MALLAM HAKILU SABON-GIDA & ANOR v. HAJIYA MARYAM HABU DAN-NAMASHI & ORS (2016)

MALLAM HAKILU SABON-GIDA & ANOR v. HAJIYA MARYAM HABU DAN-NAMASHI & ORS

(2016)LCN/8544(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of April, 2016

CA/K/466/2014

RATIO

EVIDENCE: ADMISSION; WHAT CONSTITUTES AN ADMISSION
An admission is a statement, oral or written (expressed or implied) which is made by a party or his agent in a civil proceedings and which statement is adverse to his case. It is admissible against the maker as the truth of the fact asserted in the statement. In a civil case, admissions by a party is an evidence of the facts asserted against, but not in favour of such party. See Nwuke v. U.B.N. (2009) 10 NWLR (Pt. 1148) P. 1 @ 27 where a defendant admits a fact in dispute by his pleadings, that fact is taken as established and formed one of the agreed facts in the case. What is admitted or not disputed needs not be proved. See Agbredo v. U.B.N. Ltd (2007) 7 NWLR (Pt. 666) P. 534; Okafor v. Dumez (Nig) Plc (1998) 13 NWLR (Pt. 580) P. 88; Abu v. Ughi (1995) 8 NWLR (Pt. 413) P. 533 and Omorhihi v. Enaterwere (1988) 1 NWLR (Pt. 73) P.746.
On the evidential value of admission in civil proceedings, where a party admits the contents of the averments in the statement of claim, Georgewill J.C.A. in considering admitted fact, in the case of Eco International Bank Plc v. Nigerian Union of Local Government Employees, Jalingo Local Government Council & Anor (2015) 10 NWLR (Pt. 466) P. 49 @ 84, had this to say.
“The law is and has always been that what is admitted needs no further proof and this is so because in the adversarial system of administration of justice in operation in our civil jurisprudence, admission is perhaps one of the best forms of evidence in favour of the party whose fact or claim is admitted by the other party. See Sections 20 and 123 of the Evidence Act, 2011; See also FMH v. Commet Shipping Agencies (2009) All FWLR (Pt. 483) 1260, (2007) 12 NWLR (Pt. 1145) 193; Salawu v. Yusuf (2007) All FWLR (Pt. 384) 230 @ P. 236, (2007) 12 NWLR (Pt. 1049) 707. PER IBRAHIM SHATA BDLIYA, J.C.A.
EVIDENCE: ADMISSION IN PLEADINGS; PURPOSE OF ADMISSION MADE IN PLEADINGS
The main purpose of admission made in the pleadings is to obviate the necessity of proof of such admitted facts since they would be accepted as established. Kenlik Holdings Ltd v. R. E. Investment Ltd (1997) 11 NWLR (Pt. 529) 438; F.C.E v. Anyanwu (1997) 4 NWLR (Pt. 501) 533; Salu v. Egeibon (1994) 6 NWLR (Pt. 358) 23; Edokpolo and Co. Ltd v. Ohenhen (1994) 7 NWLR (Pt. 385) 511. Pleadings are meant primarily to let parties know each other’s case. Therefore, all matters not denied in the pleadings whether raised in the statement of claim or statement of defence are taken as admitted. Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745; Lewis & Peat (N.R.I.) Ltd v. Akhimien (1976) 7 SC 157.
Any fact(s) expressly admitted or deemed admitted in a party’s pleadings need not be proved by the other party. See Balogun v. EOCB (Nig) Ltd (2007) 5 NWLR (Pt. 1028) P. 584 @ 600 and Uredi v. Dada (1988) 1 NWLR (Pt. 69) P.237. PER IBRAHIM SHATA BDLIYA, J.C.A.
EVIDENCE: BURDEN OF PROOF; BURDEN OF PROOF IN CIVIL CASES
I am not unmindful of the requirement of the law that in civil cases the standard of proof is on the preponderance of evidence or on the balance of probability. Consequently, the plaintiff is expected to adduce evidence to satisfy the requirement enunciated supra. See UBA Plc v. Mustafa (2004) 1 NWLR (Pt. 855) P. M3 @ 468-469, wherein this Court per Nzeako, JCA held that:
“Again, civil suits are decided on the balance of probabilities, on the preponderance of evidence. This presupposes that trial Court has had a consideration of all the evidence before it. This presupposes that trial Court has had a consideration of all the evidence before it, led by both parties. This connotes that the totality of the evidence, that is to say, the evidence of both parties is bound to be taken into account, and appraised so as to determine which evidence has weight and which has none.” PER IBRAHIM SHATA BDLIYA, J.C.A.
LAND LAW: TITLE TO LAND; HOW SHOULD A CLAIMANT IN AN ACTION FOR TITLE TO LAND PROVE HIS CASE
In an action for declaration of title to land the plaintiff can only succeed on the strength of his case and not, on the weakness of the case of the defence. The granting of title to land is always dependent on the discretion of the Court. The burden of proof is always on the plaintiff to prove his case on the preponderance of evidence or on the balance of probability. See Shittu v. Fashawe (2005) 14 NWLR (Pt. 949) P. 671 @ 690 and Ugwunze v. Adeleke (2009) 2 NWLR (Pt. 1070) P. 148 @ 173-174. PER IBRAHIM SHATA BDLIYA, J.C.A.

JUSTICES

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

1. MALLAM HAKILU SABON-GIDA
2. ESTATE OF LATE EMIR OF KATSINA
(Alhaji Muhammadu Kabir) Appellant(s)

AND

1. HAJIYA MARYAM HABU DAN-NAMASHI
2. HAJIYA BILKISU HABU-DAN NAMASHI
3. HAJIYA FADINATU HABU DAN-NAMASHI
4. HAJIYA HADIZA HABU DAN-NAMASHI
5. HAJIYA HALIMA HABU DAN-NAMASHI Respondent(s)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): By an amended Writ of Summons and Amended Statement of Claim, the respondents who were the plaintiffs at the lower Court (High Court of Justice, Katsina State) instituted suit No. KTH/41/2012, against the appellants who were the defendants, seeking the following reliefs:
1. A declaration that the piece of land situates at Sabon Gida Ward, along Jibiya Road on the North it is bounded with Mai Unguwa Sabon Gida, to the South Estate of Bala Dan Sani to the East by Jibiya road, and to the West by the house of the plaintiffs belongs to the plaintiffs.
2. A perpetual injunction restraining the defendants, their heirs, servants, agents, privies or any other person deriving title from the defendants from encroaching, trespassing or taking possession of the piece land described in relief 1 above.
3. General damages for trespass by erecting structures in the piece of land in the sum of N1,000,000.
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The 1st appellant filed a statement of defence. The 2nd appellant, who was joined during the trial of the case, did not file pleadings. The respondents called two (2) witnesses who testified

in support of their claims. The 1st appellant called one witness who gave evidence on his behalf. The 2nd appellant did not call witness. Learned counsel to the parties addressed the Court, after the taking of evidence. The learned trial Judge of the lower Court delivered his judgment on the 15th of May, 2013 wherein all the reliefs sought by the respondents were granted. Dissatisfied with the judgment of the lower Court, the appellants filed Notice and grounds of appeal on the 13th of August, 2013, seeking for an order allowing the appeal and setting aside the decision of the lower Court.

The appellants’ brief of argument was filed on the 16th of June, 2015, wherein 3 issues have been distilled from the grounds of appeal. The respondents, brief of argument was filed on the 25th of August, 2015 wherein the 3 issues for determination in the appellants’ brief of argument were adopted. The appeal come up for hearing on the 23rd of March 2016, whereat, learned counsel to the appellant adopted the brief of argument and urged the Court to allow the appeal and set aside the judgment of the lower Court. Learned counsel to the respondents adopted the brief of

argument and urged the Court to dismiss the appeal and affirm the judgment of the lower Court. The 3 issues for determination in the appeal are these:
1. Whether the trial Judge was right in granting the respondents title to the land in dispute. (Distilled from grounds 1 and 2 of the notice of appeal).
2. Was the trial Judge right in awarding N50,000.00 general damages to the respondents. (Distilled from ground 3 of the notice of appeal).
3. Whether the judgment of the trial Court was against the weight of evidence. (Distilled from ground 4 of the notice of appeal).

RESOLUTION OF ISSUES
Issues 1 and 3 are intertwined or dovetailing such that one cannot be resolved without delving into the other. For this reason, they are taken hereunder and resolved, then issue 2.

ISSUES 1 (ONE) AND 3 (THREE)
Saulawa, Esq., of learned counsel to the appellant submitted that the respondents failed to plead facts and adduce evidence on how they acquired title to the parcel of land in dispute. That to be entitled to their claim of title to the said land, they ought to have pleaded facts in support, and then adduced evidence proving their title

by any of the five (5) ways enunciated in the case of Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) P. 332 based on traditional evidence or history same must be pleaded and proved by cogent evidence. The case of Bamgboye v. Olusoga (1996) 4 SCNJ P. 154 @ 165 cited to buttress the submissions supra. Counsel did contend that the lower Court ought to have dismissed the respondents’ claim as there was no cogent evidence adduced to have warranted granting same. The case of Edosomwan v. Ogbeyfun (1996) 4 SCNJ P. 21 @ 33 cited in aid. In conclusion, learned counsel did urge that the appeal be allowed for the judgment of the lower Court is not supported by the evidence, that is, the decision is against the weight of evidence. The case of Balogun v. EOCB (Nig.) Ltd (2007) 5 NWLR (Pt. 1028) P. 584 @ 609 cited to buttress the submission that any decision which is against the weight of evidence is to be set aside on appeal by an appellate Court.

Na-Allah Esq., of learned counsel to the respondents, submitted that the 1st appellant had in his statement of defence admitted that the parcel of land in dispute was given to the respondents’ father, and upon his demise, they inherited same,

therefore, having admitted the claim of title by the respondents, he is deemed to have agreed to their claim. That what is admitted requires no further proof. On the contention that the judgment of the lower Court is against the weight of evidence, counsel submitted that the evidence adduced by the respondents through PW1 and PW2 on how their father was given the parcel of land and his occupation of same, clearly established their right to inherit same, therefore, it cannot be correct to say that the judgment of the lower Court is against the weight of evidence.

On page 59 of the printed record of appeal, the learned trial judge of the lower Court found and held thus:
“On the whole this Court has noted that the defendant has agreed that the land does not belong to him, hence he could not have built a School and Mosque on the said land. The letter from the Emirate counsel has the heading “to whom it may concern”. The letter was not addressed to this Court and no one testified on the content of the letter hence I say no more on it.
This Court is in agreement with the submission of counsel to the plaintiffs that a pleading without evidence goes to

no issue. All the averments referred to in this judgment have not been supported by evidence hence this Court hereby discountenance same. In view of the foregoing I find that the plaintiffs have proved their case on preponderance of evidence, I therefore enter judgment in their favour.”

The learned trial judge of the lower Court considered the pleadings and the evidence adduced in support by the respondents in arriving at his decision that they proved their case on the preponderance of evidence or on the balance of probability. The respondents (as plaintiffs) pleaded facts in support of their claim in the amended statement of claim dated 3rd of September, 2012, which can be found on pages 10-13 of the printed record of appeal. Paragraphs 1-4 thereof are germane and they are reproduced hereunder:
“1. The first plaintiff was the wife of the late Mallam Habu Dan Namashi (of the blessed memory) of Sabon Gida quarters along Jibiya Road, Katsina. The second through the fifth plaintiffs are the children of Mallam Habu Dan Namashi.
2. The Emir of Katsina, Alhaji Usman Nagogo has given a virgin land to Mallam Habu Dan Namashi along Jibiya road sometimes

in 1977, before the coming into of the Land Use Act 1978.
3. Sometimes in 1980, the said Mallam Habu Dan Namashi has applied for a building permission of the land allocated to him by the then Emir of Katsina which was accordingly approved by the then Katsina Local Government. The said building permission is hereby pleaded and shall be relied upon at the trial of this suit.
4. Four years thereafter the said Habu Dan Namashi died without developing the piece of land and the said piece of land devolved into the plaintiffs among others through inheritance.”

The 1st appellant filed statement of defence in response to the respondents’ amended statement of claim. Paragraphs 1, 2, 3, 4(a)-(c) thereof are relevant to the dispute between the parties, same are reproduced hereunder:
“1. The defendant admits Paragraphs 1 & 5 of the plaintiff amended statement of claim.
2. The defendant admit Paragraph 2 of the plaintiffs amended statement of claim only to the extent that the Late Emir of Katsina Alhaji Usman Nagogo as Emir of Katsina gave a piece of land to Late Mallam Habu Dan Namashi along Jibiya Road sometimes in 1977 for building a

residential house which the Late Mallam Habu Dan Namashi actually built on before his demise.
3.The defendants are not in the position to answer or deny Paragraph 3 of the plaintiffs Amended statement of claim and the plaintiff are put in the strictest proof of same.
4. The defendants admit Paragraph 4 of the plaintiff Amended statement of claim only to the extend that Mallam Habu Dan Namashi is late and in response to other assertion contained in the said paragraph, the defendant state as follows:
a. That the Land in dispute including the piece of land upon which the Late Mallam Habu Dan Namashi built his residential house accommodating the plaintiffs form part and parcel of the expense of Land belonging to the Katsina Emirate Council.
b. That the Late Emir of Katsina, Alhaji Usman Nagogo out of benevolence, allotted a piece of land to Late Mallam Habu Dan Namashi to develop and keep his family.
c. That Late Mallam Habu Dan Namashi actually developed and built on this piece of land allotted to him and kept the plaintiffs therein before his demise.”

By the provisions of Section 123 of the Evidence Act, 2011, the appellants admitted

the respondents’ claim of title to the parcel of land through their father who was given the same by Emir of Katsina in 1977. Section 123 of the Evidence Act, 2011, provides:
“123. No fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings.”
An admission is a statement, oral or written (expressed or implied) which is made by a party or his agent in a civil proceedings and which statement is adverse to his case. It is admissible against the maker as the truth of the fact asserted in the statement. In a civil case, admissions by a party is an evidence of the facts asserted against, but not in favour of such party. See Nwuke v. U.B.N. (2009) 10 NWLR (Pt. 1148) P. 1 @ 27 where a defendant admits a fact in dispute by his pleadings, that fact is taken as established and formed one of the agreed facts in the case. What is admitted or not disputed needs not be proved. See Agbredo v. U.B.N. Ltd

(2007) 7 NWLR (Pt. 666) P. 534; Okafor v. Dumez (Nig) Plc (1998) 13 NWLR (Pt. 580) P. 88; Abu v. Ughi (1995) 8 NWLR (Pt. 413) P. 533 and Omorhihi v. Enaterwere (1988) 1 NWLR (Pt. 73) P.746.
On the evidential value of admission in civil proceedings, where a party admits the contents of the averments in the statement of claim, Georgewill J.C.A. in considering admitted fact, in the case of Eco International Bank Plc v. Nigerian Union of Local Government Employees, Jalingo Local Government Council & Anor (2015) 10 NWLR (Pt. 466) P. 49 @ 84, had this to say.
“The law is and has always been that what is admitted needs no further proof and this is so because in the adversarial system of administration of justice in operation in our civil jurisprudence, admission is perhaps one of the best forms of evidence in favour of the party whose fact or claim is admitted by the other party. See Sections 20 and 123 of the Evidence Act, 2011; See also FMH v. Commet Shipping Agencies (2009) All FWLR (Pt. 483) 1260, (2007) 12 NWLR (Pt. 1145) 193; Salawu v. Yusuf (2007) All FWLR (Pt. 384) 230 @ P. 236, (2007) 12 NWLR (Pt. 1049) 707. In law therefore, with the express

admission of liability by the 2nd respondent as contained in Exhibit F, there was in my finding no further duty on the appellant to prove the 2nd respondent’s indebtedness to the appellant. An admission against self interest is completely and sufficiently in my finding discharges the minimal onus of proof on the appellant in the face of the unchallenged affidavit and documentary evidence relied upon by the appellant in the proceedings before the Court below. See Adike v. Obiareri (2002) 4 NWLR (Pt. 758) 537; FCE Ltd v. Anyanwu (1997) 4 NWLR (Pt. 501) 533, Onyenge v. Ebere (2004) 3 NWLR (Pt. 889) 20.”
The main purpose of admission made in the pleadings is to obviate the necessity of proof of such admitted facts since they would be accepted as established. Kenlik Holdings Ltd v. R. E. Investment Ltd (1997) 11 NWLR (Pt. 529) 438; F.C.E v. Anyanwu (1997) 4 NWLR (Pt. 501) 533; Salu v. Egeibon (1994) 6 NWLR (Pt. 358) 23; Edokpolo and Co. Ltd v. Ohenhen (1994) 7 NWLR (Pt. 385) 511. Pleadings are meant primarily to let parties know each other’s case. Therefore, all matters not denied in the pleadings whether raised in the statement of claim or statement of

defence are taken as admitted. Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745; Lewis & Peat (N.R.I.) Ltd v. Akhimien (1976) 7 SC 157.
Any fact(s) expressly admitted or deemed admitted in a party’s pleadings need not be proved by the other party. See Balogun v. EOCB (Nig) Ltd (2007) 5 NWLR (Pt. 1028) P. 584 @ 600 and Uredi v. Dada (1988) 1 NWLR (Pt. 69) P.237.

I am not unmindful of the requirement of the law that in civil cases the standard of proof is on the preponderance of evidence or on the balance of probability. Consequently, the plaintiff is expected to adduce evidence to satisfy the requirement enunciated supra. See UBA Plc v. Mustafa (2004) 1 NWLR (Pt. 855) P. M3 @ 468-469, wherein this Court per Nzeako, JCA held that:
“Again, civil suits are decided on the balance of probabilities, on the preponderance of evidence. This presupposes that trial Court has had a consideration of all the evidence before it. This presupposes that trial Court has had a consideration of all the evidence before it, led by both parties. This connotes that the totality of the evidence, that is to say, the evidence of both parties is bound to be taken into account,

and appraised so as to determine which evidence has weight and which has none.”

In an action for declaration of title to land the plaintiff can only succeed on the strength of his case and not, on the weakness of the case of the defence. The granting of title to land is always dependent on the discretion of the Court. The burden of proof is always on the plaintiff to prove his case on the preponderance of evidence or on the balance of probability. See Shittu v. Fashawe (2005) 14 NWLR (Pt. 949) P. 671 @ 690 and Ugwunze v. Adeleke (2009) 2 NWLR (Pt. 1070) P. 148 @ 173-174.

Apart from the admission of the appellants of the respondents’ claim of title to the land in dispute, the learned trial Judge of the lower Court considered and evaluated the evidence of the appellants and the respondents in arriving at his decision on page 59 of the record of appeal, that is, the learned trial Judge was satisfied that the respondents proved their claims on the preponderance of evidence or on the balance of probability. The evidence of PW1, Bilkisu Abubakar can be found on pages 32 to 33. The gist of her testimony is that in 1977 the Emir of Katsina Sir, Usman Nagogo

gave their father the parcel of land in dispute. That he took possession of the land and developed it by building on it. PW2 was Sani Balarabe Saulawa. He identified the signature on the document given to the father of the respondents to develop the land. He was then the Head of Health Department at the time, that is in 1980. He was the person in charge of the issuance of certificate of occupancy in Katsina Local government. He signed the document which is Exhibit “A”.

For the appellants, Mallam Akilu, the 1st appellant testified as DW1, he testified that the land he occupied was given to him by Emir of Katsina Alhaji Kabir Usman. That the respondents were his neigbours. He went further to testify that:
“The place where the classrooms were built is not part of my house it used to be empty with trees and horses in belonging to the Emir are being kept. Yes I am aware that where the plaintiffs are residing was given to them by the Emir of Katsina. Yes the plot in dispute and where they reside all belong to Emirate council.”
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The learned trial judge considered and evaluated the evidence adduced by the appellants and the respondents as enunciated in

the case of Ifori v. Tella (2006) 18 NWLR (Pt. 1011) P. 272, wherein Augie, JCA held that:
“Evaluation of evidence entails the assessment of evidence so as to give value or quality to it, it involves a reasonable belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other.”
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The learned trial Judge of the lower Court evaluated the evidence before it on pages 56-59 of the record of appeal before arriving at the decision that the respondents proved their claim of title to the land in dispute on the preponderance of evidence. He accordingly granted all the reliefs sought by them. I am in agreement with the learned trial Judge because the appellants did not adduce credible evidence to controvert or contradict the evidence of the respondents on how they acquired title to the disputed parcel of land. The 2nd appellant, who owned the land before giving it out to the respondents’ father did not file pleadings, nor adduced evidence. In law, he is deemed to have admitted the

claim of the respondents. The evidence of PW2 who signed the instrument in respect of the land when it was given to the respondents’ father has not been controverted by the appellants. The 1st appellant having admitted the claim of the respondent in his statement of defence, cannot turn round to deny the claims of the respondent, unless he could adduce credible and cogent evidence which he failed to do so. In the circumstances, the respondents were able to adduce cogent evidence proving their title to the land as found by the lower Court. After all, where the opposite party admits the claims of the plaintiffs, only a minimal evidence is required to prove the claim, which the respondents did in the matter at the lower Court.

Learned counsel to the appellants did submit that the judgment of the learned trial Judge of the lower Court is against the weight of evidence. What is meant by judgment against the weight of evidence. In Balogun v. EOCB (Nig) (2007) 5 NWLR (Pt. 1028) P. 584 @ 609, this Court held that whenever it is alleged that a judgment is against the weight of evidence, what it means is that:
(a) the judgment of the trial Court cannot be

supported by the weight of the evidence adduced by the successful party, which the trial Court either wrongly accepted or that the inference drawn or conclusion reached by the trial Court based on the accepted evidence cannot be justified; or
(b) there is no evidence, which if accepted would support the findings of the trial Court; or
(c) when the evidence adduced by appellant is weighed against that adduced by the respondent, the judgment given in favour of the respondent is against the whole gamut of evidence adduced before the trial Court. Anyaoke v. Adi (1986) 3 NWLR (Pt. 31) 731 referred to P. 609.
In Vena v. Access Bank Plc (2015) All FWLR (Pt. 722) P. 1765 @ 1794, this Court enumerated what an appellate Court should do whenever a judgment of a trial Court is challenged for being against the weight of evidence. This Court said:
“Where a judgment of the lower Court is challenged on the basis of being against the weight of evidence, it behoves the appellate Court to review the judgment to ascertain the following:
(a) The evidence before the trial Court
(b) Whether the trial Court accepted or rejected any evidence upon the

correct perception.
(c) Whether it correctly approached the assessment of the value on it;
(d) Whether it used the imaginary scale of justice to weigh the evidence on either side;
(e) Whether it appreciated upon the preponderance of evidence, which side the scale weighed, having regard to the burden of proof.
In the instant case, where the trial Court properly evaluated the evidence before it, the Court of Appeal did not interfere with its findings which were based thereon. Agbonifo v. Aiworioba (1988) 1 NWLR (Pt. 70) 325; M.I.S.R. (Nig) Ltd v. Ibrahim (1975) 5 SC 55.”

I do not agree with learned counsel to the appellants that the judgment of the lower Court is against the weight of evidence because:
(i) The 1st appellant in his statement of defence admits the pleadings of the respondents in their amended statement of claim.
(ii) The evidence of PW1 and PW2 on how the respondents acquired title to the parcel of land in dispute was not challenged nor contradicted by the appellants.
(iii) The evidence adduced by the respondents and weigh the evidence of DW1, the 1st appellant who admitted that the land in dispute was

allocated to the father of the respondents who were his children who could inherit his property.
(iv) The learned trial judge of the lower Court, evaluated the evidence before him whereby he preferred and accepted the evidence of the respondent, and relied on same in holding that the respondents proved their case on the preponderance of evidence or on the balance of probability as required by law.

What is more, the evidence before the lower Court established that the late Emir of Katsina, Sir Usman Nagogo gave the land to the respondents’ father in 1977, whereas the 1st appellant’s evidence is that Late Alhaji Kabir Usman, Emir of Katsina gave him the land in 1988. The law is trite by the doctrine of priority of interest as propounded in the case of Ejuejami v. Olaiya (2001) 12 SCNJ P. 100 @ 168, that is, the first in time takes precedence over the latter. See Awoyegba v. Ogbeide (1983) 1 NWLR (Pt. 73) P. 695 and Tewogbade v. Obalina (1994) 4 SCNJ P. 161.
Where two or more persons claim title to land or a right of occupancy over the same land, the first in time takes priority as it is stronger in law. The latter grantee is deemed not to have

been granted any title or right of occupancy. A grantor of title or right of occupancy cannot give title or right of occupancy to two persons, one must be valid, the other invalid. The law is trite one cannot grant title over a parcel of land and still be in legal position to grant such title to another. He would have no such title to grant to the latter grantee under the doctrine of “nemo dat quad non habet” See FBB Ind. Ltd v. Mutunci Co. (Nig.) Ltd (2012) 6 NWLR (Pt. 1297) P.487 @ 524; Omiyale v. Macaulay (2007) 7 NWLR (Pt. 1141) P. 597; Ibrahim v. Osunde (2009) 6 NWLR (Pt. 1137) P. 382; Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) P. 1 and Dantsoho v. Mohammed (2003) 6 NWLR (Pt. 817) 457.

Issues 1 and 3 are hereby resolved against the appellants for reasons adumbrated herein this judgment.
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ISSUE 2 (TWO)
Was the learned trial judge right in awarding N50,000.00 general damages to the respondents? Saulawa Esq., of counsel, contended that the learned trial judge of the lower Court was not right in awarding the sum of N50,000.00 as general damages to the respondents’ counsel further submitted that to be entitled to damages for trespass to land, the

claimant must adduce credible evidence proving that he has been in exclusive possession of the land at the time of the trespass. The case of Okoko v. Dakolo (2006) 14 NWLR (Pt. 1000) P.401 @ 434 cited to buttress the submission supra. Counsel pointed out that the evidence of PW1 and PW2 are not cogent or credible to establish trespass to the parcel of land in dispute, which is the basis of the claim of general damages.

For the respondents Na-Allah Esq., submitted that the learned trial judge of the lower Court exercised his discretion correctly in awarding the general damages to the respondents. That the appellants erected structures on the land belonging to the respondents which is trespass to land in law. That by Exhibits A and A1, the respondents proved their title to the land and being in possession, therefore the appellants committed trespass by entering same without the consent of the respondents. As to what is general damages, and in what circumstances it can be awarded, counsel cited and relied on the case of Gege v. Nande (2006) 4 JNSC (Pt. 14) p. 737, wherein this Court defined same, and listed what are to be considered in awarding general

damages. In conclusion, counsel submitted that to succeed in an action for the tort of trespass, the claimant must show by evidence that he has been wronged by the trespasser which is a violation of his right.

The learned trial Judge of the lower Court assessed and awarded the sum of N50,000.00 as general damages for the tort of trespass committed by the appellants when they entered the parcel of land in dispute. What then is general damages? In UBA Plc v. Ogundokun (2009) 6 NWLR (Pt. 1138) P. 450 @ 489, general damages has been defined to be:
“General damages are damages which the law implies or presumes to have accrued from the wrong complained of or as the immediate, direct and proximate result of or the necessary results of the wrong complained of. It is awarded by the Court where it cannot point at any measure to assess the loss caused by the wrong complained of except the opinion and judgment of a reasonable man. (Mobil Oil (Nig) Ltd v. Akinfosile (1969) NMLR 217; Beecham Group Ltd v. Esdee Food Products (Nig) Products (Nig.) Ltd (1985) 3 NWLR (Pt. 11) 112; A. G. Oyo State v. Fairlakes Hotels Ltd (No. 2) (1989) 5 NWLR (Pt. 121) 255;

Consolidated Breweries Plc v. Aisowieren (2001) 15 NWLR (Pt. 736) 424.”
In Gege v. Nande (2006) 4 JMSC (Pt. 14) P. 757, Tsamiya JCA, defined general damages in these words:
“General damages are such as the law itself implies or presumes to have accrued from the wrong complained of, for reason they are its immediate, direct and proximate result or such as did in fact result from the wrong directly or proximate and without reference to the special character, condition or circumstances of the Plaintiff.”
The claim of general damages need not be specifically pleaded and or claimed like special damages. The law is trite, once it is established that a plaintiff has been wronged thereby suffered certain disabilities or injuries which do not entitle him to special damages, general damages can be awarded without more. General damages flaws generally from the defendant’s wrongful act or omission hence they are implied by law and need not to be specifically pleaded and strictly proved by evidence. See also Hanseafic Int. Ltd v. Usong (2002) 13 NWLR (Pt. 784) P. 784.

In a claim for general damages for trespass to land, all that the plaintiff needs to

prove is that he has exclusive possession, or he has the right to such possession of the land in dispute. But once a defendant claims to be the owner of the land in dispute, title to it is put in issue, and, in order to succeed, the plaintiff must show a better title than that of the defendant. However, where as in the instant case, the plaintiff has proved title by credible evidence, there is no additional burden on him to also prove exclusive possession because the presumption is that the person having title to land is in lawful possession. In such a case, Section 146 of the Evidence would be inapplicable. Amakor v. Obiefuna (1974) 3 SC 67; Makinde v. Akinwale (2000) 2 NWLR (Pt. 645) 435; Okafor v. Idigo (1984) 1 SCNLR 481.

In awarding general damages a trial Court has discretion when assessing the quantum. The circumstances and evidence adduced before the Court must be related to the desirability to award general damages, especially the quantum of the damages to be awarded. See Okolo v. Dankoto (2006) 14 NWLR (Pt. 1040) p. 401 @ 434.

Can this Court, being an appellate one, interfere or disturb the award of damages by the trial Court? The law is trite,

an appellate Court is not to interfere or disturb the awarding and assessment of general damages unless there is the need to do so under certain circumstances to be proved by the party complaining on whether the assessment was wrongly done or unjustifiable in law. In Ahmed v. C.B.N. (2013) 2 NWLR (Pt. 1339) P. 524 @ 541 the Supreme Court per Adekeye, J.S.C. enunciated that:
“Award of damages is an exercise of discretion by the trial Court. An appellate Court will not interfere with an award of damages by a trial court unless it is made under certain peculiar circumstances which include:
1. Where the exercise of discretion by the trial Court is perverse.
2. Where the Court acted under wrong principles of law or
3. Where the Court acted in disregard of applicable principles; or
4. Where the Court acted in misapprehension of facts; or
5. Where the Court took into consideration irrelevant matters and disregarded relevant matters whilst considering its award or
6. Where injustice will result if the appellate Court does not act; or
7. Where the amount awarded is ridiculously low or ridiculously high that it must have been an

erroneous estimate of the damages.
See Zik’s Press Ltd v. Ikoku (1951) 13 WACA Pg. 188; Idahosa v. Oronsaye (1959) SCNLR Pg. 407; Bola v. Bankole (1986) 3 NWLR (Pt. 27) pg. 141; Elf (Nig) Ltd v. Sillo (1994) 6 NWLR (Pt. 350) Pg. 258.

The respondent claimed the sum of N1,000,000.00 for trespass to the land by the appellants. There is evidence galore that the 1st appellant entered the land in dispute without the consent of the respondents who were in possession. The sum of N50,000.00 been awarded as general damages to the respondents. I am of the view that the learned trial Judge exercised his discretion judicially and judiciously in assessing and awarding the general damages to the respondents. I find no justifiable reason to disagree with the learned trial Judge on the award and quantum of the general damages. I resolve issue 2 against the appellant. Having resolved all the 3 issues against appellant, the appeal fails for being unmeritorious. The judgment of the lower Court delivered on the 15h of May 2013 in suit No. KFH/41/2012 is hereby affirmed. The respondents are entitled to costs assessed at N30,000. Same is awarded to the

respondents.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the draft of the lead judgment delivered by my learned brother, Ibrahim Shata Bdliya, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.

I too thus find no merit in the appeal and I hereby dismiss same. I affirm the judgment of the High Court of Katsina State in Suit No. KTH/41/2012 delivered by Honorable Justice Abdullahi Yusuf on the 15th of May, 2013. I abide the order on cost in the lead judgment.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have been privileged with an advance copy of the lead judgment of my learned brother, Ibrahim Shata Bdliya, JCA and I am in entire agreement with his lordship’s reasoning and conclusions. This appeal fails and is hereby dismissed. The judgment of the lower Court delivered on 15/5/13 is accordingly affirmed. I abide by the order of costs granted.

Appearances

A. M. Saulawa, Esq.For Appellant

AND

Yakubu Muhammad Na-Allah, Esq.For Respondent