of possession can issue after the date on which the court orders possession or fourteen days from the date of judgment. There is however a proviso that execution may not be levied until a motion for stay of execution, if any, be heard and determined. Further Order 4 rule 2 provides that no other process shall except by express leave of the Court be issued until after the expiration of three days from the day on which judgment is given. The learned trial Judge in his judgment at page 172 of the record ended the judgment thus:
“The judgment of this Court is and shall be as per the reliefs sought in paragraphs (a), (c) and (d) of the amended writ of summons. The Court in addition orders immediate possession of the land in dispute herein in favour of the Claimant.”
From the manner of setting out the reliefs granted, it is obvious that the learned trial Judge clearly intended to grant the claimant immediate possession of the land in dispute. Does this amount to granting the Claimant more than he prayed for? It is trite that a court should not award that which is not claimed by a party because the court is not a charitable organisation. Courts of law are legal institutions for the adjudication of matters and award of relief or reliefs duly sought by the parties in the litigation process. See Babatunde vs Texaco (Nig) Ltd (1978) 9-10 SC 71; Ayalogu v Agu (2002) 3 NWLR (Pt 753) 168; Ogunlade v F.M.B. (Nig) Ltd (2007) 2 NWLR (Pt. 1017) 16; ETIM EKPEYONG AND 3 ORS V INYANG EFFIONG NYONG AND 6 ORS (1975) 2 SC (REPRINT) 65 AT 74

When a claimant claims possession in a case, it is within the discretion of the trial Judge to grant possession within a specified period or with immediate effect. Such grant does not in my view amount to granting the Claimant more than he prayed for. All that was granted the Claimant was possession, no more. The time frame within which this is to take place is for the trial Judge to determine, not the Claimant. This view is in consonance with the provisions of Order 4 rule 1(1) and 2 of the Judgment Enforcement Procedure Rules.

Where the Judge specifies a date when possession is to be given up, a writ of possession can issue after that date. Where there is no specification of the date, possession can issue after 14 days.Â Â The order further provides that if there is pending an application for stay of execution, possession cannot issue until after the application has been heard and determined. Order 4 rule 2 provides that no other process shall except by express leave of the Court be issued until after the expiration of three days from the day on which judgment is given. So in spite of the fact that immediate possession was granted the Respondent, no process can issue without the express leave of the court until after the expiration of three days from the date of the judgment. This no doubt is to allow the filing of application for stay of execution if so desired. The fact that provisions are made to cover all these eventualities show that the trial Judge has discretion in the matter. It is not a case of awarding the Claimant more than he claimed.

On the contention that the claims for possession and damages for trespass are self contradictory, I would say that the appellant made a valid point there. In the case of Ekpan v Uyo (1986) 3 NWLR (Pt. 26) 63 @ 84 E Aniagolu JSC of blessed memory observed: “The person not in possession does not maintain the action for trespass. Hence it is held that claims for damages for trespass and for recovery of possession are self-contradictory and should not be joined together, as one postulates that the plaintiff was in possession at the relevant time, while the other suggests he was not. Alhaji J. Aromire & 2 Ors v J.J. Awoyemi (1972) 1 All NLR (Pt. 1) 101; Anthony Odunnukwe v The Administrator-General East Central State (1978) 1 SC 25 @ 32”
The evidence adduced by the Respondent and accepted by the trial court is that the Respondent put the 1st Appellant on the land as his tenant. He paid the first year’s rent and subsequently refused to pay further rent. An overlord who is not in possession of a piece of land occupied by his tenant cannot sue the tenant for trespass. There was no clear evidence as to how the 2nd Appellant came on the land. In his evidence the present Respondent, Wasilatu’s son testifying as PW2 said that the 2nd Appellant was a friend to their tenant the 1st Appellant. None the less the claim for damages for trespass was against both Appellants and not just the 2nd Appellant. Having put the 1st Appellant on the land as his tenant, the 1st Appellant did not commit any trespass on the land. The award of N500, 000.00 against the Appellants being damages for trespass committed on the Respondent’s land is wrongful and is bound to be set aside.
The complaint under issue 5 is that the award of the lump sum N500, 000.00 as special and general damages is excessive and that no evidence was led by the Respondent at the trial in respect of the special damages claimed. Having decided above that the award is bound to be set aside, I need to just point out that the Appellant is right that special damages must be specifically pleaded and strictly proved. The Respondent did specify in the amended statement of claim the items of special damage but no evidence was led in proof. See the following cases cited by learned counsel for the Appellants: MISHIZAWA LTD V STRICHARD JEHESONS (1984) 3 SC 234 @ 263; FABUNMI V AGBE (1985) 3 SC 28 @ 73 and OKAGUE V ROMAINE (1982) 12 SC (Pt 11) 1 @ 29 where it was observed:
“Pleadings not being human beings have no mouth to speak in Court. And so they speak through witnesses. If witnesses do not narrate them in Court, they remain moribund if not dead at all times and for all times to the procedural disadvantage of the owner”.
See also DUROSARO V AYORINDE (2005) 3 – 4 SC 14 @ 24 where the court said:
“Pleadings, by their nature and character cannot speak. They speak through witnesses and so long as a party refuses or fails to call witness to articulate their contents they remain dormant process in the courts file. As a matter of law, they remain moribund and no Court of law is competent to resuscitate or revive them”
No evidence was led of the special damages. This is additional reason why the learned trial Judge should not have awarded damages for trespass. In the final result, this appeal succeeds in part. The judgment of the Court with respect to relief (c) N500, 000.00 damages for trespass is set aside. Subject to that the appeal lacks merit and is hereby dismissed with respect to reliefs (a), (b) and (d). The judgment of Akanbi J. delivered on 29/6/06 granting reliefs (a) (b) and (d) of the amended writ of summons and making the grant of possession immediate are hereby upheld. I make no order as to costs.

CHIMA CENTUS NWEZE, J.C.A.: My noble Lord, Iyizoba JCA, obliged me with the draft of the leading judgment just delivered now. I agree with the reasoning and conclusion. This contribution is limited only to the lower court’s evaluation of the evidence on forfeiture, I, entirely, agree with the leading judgment that the lower court’s evaluation of the evidence led on forfeiture is unimpeachable. It has long been established by authorities of ancient ancestry that where a customary tenant challenges the title of his landlord, he will render himself liable to forfeiture of his tenancy, Onisiwo v. Fagbenro (1954) 21 NLR 3; Dokubo v. Bob-Manuel (1967) 1 All NLR 113, Buraimoh and Ors. V. Bamgboye and Ors 15 NLR 139; Salami and Ors v. Oke (1987) NWLR (Pt.63) 1; Iyanda v. Laniba (2003) FWLR (Pt.138) 1275; Akinlagun and Ors v. Oshoboja and Anor (2006) 12 NWLR (Pt.993) 60.
It is for this reason, and the more elaborate reasons in the leading judgment that I too shall enter an order allowing the appeal with respect to relief (c) I, hereby dismiss the appeal as unmeritorious with respect to reliefs (a); (b) and (d). I abide by the consequential orders in the leading judgment.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: My learned brother, Iyizoba, J.C.A., afforded me the opportunity of reading in draft the judgment just delivered with which I agree and adopt as my judgment in the case with nothing useful to add.

Appearances

S. O. Ayewo Esq., with A. O. Adeniyi Esq., S. O. Reis, O. Junaid – Eko For Appellant

AND

Olumide Akinsanya Esq. For Respondent