MORKA & ORS v. OSADEME (2022)

MORKA & ORS v. OSADEME

(2022)LCN/17136(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/AS/161/2020

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

1. MONDAY MORKA 2. ODIGIE JOSEPH 3. BONIFACE GBOMA 4. DAVID IMAGHODOR 5. ELEMOKA OHEH 6. ODIRIEN ATAGU APPELANT(S)

And

MR. JOSEPH OSADEME RESPONDENT(S)

RATIO

WHETHER OR NOT IT IS THE CAUSE OF ACTION IN THE ORIGINATING PROCESS THAT DETERMINES THE PROPER PARTIES THAT SHOULD BE BEFORE THE COURT

The law is settled that it is the cause of action as endorsed on the originating process that determines the proper parties that should be before the Court. See AG FEDERATION V. AG OF ABIA STATE & ORS (2001) LPELR-631(SC) AT 95 (B-C), BAKARE & ORS V. AJOSE-ADEOGUN & ORS (2014) LPELR-25024(SC) AT 47 (A-B), (2014) ALL FWLR (PT.737) 611. It is fundamental to adjudicatory competence for a Court to first examine the basis of dispute, that is, what led to instituting the suit which is otherwise called ‘Cause of Action’. See NWORIKA V, ONONEZE & ORS (2019) LPELR-46521(SC) AT 15-20(B-E). PER BOLAJI-YUSUFF, J.C.A.

THE POSITION OF LAW WHERE A COURT PROCESS IS DULY AMENDED BY THE ORDER OF THE COURT

The parties agreed that the extant pleading of the respondent upon which evidence was adduced in support of his case and upon which the Court based its judgment is the Further Amended Statement of Claim which was accompanied by an amended statement on oath of late Osademe Okoro deposed to on 9/6/2016. It is a settled principle of law that once a Court process is duly amended by the order of Court, what stood before the amendment is no longer material before the Court and no longer defines the issues to be tried before the Court. See NAGOGO V. CPC & ORS (2012) LPELR-15521(SC) AT 24-26(B-A), (2013) 2 NWLR (PT.1339) 448, OFORISHE V. NIGERIAN GAS CO. LTD (2017) LPELR-42766(SC) AT 16-17 (E-B), (2018) 2 NWLR (PT. 1602) 35. The amendment of late Osademe Okoro’s statement on oath is akin to amendment of pleadings or any other Court process. See REV. KING v. STATE (2016) LPELR-40046(SC) AT 37-38 (E-A), (2016) 6 NWLR (Pt. 1509) 529. PER BOLAJI-YUSUFF, J.C.A.

THE POSITION OF LAW WHERE TRADITIONAL HISTORY IS RELIED ON AS EVIDENCE FOR OWNERSHIP OF TITLE TO LAND

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Delta State delivered in suit no. AG/9/2014 on 24/3/2020. In his Further Amended Statement of Claim, the respondent who was substituted for his late father, Okoro Osademe, the original claimant sought for declaration of title to a parcel of land lying and situate along Odeh Street, Ogbeisogban, Igbogili Abavo in Ika South Local Government Area bounded by Moses Ojeifo, Adanamigho Ikotu, Safa Nase, Jegbefume, Adagbonye Asemota, Odogwu Agwuhia, Okoh Ogbezuwa, Felix Edugie, Odeh Street, N50,000,000.00 (Fifty Million Naira) as special and general damages for trespass and an order of perpetual injunction restraining the defendants, their agents, servants and privies from committing further acts of trespass on the respondent’s land.

The case of the respondent was that Modia, great grandfather of Osademe Okoro deforested the land in dispute many years ago and farmed on it till his death. After Modia’s death, his son Gege inherited the land and he too farmed on the land till his death. Upon the death of Gege, his son Okoro inherited the land and continued farming on the land. Osademe Okoro grew up to meet his father, Okoro on the land and he joined him in farming on the land. Upon the death of Okoro, Osademe Okoro inherited the land. He planted palms, cashew, rubber, mango trees, peers and bamboos and was harvesting the crops without any disturbance from anybody. In February 2013, the appellants unlawfully broke into the land, damaged the economic crops and set them ablaze. The matter was reported to the police but after their investigation, the police ruled that the matter was a civil matter.

The appellants’ case was that the land in dispute known and called Eku Ugbo Ogbe situate behind Modern School (now Institute of Continuing Education, I.C.E) off Igbogoli/Ogbe Idibou Road, Igbogili, Abavo has from time immemorial been and is still the communal land of Ogbeisogban Community, Igbogili Quarters, Abavo in Ika South Local Government Area of Delta State. The respondent has never been in possession and is not the owner of the land in dispute. The appellants grew up and met their fathers farming on the land and they joined their fathers in farming on the land. The appellants successfully defended the community’s title in suit no 123/52 instituted against Mr. Okocha and Mr. Okoh. The appellants’ community normally maps out some acres of land from the said reserved communal land for farming every four years. The area of the land so mapped out is usually rented out to some members of the community. In the year 2000, eighteen acres of the land was mapped out at N1,000 per acre which every person renting the land paid. Okoro Osademe rented one acre out of the said eighteen acres mapped out. Surprisingly instead of paying rent, he instituted Suit No. ADCC/21/2000 against one Igbodo Ojeifor and two other persons who are indigenes of Ogbeisogban Community, Abavo for allegedly setting fire to his farm. In re-action, the appellants’ community, Idumu-Isogban now Ogbeisogban filed a fresh Suit No. ADCC/24/2000, Okoh Ogbezuwa & 3 Ors V. Osademe Okoro wherein they claimed damages for trespass against Osademe Okoro. The parties later met and resolved the matter out of Court. Terms of settlement was filed in Court wherein it was clearly stated that the land in dispute in the two cases is communal land belonging to the appellants’ community.

According to the appellants, there has never been any person in Abavo called Mordia who deforested any land which eventually got to the respondent through chains of inheritance.

The Late Osademe Okoro testified as the claimant. He called the respondent herein as CW1 and one other witness as CW2. The 1st appellant and two other witnesses testified for the defence and tendered documents which were admitted as Exhibits D1-D5. Written addresses were exchanged and adopted by counsel to both parties. The Court in its considered judgment entered judgment in favour of the respondent and against the appellants as follows:
“Having found that the claimant has established his claim to the land in dispute on a balance of probability and therefore entitled to a statutory right of occupancy in respect of same and that the defendants did trespass into the land in dispute, the claimant is also entitled to the 3rd relief which is perpetual injunction against the defendants. The 2nd issue is answered in the affirmative and judgment is accordingly entered for the claimant as follows:-
1) A declaration that the claimant is entitled to the grant of statutory right of occupancy of all that piece and parcel of land lying and situate along Odeh Street, Ogbeisogban, Igbogili, Abavo in Ika South Local Government Area within jurisdiction bounded by Moses Ojeifo, Adanamigho Ikotu, Safe Nase, Jegbefume, Adagbonye Asamota, Odogwu Agwuhia, Okoh Ogbezuwa, Felix Edugie, Odeh Street as shown in the litigation plan.
2) The sum of N2,395,000.00 (Two Million, Three Hundred and Ninety-Five Thousand Naira) only as special damages.
3) The sum of N1,000,000.00 (One Million Naira) only as general damages for trespass.
4) An Order for Perpetual injunction, restraining the defendants, their agents, servants, privies from committing further acts of trespass on the claimant’s land.”

The appellants filed a notice of appeal containing nine grounds of appeal against the judgment on 19/6/20. The appellants’ brief of argument was filed on 25/3/21. It was deemed as properly filed and served on 30/9/21. The respondent’s brief of argument was filed on 1/11/21.
The appellants formulated the following issues for determination:
1. Whether the non-joinder of Ogbeisogban Community as defendant in the suit does not in any way affect the competence of the suit and jurisdiction of the trial Court to adjudicate on the matter with no proper defendant considering the nature of Late Mr. Osademe Okoro’s claims and the state of appellants’ pleading (Ground 9)
2. Whether from the facts and circumstances of this case, Late Mr. Osademe Okoro could be regarded as someone who made a written statement on oath which he could rely on in proof or in support of his case as required by the High Court of Delta State (Civil Procedure) Rules, 2009 (Ground 8).
3. Whether His Lordship properly evaluated available evidence before coming to the conclusion that Late Mr. Osademe Okoro proved his ownership of the land in dispute by traditional evidence (Grounds 1, 2, 3, 4, 5)
4. Whether His Lordship is justified in coming to the conclusion that Late Mr. Osademe Okoro proved his claim of special damages (Ground 6)
5. Whether the award of general damages against the appellants is justified in the circumstances of the case (Ground 7).

The respondent did not formulate his own issue. He responded to all the issues formulated and argued by the appellants. On issue 1 which I re-formulate as follows: Whether the non-joinder of Ogbeisogban Community as a defendant in the suit affect the competence of the suit and jurisdiction of the trial Court to adjudicate on the matter? On this issue, the appellants’ counsel submitted that the lower Court had no jurisdiction to adjudicate on the respondent’s claim because the Ogbeisogban Community that owned the land in dispute and were parties to suit no. ADDCC/24/2000 which suit was denied by the respondent but which the Court accepted exists was not joined as a defendant in this case. He referred to PLATEAU STATE V. A.G. FED (2006) 137 LRCN 1400 AT 1483 (RATIO 2). LSBP CORPORATION V. P.T (NIG.) LTD (2012) 214 LRCN 144 AT 171-174 (RATIO 7). U.O.O. (NIG.) PLC V. OKAFOR (2020) 302 LRCN 56 AT 80 (RATIO 2). Counsel argued that in the absence of the Ogbeisogban Community, the finding that the appellants did not plead how the community came to own the land in dispute is not appropriate because it is only when the community is made a party to the case that it becomes necessary to plead how the community came to own the land. He contends that non-joinder of Ogbeisogban Community as a defendant is fatal to the respondent’s case.

The respondent’s counsel in his response submitted that the appellants are the ones laying claim to the land in dispute and not the community and the respondent did not mention the community as the trespasser nor seek any relief against the community.

RESOLUTION
Order 13 Rules 3 and 8(1) of the High Court (Civil Procedure) Rules, 2009 of Delta State provide that:
3. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. Judgment may be given against such one or more of the defendants as may be found to be liable according to their respective liabilities without any amendment.
8. (1) No proceedings shall be defeated by reason of misjoinder or non-joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him.

The law is settled that it is the cause of action as endorsed on the originating process that determines the proper parties that should be before the Court. See AG FEDERATION V. AG OF ABIA STATE & ORS (2001) LPELR-631(SC) AT 95 (B-C), BAKARE & ORS V. AJOSE-ADEOGUN & ORS (2014) LPELR-25024(SC) AT 47 (A-B), (2014) ALL FWLR (PT.737) 611. It is fundamental to adjudicatory competence for a Court to first examine the basis of dispute, that is, what led to instituting the suit which is otherwise called ‘Cause of Action’. See NWORIKA V, ONONEZE & ORS (2019) LPELR-46521(SC) AT 15-20(B-E).

A careful look at the averments in the Further Amended Statement of Claim reveals that the cause of action in this case is the unlawful entry and destruction of the respondent’s crops on the land in dispute by the appellants in February, 2013. All the reliefs sought by the respondent stated earlier in this judgment are against the appellants. No relief was sought against Ogbeisogban Community. The basis of the respondent’s claim is that the land in dispute belonged to his ancestor through whom the land devolved on him and that the land is not a community land. It is the appellants that claimed that the land is a community land. The decision in AWONIYI & ORS V. THE REG. TRUSTEES OF AMORC (NIG) (2000) LPELR-655 AT 8 (D-E). (2000) 10 NWLR (PT.676) 522 relied on by the appellant is that parties against whom complaints are made in an action must be made parties to such action. There is no complaint against the community in this case. The law is settled that the Court cannot compel a claimant to sue a party against whom he has no complaint or has no desire to sue. See IN RE: MOGAJI (1986) LPELR-1891(SC) AT 17 (AOB), (1986) 1 NWLR (PT.19) 759, AYORINDE & ORS. V. ONI & ANOR (2000) LPELR-684 (SC) AT 27 (D-F).

The contention of the appellants that the community ought to have been joined is based on the fact that the respondent instituted suit no. ADCC/21/2000 against Igbodo Ojeifor & 2 Ors while the Community instituted suit no. ADCC 24/2000 against the respondent. The two suits were settled out of Court and the terms of settlement were made judgment of the Court. The land in dispute in the two cases was clearly identified in Exhibit D3. The identity of the land in dispute in the present case was pleaded in paragraphs 2 and 18 of the Further Amended Statement of Claim. The appellants in paragraph 3 (C) of their 2nd Further Amended Statement of Defence admitted that the boundaries of the land in dispute are as stated by the respondent. The lower Court at pages 295-296 of the record of appeal compared the identity of the two lands and held that the land in dispute in Exhibit D3 and the land in dispute in the present case are not the same. The Court concluded that:
“Having found that the parties in Exhibit D3 and the present case are not the same and that the land in dispute in Exhibit D3 and the present case are the same (sic) the plea of estoppels per rem judicatam cannot avail the defendants. Same fails. Having failed this Court has the jurisdiction to entertain this suit.”

The finding of the lower Court that the land in dispute in the previous suits and the land in dispute in this case are not the same is unassailable in view of the clear identification of the boundaries of the two lands. The law is trite that before the doctrine of estoppels can operate, it must be shown that the parties, issues and subject-matter in the previous suit are the same as those in the action in which the plea of estoppels is raised. Since the land in dispute in this case is not the same as the land in the previous suits and the respondent has no complaint or claim against the community, the finding of the lower Court that the plea of estoppel per rem judicatam cannot avail the appellants is in consonance with the law. The contention of the appellants that the suit is not properly constituted for failure to join the Ogbeisogban Community is misconceived in law. Issue 1 is resolved against the appellants.

Issue 2 is whether from the facts and circumstances of this case, Late Mr. Osademe Okoro could be regarded as someone who made a written statement on oath which could be relied on in proof or in support of the respondent’s case as required by the High Court of Delta State (Civil Procedure) Rules, 2009. On this issue, the appellants’ counsel argued that since the late Osademe Okoro, the original claimant denied making and signing the statement made on 9/6/16 in the previous proceedings the lower Court was in error to hold that the Court could rely on the statement because the said Late Osademe Okoro adopted the statement as his evidence in the trial which started de novo. He submitted that the case of BABATUNDE V. P.A.S. & T LTD (2007) 13 NWLR (PT.1050) 113 AT 147 cited by the lower Court is not applicable to the present case. He also submitted that the particular statement adopted by late Osademe Okoro is not known as he did not state which of his statements he adopted as his evidence before the Court.

The respondent’s counsel in his response submitted that it is a clear principle of law that once a process has been duly amended, it is replaced by the amended version. He referred to RTSLBC VS NNIKOL RES LTD (2015) 14 NWLR PT 1479 PG 393 RR2. He argued that the appellants’ counsel cannot claim ignorance of the particular statement on oath adopted by late Osademe Okoro as his evidence before the Court because the appellants’ counsel cross-examined him based on the statement on oath and the same counsel clearly identified the statements on oath adopted by the various parties and their witnesses in his final address at the lower Court.

RESOLUTION
The parties agreed that the extant pleading of the respondent upon which evidence was adduced in support of his case and upon which the Court based its judgment is the Further Amended Statement of Claim which was accompanied by an amended statement on oath of late Osademe Okoro deposed to on 9/6/2016. It is a settled principle of law that once a Court process is duly amended by the order of Court, what stood before the amendment is no longer material before the Court and no longer defines the issues to be tried before the Court. See NAGOGO V. CPC & ORS (2012) LPELR-15521(SC) AT 24-26(B-A), (2013) 2 NWLR (PT.1339) 448, OFORISHE V. NIGERIAN GAS CO. LTD (2017) LPELR-42766(SC) AT 16-17 (E-B), (2018) 2 NWLR (PT. 1602) 35. The amendment of late Osademe Okoro’s statement on oath is akin to amendment of pleadings or any other Court process. See REV. KING v. STATE (2016) LPELR-40046(SC) AT 37-38 (E-A), (2016) 6 NWLR (Pt. 1509) 529.

The Amended Statement of Claim was further amended sequel to an application filed on 9/6/16 and granted on 10/6/16. Therefore, the valid statement on oath of late Osadebe Okoro is the amended statement on oath filed along with the Further Amended Statement of Claim contained on pages 158-163 of the record of appeal. Any statement on oath of late Osademe Okoro filed before the amended statement on oath is immaterial in the determination of the issues in this case and cannot be considered as the basis of the respondent’s case. It is not indispute that the only valid statement of Osademe Okoro as at 17/12/17 when he testified and adopted his statement on oath is the amended statement on oath filed along with the Further Amended Statement of Claim.

The appellants cannot be heard to say that they do not know the statement that was adopted by him. In Exhibit D2 which was tendered by the appellants through him, he identified the statement made on 9/6/16 as his statement and adopted same as his evidence before the Court. His evidence under cross-examination in Exhibit D2 can only be used for the purpose of testing his credibility as it is settled law that evidence of a witness taken in earlier proceedings is not relevant in a later trial except for the purpose of discrediting such witness on cross-examination and for that purpose only. See SANYAOLU v. COKER & ORS (1983) LPELR-3012(SC) AT 17-21(E-C), EZE V. ENE & ANOR (2017) LPELR-41916(SC) AT 26-30(A-D). The lower Court cannot rely on the evidence in the aborted proceedings to conclude that late Osademe Okoro did not make the statement adopted by him as his evidence in chief in a trial that started de novo and upon which he was cross-examined by the opposing party.

Even if the statement of late Osadebe Okoro is discountenanced as canvassed by the appellants but there is no reason to so do, there is the statement of CW1 deposed on 16/2/2016 which he adopted as his evidence before the Court and on which he was extensively cross-examined. It is not the law that a party must testify in his own case if he can prove his case by calling other witnesses. See EZE V. NWANKWO & ORS (2015) LPELR-40666(CA) AT 26-27 (B-A), ASUQUO & ANOR v. OMOLE & ANOR (2019) LPELR-47867(CA) AT 41-42(E-B). In any case, CW1 is now the respondent in this appeal. The contention of the appellants’ counsel that the statement adopted by late Osademe Okoro is unknown and the respondent’s pleading is deemed to have been abandoned is misconceived in law. Issue 2 is resolved against the appellants.

Issue 3 is whether the lower Court properly evaluated the available evidence before coming to the conclusion that the respondent proved his ownership of the land in dispute by traditional evidence. On this issue, the appellants’ counsel submitted that late Osademe Okoro and the respondent did not satisfy the provisions of Section 115 (3 and 4) of the Evidence Act, 2011 as to the source of the information that Mordia defrosted the land in dispute and the lower Court ought not to have acted on the evidence. He referred to MAJA V. SAMOURIS (2002) 95 LRCN 341 AT 356. He also submitted that the late Osademe Okoro who relied on evidence of traditional history ought to have led evidence from other sources by calling an independent witness to make his traditional history convincing, credible and in satisfaction of Section 131(1) of the Evidence Act, 2011. He referred to OYEBANJI V. A.G. OSUN STATE (2005) 1 FWLR 363 AT 377-378 (RATIO 1). Counsel referred to the entire evidence of both parties. He contends that if the lower Court had properly evaluated the evidence, it would not have made the finding that the land in dispute is surrounded by individual lands and that the individuals inherited their lands.

In his response, the respondents’ counsel submitted that the evidence adduced by the respondent fulfilled the requirements for a successful reliance on traditional history. He referred to EWO V. ANI (2004) 3 NWLR (PT.861) 611 AT 619 (RATIO 15), NWABUEZE V. NWAIGWE (2001) 19 NWLR (PT. 199) 714 (RATIO 6). He embarked on an extensive analysis of the entire evidence adduced by both parties. He submitted that the lower Court made impeccable findings which are supported by evidence and arrived at a sound conclusion that the respondent established his claim to the land in dispute which findings cannot be disturbed.

RESOLUTION
The contention of the appellants’ counsel on the non-compliance with the provisions of the Evidence Act is untenable. First, there is a plethora of cases by which it has been settled that witness statement on oath which should accompany a writ of summons by virtue of the High Court (Civil Procedure) Rules of Delta State is not the same as an affidavit and needs not comply with the provisions of the Evidence Act, 2011. Once an affidavit is deposed to as required by law, it becomes evidence on which the Court can rely and reach a decision in appropriate cases. A statement on oath does not become evidence until the maker/deponent adopts same as his evidence after being sworn as a witness before the Court. See ABUBAKAR V. ALI & ORS (2015) LPELR-40359(CA) At 45-46 (D-E), TAR & ORS V. MINISTRY OF COMMERCE & INDUSTRIES & ORS (2018) LPELR-44216(CA) AT 31-32 (C).

Secondly, it is accepted that traditional history is evidence of historical fact transmitted from generation to generation by word of mouth. It is by its nature hearsay evidence because the witnesses cannot speak from their personal knowledge. They only repeat the story which their ancestors had passed down from generation to generation. What the law requires a party relying on evidence of traditional history as his root of title to do is to plead and proof the following: (1) The name of the person who founded the land (2) How he founded the land, and (3) The intervening owners on whom the land devolved from its founder to the last successor without leaving gaps or creating mysterious linkages which cannot be explained. See AWODI & ANOR V. AJAGBE (2014) LPELR-24219(SC) AT 48 (B-F), (2015) 3 NWLR (PT.1447) 578. PADA V. GALADIMA (2018) 3 NWLR (PT. 1607) 436 AT 456 (C-F). Late Osademe Okoro by pleadings and evidence and the evidence of CW1 now the respondent traced the history of his root of title from Mordia who deforested the land to himself unlike the appellants who merely pleaded vaguely that the land in dispute is a communal land of Ogbeisogban Community and the community has been in exclusive possession of the land from time immemorial without stating how the community came to own the land. Osademe Okoro grew up and farmed with his father on the land in dispute. He was at a vantage position to talk about ownership of the land. It is not enough to assert that the land is a community land. A party who asserts communal ownership of land must plead and prove by cogent and credible evidence the name of the common ancestor who found the community. How the land in dispute became communal land and how the land has devolved from generation to generation till the present generation in the community. See ECHI V. NNAMANI (2000) 5 SC 62 at 78, OSUKPONG & ORS V. EDUOIKA & ANOR (2015) LPELR-24641(CA) AT 5-6 (E-D), ATALOYE & ORS V. JUMOKE (2016) LPELR-41317(CA) AT 16-17 (F-A), OBU & ANOR V. OKIGWE & ORS (2018) LPELR-43938(CA) AT 14-15(E-C). The appellants failed to plead and adduce evidence of how the community was founded and how the community became seized of the land in dispute. The lower Court carried out a detailed analysis and evaluation of the evidence adduced by both parties and held at pages 299-300 that if there is any communal land in Ogbeisogban Community, it is definitely not the one in dispute in this present suit as the defendants failed to state how the Ogbeisogban Community came to own the land in dispute.

I have perused the entire judgment. I agree with the respondent’s counsel that the learned trial judge did an excellent job as regards the appraisal and evaluation of the evidence adduced by both parties. It is the primary duty of a trial Court to evaluate evidence adduced before it and make definite findings on such evidence. Where the trial Court has properly performed its duty by ascribing the correct probative value to the evidence and make impeccable findings as the learned trial judge did in this case, the Court of appeal has no power to interfere with the judgment of the trial Court. See MEKWUNYE V. W.A.E.C.(2020) 6 NWLR (PT.1719).

The traditional evidence of the respondent is cogent and credible while that of the appellants fell far short of the requirements of the law. It is settled that once the traditional evidence is found to be conclusive and cogent, there would be no need whatsoever to require further proof. It would be sufficient to support a claim or declaration of title to land. See DIKE & ORS v. OKOLOEDO & ORS (1999) LPELR-946(SC) AT 13 (A-C), (1999) 10 NWLR (PT.623) 359, SOGUNRO & ORS V. YEKU & ORS (2017) LPELR-41905(SC) AT 17-19(B-A). Based on the foregoing, issue 3 is resolved against the appellants.

Issues 4 and 5 are whether His Lordship is justified in coming to the conclusion that the respondent proved his claim of special damages and whether the award of general damages against the appellants is justified in the circumstances of the case. On these issues, the appellants’ counsel submitted that special damages must be strictly proved with sufficient evidence. He further submitted that unchallenged ipse dixit is not an automatic proof of special damages. He referred to U.B.N PLC V. NWANKWO (2020) 300 LRCN 223 AT 236. He urged the Court to set aside the award of damages as late Mr. Osademe did not state how he came about the monetary value he attached to the items for which special damages was awarded. Counsel argued that having awarded special damages for the damaged crops, award of general damages amount to double compensation.

The respondent in his response submitted that the respondent pleaded the names, the numbers and the market value of the economic trees destroyed by the appellants. The appellants did not debunk those facts in their statement of defence and the evidence was not challenged under cross-examination. He submitted that assessment of the quantum of general damages is at the discretion of the Court and the award would only be altered or varied if it is shown to be manifestly too high or too low which is not the appellants’ complaint here.

RESOLUTION
Trespass is an unwarranted or unjustifiable entry or intrusion by one person upon land in possession of another. It is settled that trespass is actionable per se without proof of actual damage. See AKINTERINWA & ANOR V. OLADUNJOYE (2000) LPELR-358(SC) AT 38-39 (G-A), (2000) 6 NWLR (PT.659) 92, STIRLING CIVIL ENGINEERING (NIG) LTD V. YAHAYA (2005) LPELR-3118(SC) AT 23(E). However, where a claimant has suffered specific loss on account of trespass committed on his land, he is entitled to claim special damages for the loss suffered apart from the general damages for trespass. See NBC PLC V. UBANI (2013) LPELR-21902(SC) AT 31-32 (B-A).

The lower Court at pages 304-305 of the record of appeal held that the appellants having failed to cross-examine late Okoro and CW1 on the number and the value of the particular crops destroyed by the appellants, the Court is entitled to accept and act on the evidence in support of the claim for special damages.

The law requires that special damages must be strictly proved with cogent and credible evidence. In OSHO & ANOR v. FOREIGN FINANCE CORPORATION & ANOR (1991) LPELR-2801(SC) AT 52-53 (G-A), the Supreme Court held that in an action for damages for trespass, special damages must be pleaded and strictly proved, the value pleaded being normally a reflection of the prevailing market prices. In the instant case, the respondent pleaded and adduced evidence through late Osademe Okoro in support of his claim for special damages but failed to state how he came about the amount claimed for each crop. An estimate of the value of each crop is different from the market value of the crop. The submission of the respondent’s counsel that the value is the estimated market value of the crops is not supported by the pleadings or the evidence on record. The submission is an attempt to smuggle in a piece of evidence not before the Court in the guise of a final address. The law is trite that an address no matter how brilliant cannot take the place of evidence.

Unchallenged evidence, without more, can constitute sufficient proof of special damage but a claimant who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible. Claim for special damages based on mere estimates or estimation of the claimant is not precise. See ENEH V. OZOR & ANOR (2016) LPELR-40830 (SC) AT 14-16 (E-A), (2016) 16 NWLR (PT.1538) 219, AJIGBOTOSHO V. RCC (2018) LPELR-44774 (SC) AT 29-30 (D-E). I am of the view that the respondent having failed to plead and adduce evidence of the facts upon which he based the cost of the crops claimed by him, the lower Court wrongly exercised its discretion in awarding the special damages. For this reason, issue 4 is resolved in favour of the appellant. Issue 5 is resolved against the appellant.
The result is that this appeal succeeds in part and in respect of the special damages only. For avoidance of doubt, judgment of the lower Court in respect of title to land, general damages for trespass and order of injunction is hereby affirmed. The award of special damages in the sum of N2,395,000.00 (Two Million, Three Hundred and Ninety-Five Thousand Naira) only as special damages is hereby set aside. Parties shall bear their own costs.

JOSEPH EYO EKANEM, J.C.A.: Where a party relies on traditional history to prove title to land, he is required to plead and prove:
(1) Who founded the land
(2) How he founded the land.
(3) Successive persons to who the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained.
Traditional evidence just like any other evidence is subject to evaluation by the Court. To attract credibility, it must be total in narration. Partial or overtly incomplete or abridged history of past events leaves doubt about the true nature of such history embedded in secrecy. See Osu v. Nwadialo (2009) 12 NWLR (Pt. 1155) 286, 303 – 304, Nwokorobia v. Nwogu (2009) 10 NWLR (Pt. 1150) 553, 573 and Ajibi v. Olaewe (2003) 8 NWLR (Pt. 822) 237, 275 – 276.

The late original claimant’s evidence of traditional history as pleaded and testified to by him satisfied the above requirements. The burden therefore shifted to the appellants to disprove the case of the respondent. What did the appellants offer? Their case was that the land in dispute is a communal land of Ogbeisogbo Community and that the community had been in exclusive possession of the land from time immemorial. This plea vague as it is, is far below the standard required of traditional history. In the case of Adebo v. Omisola (2005) 2 NWLR (Pt. 909) 149, 168, it was held that an averment that a family is the original owner of land does not bring the case within the purview of proof by traditional evidence unless there is evidence that the family has become established owners through an ancestor whose name has always been associated with ownership of the land.

The case of the appellants fell far short of the above standard and so the traditional evidence on the part of the respondent stood alone with no competing story. It was therefore bound to succeed. See Akanbi v. Salawu (2003) 13 NWLR (Pt. 838) 637, 649 – 650.

Since the respondent did not prove special damages by sufficient evidence, the same ought not to have been awarded by the trial Court.

In the light of what I have stated above and the more comprehensive reasons in the lead judgment of my learned brother, BOLAJI-YUSUFF, JCA, I also allow the appeal in part by setting aside the award of the sum of N2,395,000.00 and affirming the decision of the trial Court in respect of the other reliefs.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have the honour of reading before now the judgment just read by my Lord, MISITURA OMODERE BOLAJI-YUSUFF JCA, and I entirely agree with the well thought out reasoning and conclusion therein.

He has covered the field and I have nothing to add.