MR. INOK EDIM MOSES V. MR. NATHANIEL ONU & ANOR (2013)

MR. INOK EDIM MOSES V. MR. NATHANIEL ONU & ANOR

(2013)LCN/6005(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 5th day of March, 2013

CA/C/1/2010

RATIO

LAND LAW: DECLARATION OF TITLE: 5 WAYS OF PROVING TITLE TO LAND

There are indeed five ways of proving title to, or ownership of land.
The Respondent chose to prove his title by:
“Production of documents of title duly authenticated in the sense that their due execution must be proved” Ayoola V. Odofin (1984) 11 SC page 120, Nkado v. Obiano (1997) 5 NWLR pt 503 page 31, Nkwom V. Iboe (1998) 7 NWLR pt 558 page 354, Adesonya v. Aderounmu (2000) 6 SC pt. 11 page 18.
Production of a deed of conveyance or document of title does not automatically entitle a party to a claim in declaration.
Thus, before the production of document of title is admitted as sufficient proof of ownership the court must be satisfied that:
(a) the document is genuine or valid;
(b) it has been duly executed, stamped and registered:
(c) the grantor has the authority and capacity to make the grant;
(d) that the grantor has in fact what he proposes to grant; and
(e) that the grant has the effect claimed by the holder of the instrument.
– Ayorinde v. kuforiji (2007) 4 NWLR (pt. 1024) 341
– Dosunmu vs. Dodo (2002) 13 NWLR (pt. 783) 1
– Romaine v. Romaine (1992) 4 NWLR (pt. 238) 650
– Kyari v. Alkali (2001) FWLR (pt. 60) 1481….PER UZO I. NDUKWE-ANYANWU, J.C.A.

LAND LAW: PAYMENT OF PURCHASE PRICE BY A PARTY FOR A PROPERTY GIVES HIM A RIGHT TO THE PROPERTY
The payment of the purchase price by a party for property automatically confers a right on the party which right is enforceable unless otherwise determined. E. E. P. Co. Ltd v. N.D.I.C (2007) pt 1039 SC page 216.PER UZO I. NDUKWE-ANYANWU, J.C.A.

LAND LAW: HOW TO PROVE PURCHASE OF LAND

A purchase of land can be proved by a purchase receipt or by an agreement of sale, or by any fact that shows such a transaction did take place. Adepate v. Babatunde (2002) 4 NWLR pt 756 page 99.PER UZO I. NDUKWE-ANYANWU, J.C.A.

LAND LAW: REQUIREMENT FOR VALID SALE OF LAND UNDER NATIVE LAW AND CUSTOM

LAND LAW: EQUITABLE INTEREST: HOW A PURCHASER ACQUIRES EQUITABLE INTEREST IN LAND
Where the purchaser of land has paid the purchase price to the vendor, and let into possession, he has acquired on equitable interest in the land. Omaeri v. Yusuf (2004) 1 NWLR pt 855 page 548. PER UZO I. NDUKWE-ANYANWU, J.C.A.

COURTS: WHERE THE COURT OF APPEAL WILL INTERFERE IN THE ACTIVITIES OF THE TRIAL COURT

The Court of Appeal will as a general rule not interfere except in the following instances thus:
(a) Where the trial Court acted under the mistake of law.
(b) Where it acted in disregard of principles.
(c) Where it acted in misapprehension of facts
(d) Where it has taken into account irrelevant matters and disregarded relevant matters.
(e) Where injustice will result if the appellate court did not act.
(f) Where the amount awarded is ridiculously low or ridiculously high that it must have been a whole erroneous estimate of damages.
See Nzeribe V. Ayim (2009) All FWLR part 488 P. 378 at P. 385 held 15
Kotun v. Olasewe (2009) All FWLR. Part 477 P. 41 of P. 4617 held 13 and 14.PER UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

MR. INOK EDIM MOSES Appellant(s)

AND

MR. NATHANIEL ONU
(Suing by attorney)
MISS EVELYN IJOMA ONU Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State sitting in Calabar delivered on 17th June, 2009.
The Respondent as Plaintiff in the Lower Court claimed against the Appellants as Defendant as follows in his amended Statement of Claim:
1. A declaration that the plaintiff is entitled to the Statutory right of Occupancy over all that properties situate of No. 3a Edim Otop close (west), covered by the plaintiffs survey plan No. EUE/OR/2056/95 dated the 5th of June, 1995.
2. Two hundred and Thirty thousand Naira as special damages against the 1st defendant for damaging the plaintiffs building on the said property at 3a Edim Otop close (west).
3. The sum of fifty thousand Naira being the money collected from the plaintiff forcefully and by tricks.
4. Two Million Naira as general damages against the defendants for their trespass on the said No. 3a Edim Otop close (west).
5. A perpetual order of injunction restraining the defendants and their agent, privies and assigns from further invasion of the plaintiff’s privacy.
The head of the family, the 2nd defendant died during the pendency of this suit. The 1st defendant continued with the defence of this suit and is now appealing against the judgment of the trial court.
The Appellant being dissatisfied filed his notice and nine grounds of appeal on 10th August, 2009. The Appellant articulated four issues for determination as follows:
1. THE LEARNED TRIAL JUDGE HAVING DECLARED THE PLAINTIFFS CERTIFICATE OF OCCUPANCY AND THE LEASES UPON WHICH THE CERTIFICATE WAS ISSUED NULL AND VOID, WHETHER HE OUGHT NOT TO HAVE DISMISSED THE CLAIMANTS CLAIM. (GROUNDS 1 & 5)
2. WHETHER THE LOWER COURT HAVING DECLARED NULL AND VOID THE TITLE DEEDS OF THE CLAIMANT, IT WAS CORRECT TO PROCEED TO GRANT AN INJUNCTIVE RELIEF AGAINST THE DEFENDANT FOR TRESPASS AND SPECIAL DAMAGES. (GROUNDS 2, 8 & 9)
3. WHETHER THE RELIANCE ON EXHIBIT U ARBITRATION REPORT BY THE LEARNED TRIAL JUDGE DID NOT OCCASION A MISCARRIAGE OF JUSTICE. (GROUND 6)
4. WHETHER IT WAS APPROPRIATE FOR THE LEARNED TRIAL JUDGE TO COMPARE THREE CONTRADICTORY SIGNATURES AND CONFIRM THAT THEY BELONG TO THE DECEASED FAMILY HEAD OF THE APPELLANT. (GROUNDS 4 & 7).
There being no issue articulated from ground 3, it would be deemed as abandoned. I therefore strike out ground 3, it, being abandoned.
Learned counsel for the appellant Joe Agi SAN submitted that in proof of the Respondent’s claim, for declaration of title to the land, he chose one of the five methods known to law i.e. presentation of documents of title to land. Amongst the documents presented are:
1. Exhibit C – A list of customary presentation
2. Exhibit C1& C2 Two receipt issued by B.S. Njubigbo & Associates issued in 1998.
3. Exhibit D & D1 Receipt issued by Ene-Obong & Sons Enterprises
4. Exhibit G Certificate of Occupancy
5. Exhibit Q Lease Agreement dated 18th July, 1997
6. Exhibit R Lease Agreement dated 18th July, 1977.
Counsel continued to state that Exhibits C, C1, & C2 were tendered to establish the first steps in a contract of sale of land and referred the court to the case of Brossette Manufacturing (Nig) Ltd. V. M/S Ola Illemobola Ltd. (2007) 14 NWLR pt 1053 page 109 per Ogbuagu JSC.
“Now, in the book authority of convincing laws and practice by Barnsley, 1973, Edition at page 4, it is stated that a transfer or sale of an estate in land, is divisible into two distinct stages, namely (1) the contract stage ending with the formation of a binding contract for sale (ii) the conveyance stage acclimating in the legal title vesting in the purchaser by means of the appropriate instrument under seal. As held in the above case – per Uwaifo JSC, it follows that it is only after a binding contract for sale is arrived at, that the need to pursue the procedure for acquiring title will arise”.
The appellant denied that these documents did not come from their deceased family head even though the Respondent insisted they were from their deceased family head.
The Respondent for the second stage tendered 3 conflicting and contradictory leases with a Certificate of Occupancy, namely Exhibits A, Q & R. counsel agreed that the trial Judge rightly found and held at page 112 of the Record of Appeal as follows:
“I see that indeed exhibits C1 and C2 were issued by B.S. Njubigbo & Associates to the claimant. However, it is stated to be for “customary presentation for a plot of land at No. 1A Edim Otop Close”. The Claimant says those receipts were issued to him by Late Chief Ekpenyong as Head of Oyo Family with whom the claimant negotiated for land No. 1A Edim Otop Close. The date on Exhibit C1 is 25th March, 1998, while that on Exhibit C2 is 9th June, 1998 on Exhibit X, it is stated that Late Chief Ekpenyong died on 29th December, 1995. How then could he have issued the claimant with Exhibits C1 and C2 in 1998? That is a physical impossibility … I find and hold that the recipients’ signature on Exhibits C1 and C2 was not that of Late Chief Ene-Obong”.
Also on page 115 of Record of Appeal, the trial Judge continued thus:
“I therefore declare Exhibit Q, the document PW1 said the Certificate of Occupancy was based on, null and void for telling lie about itself. I also declare the Certificate of Occupancy obtained based on Exhibit Q, Exhibit G in these (sic) proceedings, null and void”
Counsel submitted that regrettably the trial Judge placed an unnecessary reliance on Exhibit D & D1 when he held as follows:
“That leaves me with Exhibits D and D1 which I have found are acknowledgments of receipt of monies from the claimant by Late Chief Ene-Obong for two plots of land… That means the claimant paid for the land and was let into possession. Those two acts created an equitable interest in the land in favour of the claimant only defensible by a person who can show a better title to the land”
Counsel submitted that the Respondent started consultations and negotiation for land in 1998 as per Exhibits C1 & C2 and could not have paid for the land in 1995 as per Exhibits D, D1 & F which the trial Judge relied heavily on, to grant the equitable relief which the Respondent did not claim.
Counsel went on to say that the trial Judge found that the claimant was an impulsive liar and so should have discountenanced exhibits D, D1, & F. The trial Judge had earlier held that the lease agreement and the Certificate of Occupancy where both null and void.
Furthermore Counsel submitted that Exhibit D dated 15th July, 1995 stated that the payment is “being amount paid for 50 years on plot negotiation at N400.00 per plot.
Exhibit D1 dated 21st August, 1995, states that the payment is “being balance paid for two plots for 99 years at N400.00 per year”.
What are the discrepancies?
(a) There was no concrete evidence from the face of exhibits C, C1, C2 and D that they referred to more than one plot;
(b) Exhibit D1 suddenly creates impression that two plots were being negotiated or sold;
(c) Exhibit D made reference to a term of 50 years and was not a part payment;
(d) Exhibit D1 suddenly extends the two plots payment to 99 years; lease different from Exhibit D.
(e) A simple arithmetic of the multiplication of N400.00 a plot multiplied by 50 years will amount to N20,000.00 but a further multiplication of N400 now for two plots for 99 years will amount to N39,600.00 and not N59,200.00.
(f) Exhibit D1 appears to be a conclusive transaction in that the rent paid will expire at the end of 99 years but a careful look at Exhibit F relief upon by the learned trial Judge, the rent was revisable every ten years; and
(g) Exhibits D and D1 from the face of it was issued by Eno-Obong & Son Enterprises, and signed by a village head not family head.
These discrepancies and the reliance on the documents rendered the findings of the trial Judge perverse. On top of it all the trial Judge granted the Respondent equitable reliefs not sought by him. See Akinduro V. Alaya (2007) 15 NWLR pt 1057 and what Aderemi JSC held:
“Even if Exhibit 1 were to be regarded as a receipt evidencing payment of money, there is no claim for equitable reliefs by the Plaintiff. The court does not make a practice of granting a relief not sought. There is no leg of the claims for any equitable reliefs; the lower court therefore went beyond the case formulated before it by prompting the Respondent to enforce this right by specific performance when such was not prayed for”
“The court below having rightly held that the Plaintiff /Appellant failed to prove that he was entitled to declaration of title to the land through his freely chosen method of establishing title to land among the five methods known to law-presentation of document of title to land- the lower court, per its majority judgment was in error to have granted an order of perpetual injunction in favour of the Plaintiff/Appellant”
Counsel submitted finally that since the Respondent failed to prove his claim against the Appellant, the trial Judge would have dismissed his claim per Muktar JSC in Odunze V. Nwosu (2007) 13 NWLR pt 1050 page 1.
“The Plaintiff’s did not support their averments with cogent evidence as to entitle them to the land and the order of injunction sought. Where a plaintiff’s claim is not proved to the satisfaction of the court, then the right order to make is a dismissal of the claim by the Court.”
See Kodilinye V. Odu 2 WACA page 336. The trial Judge still went ahead to grant the equitable relief not claimed inspite of S. 21 of the Land Use Act and held as follows:
“To give effect to that equitable interest of the claimant in the two plots of land. I hereby order the 1st defendant as chairman of Oyo/Omonoko family Land committee to cause to be executed an agreement between Oyo/Omonoko family and the claimant based on exhibits D and D1 dated the day final payment for the land was made on exhibit D1, with one month of today failing which the Chief Registrar of this court shall execute the agreement on behalf of the Oyo/Omonoko family. In fine section 39 of the High Court Law Cap. 112 Laws of Cross River State, 2004.”
Counsel relied on the case of Akinyanju V. UNILORIN (2005) 7 NWLR PT 923 PAGE 87, AKINDURO V. Alaya (supra) and urged the court to resolve this issue for the Appellant.
In response, the learned counsel to the Respondent B. Olusegun submitted that the Respondent in his amended statement of claim filed on 23rd December, 2005 claimed inter alia.
“A declaration that the plaintiff is entitled to the statutory right of Occupancy over all that properties situate of No. 3a Edim Otop close west, covered by the plaintiff’s survey plan No. EUE/OR/2056/95 dated 5th June, 1995” (See Page 30 of the record).
This claim was sought because there was a binding contract of sale of land between the parties. Counsel referred the court to Paragraph 4-9 of the amended statement of claim. It reads as follows:
(4) “The Plaintiff aver that in 1995 the family of the defendants known as Oyo family published a public notice signed by their solicitors the firm of Orok Ironbar & Associates of No. 11 Kings Street, Calabar, in which he invited the general public who are interested in the land at Edim Otop to meet with the family head late Chief Edem Ekpo Enebong and other family members for negotiation.
(5) The Plaintiff further avers that his attention was drawn to the public notice by his friend called Mr. Jude Onwudiwe who directed him to Chief Edem Ekpo Enebong, the then head of Oyo family, who during their discussion gave him a photocopy of a Court of Appeal Judgment of 3rd June, 1988 in respect of Omonoko land. All the said document shall be relied upon during trial.
(6) As a result of the said public notice, the plaintiff approached the family head, who with other members of the Oyo family negotiated with him and agreed to lease the portion of land known and called No. 39 Edim Otop close West, Calabar, described and delineated in survey EUE/CR/20056/95.
(7) The plaintiff and his attorney avers that they were taken round the piece of land which covered an area having sand and block which the family members said was abandoned by Mr. Godfrey Asuguo Udo whom plaintiff was asked to compensate for the said portion. The entire area was later sold to the plaintiff by the head of the family and other person who were introduced to then as the principal members and representatives of Oyo family.
(8) The plaintiff avers that he paid the sum of N15, 000.00 to Mr. Godfrey Asuguo Udo of No. 58 Goldie Street, Calabar. An agreement was executed between the parties for which Price Enebong Enebong witnessed for Mr. Godfred Asuquo Udoh.
(9) The plaintiff made a part payment of the sum of N20,000.00 (twenty Thousand Naira) on the 15th July, 1995 for a lease hold for 50 years of the rate of N400.00 per year, he paid the sum of N59,000.00 (Fifty Nine thousand Naira) to complete the lease money for the two plots of land which make up the No. 39 Edim Otop close west, for 99 years lease. The plaintiff also presented to customary rites. The said list shall be relied upon during trial.” See pages 24-26 of the record.
Counsel submitted that in proof of these, the Respondent led oral evidence and tendered documents. Counsel went ahead to state that the Respondent was given a written lease agreement which was used to obtain a Certificate of Occupancy. He argued further that the Respondent’s case was not solely based on the written agreement and Certificate of Occupancy.
Counsel submitted that the Respondent pleaded and testified to the fact that after the preliminary negotiations with the Appellant’s family he paid for two plots Exhibits D and D1 and was put into possession of the land, the subject matter of this appeal. Exhibit E is the survey plan drawn in the name of the Respondent after the sale. The Respondent also built on the said land which the appellant did not dispute. Counsel re-iterated that it is the law that when a person pays for land and obtains a receipt followed by going into possession and remaining in possession, an equitable interest is created See Ogunameh V. Adebayo (2009) All FWLR pt 467 page 188 at page 201.
Counsel submitted that the evaluation of evidence and ascription of probative value to such evidence are the primary functions of a trial court which saw, heard and assessed the witnesses. See Mobil Producing (Nig) Unltd V. Udo (2009) All FWLR pt 482 page 1177, Alokwe V. Ajibade (2004) 17 NWLR pt 902 page 356.
It is only where the trial Judge failed to properly evaluate evidence that the appellate court is mandated to consider the evidence and draw legitimate inferences therefrom. See Mabogunje v. Adewumi (2006) 11 NWLR pt 911 page 224.
The learned trial Judge after evaluating the evidence made the following findings.
a. That exhibits D and D1 were acknowledgements of receipt of monies from the respondent by late chief Enebong for two plots of land of Edim Otop West.
b. That the monies on exhibits D and D1 were paid to late Chief Enebong as family/village head of Omonoko/Oyo family appellant’s family/village .
c. That the respondent took possession of the land and erected building on the same since 1999. (See Para 115 of the record)
Based on the above, the trial Judge held as follows:
That means the claimant paid for the land and was let into possession. Those two Acts created on equitable interest in the land in favour of the claimant only defensible by a person who can show a better title to the land.”
Counsel argued that Exhibits D & D1 did not contradict Exhibits C, C1, & C2. The Respondent paid for the land before he was given a list of items which was tagged consultation and customary presentation.
Counsel also said that the Appellant alleged that there were discrepancies in the number of plots bought and the amount paid. These alleged discrepancies did not derogate from the validity of Exhibits D & D1.
Counsel submitted that the heading of the Exhibits D & D1 is immaterial. If the then head of family Chief Enebong chose to issue a receipt with Ene-obong and Sons Enterprises the Respondent was not in a position to refuse. Counsel argued that there was nothing Perverse in the trial Judge relying on Exhibits D & D1. Learned Counsel argued that the Respondent’s case was not entirely predicated on the leases and the Certificate of Occupancy. Also, that the Respondent proved on the balance of probability that he had a contract for the sale of two plots of land with the Appellant’s family. That is, the Respondent negotiated for, paid for and was let into possession of the land in dispute. Counsel re-iterated that the cases of Akinduro V. Alaya and Odunze V. Nwosu both (supra) cited by the Appellant were distinguishable from the instant case.
Finally, Learned Counsel submitted that the relief granted by the trial Judge was not unclaimed. He re-iterated that the Respondent in his writ of summons and amended statement of claim sought a declaration that he was entitled to a statutory right of Occupancy over the land the subject matter of this appeal. The trial Judge only granted some consequential reliefs to give effect or meaning to the declaration made. Counsel referred the court to S. 39 of the High Court Law Cap 112 Laws of Cross River State 2004, FAAN V. Geeostore Ltd. (2009) All FWLR pt 500 page 741, Bayo V. Njidda (2004) 8 NWLR pt 876 pg 544. Tolani v. Kwara State JSC (2009) All FWLR pt 481 page 880 per Denton-West JCA as follows:
“It is the law even where a person has not specifically asked for a relief from a court, the court has the power to grant such a relief as a consequential relief. A consequential order must be one made giving effect to the Judgment, which it follows.”
Counsel contends that there is enough evidence on which the equitable reliefs granted can be anchored. Facts about Exh. D and D1 were pleaded and proved by the Respondent.
Finally, counsel submits that there are exceptions to the general rule that a court cannot grant a relief not sought. See the case of Essien v. Etukudo (2009) All FWLR pt 496 page 1886 per Omokri JCA (of blessed memory) held thus “Generally, a Court of law must not grant a relief which he has not claimed or sought or to grant a relief which is more than he claims.
Indeed, it is not the function of a court to make a gratuitous award… However, there are exceptions to the general rules. As an exception to the general rule, it is permissible to grant to a plaintiff what he has not specially claimed in his writ if the subsequent order of Court shows that:
(a) The order arose from the evidence adduced in Court; and
(b) The order is incidental to the claim made.
Counsel urged the court to hold that the relief’s granted by the trial Judge were well and validly granted and that the court should resolve this issue in favour of the Respondent.
There are indeed five ways of proving title to, or ownership of land.
The Respondent chose to prove his title by:
“Production of documents of title duly authenticated in the sense that their due execution must be proved” Ayoola V. Odofin (1984) 11 SC page 120, Nkado v. Obiano (1997) 5 NWLR pt 503 page 31, Nkwom V. Iboe (1998) 7 NWLR pt 558 page 354, Adesonya v. Aderounmu (2000) 6 SC pt. 11 page 18.
Production of a deed of conveyance or document of title does not automatically entitle a party to a claim in declaration.
Thus, before the production of document of title is admitted as sufficient proof of ownership the court must be satisfied that:
(a) the document is genuine or valid;
(b) it has been duly executed, stamped and registered:
(c) the grantor has the authority and capacity to make the grant;
(d) that the grantor has in fact what he proposes to grant; and
(e) that the grant has the effect claimed by the holder of the instrument.
– Ayorinde v. kuforiji (2007) 4 NWLR (pt. 1024) 341
– Dosunmu vs. Dodo (2002) 13 NWLR (pt. 783) 1
– Romaine v. Romaine (1992) 4 NWLR (pt. 238) 650
– Kyari v. Alkali (2001) FWLR (pt. 60) 1481
– Dabo v. Abdullahi (2005) 29 WRN 11 (2005) 2 SCNJ 76: (2005) 7 NWLR (pt.923) 181Exhibit Q and Exhibit R were both signed by Chief Edem Ekpo Eneobong who died on 29th December, 1995. Exhibit G is the Certificate of Occupancy of 10th April, 1997 which was issued on the authority of Exhibit Q and R. The trial Judge had this to say about the documents Exhibit G, Q and R.
“I therefore declare Exhibit Q, the document Pw1 said the Certificate of Occupancy was based on, null and void for telling lie about itself. I also declare the Certificate of Occupancy obtained based on Exhibit Q, Exhibit G in these (sic) proceedings, null and void”.
I cannot fault this assessment of these documents. The dates on them are at variance with the transaction they purport to capture. The lessor i.e. Chief Edem Ekpo Eneobong died on 29th December, 1995 whilst the leases were executed on 18th July, 1997 purportedly by him. There is something fraudulent about these documents of title. A dead man cannot sign a document long after his death. Little wonder that the trial Judge declared the three Exhibits G, Q & R as null and void. I also hold that they are null and void ab initio and cannot authenticate this land transaction. Exhibit CI and C II are receipts purportedly issued by Chief Edem Ekpo Eneobong, the village head and lessor. The two receipts (CI) of 25th March, 1998 read thus:
“Customary presentation for a plot of land No 1A Edim Otop Close for N2, 000.00”
C 11 of 9th June, 1998 for completion of customary presentation for a plot of land of Omonoko land, Big Qua Calabar for N5,000.00.
These two receipts of 25th March, 1998 and 9th June, 1998 were supposed to be for customary presentation and completion for a transaction made in 1995.
These two receipts CI and CII were issued by one B. S. Njubigbo Associates after the demise of the lessor, Chief Edem Ekpo Eneobong. On whose authority were these two receipts Exhibit CI & CII issued? These are the findings of the learned trial Judge on the two receipts.
“I see that indeed exhibits C1 and C2 were issued by B.S. Njubigbo & Associates to the Claimant. However, it is stated to be for “customary presentation for a plot of land at No. 1A Edim Otop Close.” The Claimant says those receipts were issued to him by Late Chief Ekpenyong as Head of Oyo family with whom the claimant negotiated for land No. 1A Edim Otop Close. The date on Exhibit C1 is 25th March, 1998, while that on Exhibit C2 is 9th June, 1998 on Exhibit X, it is stated that Late Chief Ekpenyong died on 29th December, 1995. How then could he have issued the claimant with Exhibits C1 and C2 in 1998? That is a physical impossibility … I find and hold that the recipients’ signature on Exhibits C1 and C2 was not that of Late Chief Eneobong”
Nothing can be more apt than the observation of the trial Judge and I also uphold the observation as being correct.
The difficulty in my mind in this appeal is the weight to be placed on Exhibit D & D1. I will refer to the discrepancies itemized by the appellant and deal with them serially.
(1) The learned Appellant’s counsel said that there was no concrete evidence on the face of Exhibit C, C1 and C2 and D that they referred to more than one plot. Without going far, Exhibit C had the list of requirements and of the bottom of the page was written “PER PLOT” This means that these items were for one plot. Exhibits C1 and C2 referred to only one plot. Exhibit C1 for N5, 000.00 was a part payment for one plot whilst C2 was the balance of N2, 000.00 making a total of N7, 000.00 paid for one plot. These three Exhibits C, C1 and C2 only talked about one plot.
Exhibits D of 15th July, 1995 stated as follows:
“amount paid for (50) years on plot negotiation at N400.00 per year N20,000.00.
Exhibit D1 of 21st August, 1995 being “balance paid for two plots for 99 years at N400.00 Per year”.
Total sum N59,200.00. Only Exhibit D1 talked about two plots. However I am inclined to believe that the negotiation started with a plot as evidenced by Exhibit D and metamorphosed into two plots vide Exhibit D1. Doing the arithmetic of two plots for 99 years at N400.00 each i.e. N400 x 2 x 99 = N79, 200. It will be recalled that in Exhibit D the Respondent paid N20,000.00 and a balance of N59, 200.00 in Exhibit “D1” making a total of N79,200.00. The Arithmetic in Exhibit “D” & “D1” add up to show that two plots were paid for. However, C, C1 & C2 were supposed to have been paid before the sale of land Exhibit “D” and “D1”. To the amazement of all, Exhibit C, C1 and C2 were made 3 years after the demise of the family Head and the supposed purchase of the land. Exhibit C1 & C2 were issued by one B.S. Njubigbo and associates with a Makurdi Benue State address. It is unclear the relationship of the maker of these receipts to this transaction.
“The receipts D & D1 were issued by Ene-Obong & Sons Enterprises with the stamp of Omonoko Village Head Big Qua Town Calabar.
The payment of the purchase price by a party for property automatically confers a right on the party which right is enforceable unless otherwise determined. E. E. P. Co. Ltd v. N.D.I.C (2007) pt 1039 SC page 216.

A purchase of land can be proved by a purchase receipt or by an agreement of sale, or by any fact that shows such a transaction did take place. Adepate v. Babatunde (2002) 4 NWLR pt 756 page 99.

Under native law and custom, the requirements for a valid sale of land are the payment of the agreed purchase money by the purchaser and delivery of possession of the land by the vendor to him.
Yusuf v. Mathew (1999) 13 NWLR pt 633 page 30, Adesanya v. Aderounmu (2000) 6 SC pt 11 page 18, Elema v. Akenzua (2000) 6 SC pt III page 26, Afayi v. Jolaosho (2004) 2 NWLR pt 856 page 89. For a receipt to be accepted as proof of sale of land there must be evidence that the sale was in accord once with native law and custom of the area and that the purchaser of the land was put in possession. Adike v. Obiareri (2002) 4 NWLR pt 758 page 537.
Where the purchaser of land has paid the purchase price to the vendor, and let into possession, he has acquired on equitable interest in the land. Omaeri v. Yusuf (2004) 1 NWLR pt 855 page 548. In the instant case, the Respondent had paid for the two plots vide Exhibit D & D1. See paragraph 9 of the Amended Statement of Claim. The Respondent was put into possession by the vendor and family head Chief Edem Etuk Ene-Obong. The Respondent had already taken possession. He caused to be made a survey plan dated 15th August, 1995 Exhibit E.
It is not in issue that the Respondent had already built a standing structure on the land as far back as 1999 where he is living with his family. The Respondent started putting up a second building in 2004 on the disputed land when the Appellants destroyed the building and materials on the land. Exhibit D & D1 are purchase receipts tendered by the Respondent to show, the existence of a transaction between him and late Chief E. E. Ene-Obong. The receipts were headed by the caption. ENE-OBONG & SONS ENTERPRISES.
On each of the receipts there is a stamp with the inscription, Omonoko Village Head Big Town Calabar. It was also signed by Chief E. E. Ene-Obong. The Respondent tendered Exhibit D & D1 without any objection from the Appellants. If the Appellants were disputing, the authenticity of D & D1, the Respondent should have been cross-examined on it during trial. The cross- examination should have been able to show evidence to the contrary. This contrary evidence must be put in to show where, the Respondent should have paid his purchase price. This issue of Exhibit D & D1 should have been contested during pleadings with or without asking for further and better particulars and also during cross examination. When these steps were not taken, Counsel’s address cannot rectify this omission.
Address of counsel no matter how well and persuasive cannot take the place of credible evidence. See Vassileva V.P.M.S. Industries Ltd. (2000) FWLR pt 199 page 392.
It would be recalled that the family head Chief E. E. Ene-Obong put the Respondent into Possession hence he put up a building in 1999. This was not disputed by the Appellant.
Exhibit D & D1 are the purchase receipts given the Respondent upon the payment of a total of N79, 200.00 for two plots of land. It is trite that all the other title documents Exhibit Q, R and G intended to prove the Respondent’s title were held to be null and void. Also Exhibit C1 & C11 were held not to be authentic.
These documents fell short of proving the Respondent’s title to land. However, Exhibit D & D1 the two purchase receipts have shown that the Respondent did infact purchase the two plots, the subject matter of this appeal. These two receipt as held by the trial Judge have thrust on the Respondent an equitable interest in the two plots. See the case of Ogunbambi v. Abowab 13 WACA page 222 where the court held:
“The purchase receipt, being an unregistered instrument, was not admissible to prove title, but was admissible as an acknowledgement of the payment of money and coupled with the plaintiff being in possession, raised a presumption, that he entered into possession under a contract of sale, and from this arose an equitable interest capable of being converted into a legal estate by specific performance.”
…that the land was held by the Oloto family by native law and custom, and thereunder no such thing as written contracts or conveyance are necessary to effect a valid sale. The payment of the purchase money and the delivery of possession to the plaintiff created a valid title by native law and custom”.
The Appellant had argued very strenuously that the Respondent never pleaded equitable interest to the land and that the trial Judge awarded what was not asked for. It is trite law that a court has no power to grant to a party a relief, which he has not sought or which is more than he has claimed. Awoniyi v. AMORC (2000) 6 SC pt 1 page 103 Afrotech Technical Services (Nig) Ltd v. MIA & Sons Ltd (2000) 12 SC pt 2 page 1, Gomwalk v. Okwesa (1999) 1 NWLR pt 586 page 225, Shuaibu v. Muazu (2007) 7 NWLR pt 1033 page 271. The two receipts Exhibits D & D1 were pleaded in paragraph 9 of the amended Statement of Claim. The Appellant’s submission that equitable relief was not pleaded is neither here nor there. The Respondent pleaded the two receipts, gave credible evidence about them, tendered them without objection from the Appellant. The Appellant did not cross-examine the Respondent on the veracity of the receipts. This therefore means that the minimal prove required had been satisfied by the Respondent.
The law is that possession of a receipt by a party for payment for the sale of land and the possession of the land by the party raise equitable interest which may be converted into a legal estate by specific performance. This equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. See Nsiegbe v. Mgbemena (2007) 10 NWLR pt 1042 page 364.

The payment of the purchase price by a party automatically confers a right on the party which right is enforceable unless otherwise determined. E. E. P. Co. Ltd V. NDIC (2007) pt 1039 page 216. A purchase of land can also be proved by a purchase receipt or any other fact which shows that such a transaction did take place. See Adepate v. Babatunde (2002) 4 NWLR pt 756 Page 99. A purchase receipt is evidence that there was an agreement for sale of land, and that the consideration for sale was paid by the purchaser See Aminu V. Odunyebi (2004) 10 NWLR pt. 882 pages 45.
The law reports are replete with cases that show that under native law and custom, the requirements for a valid sale of land are the payment of the agreed purchase price by the purchaser and delivery of possession of the land by the vendor to him. See Comm., L & H, Kwara State v. Atanda (2007) 2 NWLR pt 1018 page 360, Yusuf v. Mathew (1999) 13 NWLR pt 633 page 30, Adesanya v. Aderounmu (2000) 6 SC pt II page 18, Elema v. Akanzua (2000) 6 SC pt III Page 26, Afayi v. Jolaosho (2004) 2 NWLR pt. 856 page 89.
The above is the law and the court will not allow the absence of a valid instrument to be used as an engine of fraud. The court therefore ought to enforce a contract of sale even where the documents have been declared a nullity but there is evidence of an agreement from the facts before the court. See Ogundalu vs. Macjob (2006) 7 NWLR pt 978 page 149.
In the instant case, I make bold to hold that the Respondent acquired an equitable interest in the disputed land as soon as he paid the purchase price and was put into possession. This issue is therefore resolved on behalf of the Respondent against the Appellant.
ISSUE 2:
The learned counsel to the Appellant submitted that the learned trial Judge held that the claimant had no title but proceeded to grant him an equitable relief that was not claimed. Also on the basis of that, awarded the sum of N1m general damages against the Appellant and further restricted him through an injunctive order.
Counsel submitted that title, trespass and injunctive claims were all in issue. See Carrena v. Akinlase (2008) 14 NWLR pt.1107 Page 262; Archibong v. Ita 14 WACA 520; Odukwe v. Ogunbiyi (1998) 8 NWLR Pt.561 Page 339. Furthermore, Counsel argued that it is most inappropriate for the trial Judge to award damages for trespass when the Respondent’s title has not been proved as required by law Odunze v. Nwosu (supra) per Onnoghen JSC held:
“Apart from the unambiguous claim of the respondents for declaration of title, it is settled law that where a plaintiff claims for damages for trespass as in the instant case, his title to the land allegedly trespassed upon is thereby put in issue. In other words, for the plaintiff in such a case to succeed, he must first establish his title to the land in dispute before proceeding to establish possession thereof.”
See also the case of Fasoro v. Beyioru (1988) 2 NWLR pt. 76 page 263 where the Supreme Court held thus:
“Conversely where as in this case, the title pleaded had not been proved, it will be unnecessary to consider acts of possession and the dictum of Ekpo v. Ita (1932) 11 NLR 68 for the acts there became no longer acts of possession but acts of trespass (DA COSTA v. IKOMI (1968) 1 ALL NLR 394 followed”) Counsel submitted that since the Respondent could not prove his title, the award of damages for trespass and injunction was without legal backing. See Attorney General of Abia v. Attorney General of the Federation (2005) 12 NWLR pt 940.
The trial Judge went ahead to award special damages after the award of general damages which was not supported by law. The claim for special damages was pleaded on page 30 of the Record of Appeal but the law is now trite that such special damages must be specifically pleaded with particulars and also lead credible evidence in proof of same. Akinkugbe v. E.H. (Nig) Ltd (2008) 12 NWLR pt 1098 page 375 per Mohammed JSC:
“The rule with regard to the award of special damages is that the burden of proof is on anyone claiming it to prove strictly that he did suffer such special damages claimed. What is required is that the person claiming it should plead its particulars and lead credible and admissible evidence of such character as would establish that he is indeed entitled to an award under that head … The fact that the appellant led no evidence in his defence to the claims does not in any way relieve the plaintiffs/respondents of the burden of strictly proving the claims for special damages as required by law”.
Counsel submitted finally that the claimant did not provide particulars but dumped the unpleaded documents on the court. Counsel urged the court to resolve this issue in favour of the Appellant.
The Respondent’s counsel replied and stated, that the respondent pleaded and led evidence in support of the facts that he made payments for the purchase of the land in issue. That Exhibit D & D1 were evidence of such payment and was on the strength of it let into Possession and he developed the land. The Respondent further pleaded and led evidence that the Appellant interfered with his peaceful enjoyment of the land. The trial Judge on the strength of the foregoing made a finding that the Respondent acquired an equitable interest that must be protected. Based on this, the learned trial Judge therefore granted an order of injunction claimed by the Respondent. Also the learned trial Judge was correct in awarding general damages in favour of the Respondents which is at the discretion of the court. The Court of Appeal will as a general rule not interfere except in the following instances thus:
(a) Where the trial Court acted under the mistake of law.
(b) Where it acted in disregard of principles.
(c) Where it acted in misapprehension of facts
(d) Where it has taken into account irrelevant matters and disregarded relevant matters.
(e) Where injustice will result if the appellate court did not act.
(f) Where the amount awarded is ridiculously low or ridiculously high that it must have been a whole erroneous estimate of damages.
See Nzeribe V. Ayim (2009) All FWLR part 488 P. 378 at P. 385 held 15
Kotun v. Olasewe (2009) All FWLR. Part 477 P. 41 of P. 4617 held 13 and 14.
On the award of special damages counsel stated that the respondent pleaded special damages as held by the trial Judge.
The respondent actually pleaded special damages. That N55, 000.00 was collected by the appellant from him. That the appellant destroyed his building or part thereof (See paragraphs 21, 22, 23, 24 and 25 of the respondent’s amended statement of claim of pages 27 and 28 of the record). The appellant admitted the facts in those paragraphs in paragraphs 10 and 12 of his Own Amended statement of Defence and Counter claim. (See page 32 of the record).
In proof of the cost of the building demolished and the money collected the Respondent tendered exhibits K, L, N, N, and P. these exhibits showed the particulars of the materials used in building the house. The learned Appellant’s counsel saying that the trial Judge examined the documents in the comfort of his chambers was misconceived. See UNILORIN v. Adesina (2009) all ROLR pt 487 page 56.
What was required is that the person claiming should establish his entitlement to the special damages with credible evidence of such a character as would support that he is indeed entitled to an award under that head. See Dare vs. Faybanike (2009) All FWLR pt 489 page 568; UBA Plc v. Eye Gymineral Resources Ltd (2009) All FWLR Pt 486 Page 195; National Oil Chemical Marketing Plc V. Adewusi (2009) All FWLR pt 455 page 1668. Counsel argued that the learned trial Judge explained the basis of the special damages award he made. The documents relied on by the trial Judge were admitted in evidence without objection. See Agbakoba v. INEC (2009) All FWLR pt 462 page 1032.
Counsel therefore urged the court to resolve this issue against the Appellant.
The court in resolving issue 1 held that the Respondent had acquired on equitable interest in the disputed land. The Respondent being in possession has a right to sue. A plaintiff can succeed in a claim for damages for trespass and injunction even where his claim for a declaration of title fails. The court can still maintain and uphold action or claim for trespass and injunction if possession is established Balogun v. Akanji (2005) 10 NWLR pt 933 page 394, Ude v. Chimbo (1998) 12 NWLR pt 577 page 169, Okhuarabo vs. Aigbe (2002) 9 NWLR pt 771 page 29.
The Respondent pleaded the acts of trespass by the Appellant in Paragraph 21 to 25 of the Respondent’s Amended Statement of Claim. The respondent also tendered exhibits K, L, N, N and P. All these were accepted and marked without any objection by the appellant. The Appellant did not cross examine the Respondent as to the veracity of these receipts. There was also no contrary opinion about the prices of the materials so tendered. There was no contradiction by the appellant and as such, the respondent needed minimal proof to prove the items on his list. The court has been called to critically look at the list of items and then assess how the prices or costs were arrived at. That is not for address viva voce or written, it is for cross-examination.
It is the law that special damages have to be specially proved. Specially proving has no special technique outside our daily human experience. The Respondent has tendered his receipts. It is only now left for the appellant to debunk it. Having failed to do so, it would be taken, that the Respondent has proved the damage to the building he was putting up on the land.
The Respondent is entitled to the special damages awarded to him by the trial court. The Respondent is in possession of the land in dispute. The Appellant has also been held to have trespassed on the Respondent’s land. The trial Judge was right in granting an injunctive order restraining the Appellant from further trespass on the Respondent’s land.
The trial Judge had awarded N1m general damages to the Respondent against the appellant. General damages cover all losses which are not capable of exact quantification. It includes all non financial loss. Items of general damages need not and should not be specifically pleaded, but some evidence of such damages is required. There is no fixed rule with which to assess general damages. The matter of general damages is therefore at the discretion of the court to award a fair and reasonable compensation having regard to the circumstances of the particular loss. Okuneye v. Lagos City Council (1973) 2 CCHCJ Page 38. However, the courts are enjoined to exercise this discretion judiciously and judicially. The Appellant has not shown that the trial Judge’s discretion was exercised outrageously nor that the amount is too high. Having not shown that, the appellate court cannot tamper with that award. In respect of cases of trespass to land, the claimant is entitled to be restored as far as possible to the position which existed before the wrongful act was committed by the Appellant. The Respondent is thus entitled to Restitutio in intergrum. In total, the Respondent is entitled to the special and general damages awarded by the trial Judge and also the injunctive order contained in his judgment. I have not been given any reason to add or subtract from it. The orders stand. This issue is also resolved against the Appellant.
ISSUE 3 AND 4
The Learned Counsel to the Appellant had argued that the trial Judge relied heavily on Exhibit U to reach his final decision in this suit. Counsel also stated that the learned trial Judge compared signatures on Exhibit X and that on Exhibit L.
I must state categorically that Exhibit U, X and L did not play any role in the decision of the trial Judge. Any reference to these three Exhibits would not have made any difference whatsoever to the final outcome of this case. The important exhibits to the just determination of this appeal to my mind are Exhibit D & D1. Apart from these two exhibits, the other ones were unnecessary exhibits that don’t add anything to the proof of the suit in the trial court.
These two issues are also resolved against the Appellant.
Having resolved the four issues articulated by the appellant against, him, this Appeal deserves to be dismissed it being unmeritorious.
The Respondent is entitled to the equitable interest in the two plots of land known as No 3a Edim Otop Close (west) covered by the Appellant’s survey plan No. EUE/OR/2056/95 dated the 5th June, 1995. N103, 220.00 for total amount expended in the demolished building. N50, 000.00 being money extorted from Respondent by the Appellant. N1m general damages, N10, 000.00 award as cost by the trial court. The Appellant is also restrained by himself, his thugs, agent’s privies and assigns from further trespassing on the Respondent’s land situate at No 3A Edim Otop Close (West) shown on the survey plan Exhibit E.
N50, 000.00 cost against the Appellant.

MOHAMMED LAWAL GARBA, J.C.A.: My learned brother Uzo I. Ndukwe-Anyanwu, JCA, had availed me of a draft of the lead judgment just delivered, before now. The Respondent’s case before the High Court was for the following relief:-
1. A declaration that the plaintiff is entitled to the statutory right of occupancy over all that properties situate at No. 3a Edim Otop Close (West), covered by the plaintiffs survey plan No. EUE/OR/2056/95 dated the 5th of June, 1995.
2. Two Hundred and Thirty Thousand Naira as special damages against the 1st defendant for damaging the plaintiffs building on the said property at 3a Edim Otop Close (west).
3. The sum of fifty thousand naira being the money collected from the plaintiff forcefully and by tricks.
4. Two million naira as general damages against the defendants for their trespass on the said No. 3a Edim Otop Close (west).
5. A perpetual order of injunction restraining the defendants and their agent, privies and assigns from further invasion of the plaintiff’s privacy.
The law is now firmly established that where a plaintiff in a land case claims for trespass along with claims for declaration of entitlement to the land and injunction against a defendant, title to the land in question automatically becomes an issue to be determined by the court. This is because although the tort of trespass is primarily one against possession, where it is coupled with the claim for injunction and damages, then the claimant is taken to claim to be the owner of the land in question. See Kpanuglo v. Kodadjo 2 WACA, 24; Ogunbiyi v. Adewunmi (1888) 5 NWLR (93) 215; Ogunleye v. Oni (1990) 2 NWLR (135) 745: Adesanya v. Otuewu (1993) 1 SCNJ, 77 at 94; Olohinde v. Adepoju (2000) 6 SCNJ, 470.
In the statement of claim set out in the lead judgment, the Respondent had claimed ownership of the land in question through purchase from the Oyo family, who put in him in possession thereof. As demonstrated in the lead judgment, the Respondent had testified in support of the claim and had tendered in evidence, the receipts issued by the family for the price paid by him, to which there were witnesses. Apparently, the transaction for the sale of the land to the Respondent was customarily done between the parties and there was no dispute at the trial that the Respondent was put into possession after he paid the purchase price. Although the survey plan of the land and the certificate of occupancy obtained by the Respondent were nullified by the High Court, the law is that under customary law, payment of purchase price and taking possession of a piece of land in the presence of witnesses by the purchaser are sufficient evidence of the existence of a contract for sale of land which creates an equitable interest capable of being converted into a legal lease by way of specific performance See Olasunde v. Oladele (1991) 4 NWLR (188) 713; Aminu v. Ogunyobi (2004) 10 NWLR (882): Kachalla v. Banki (2006) 8 NWLR (982) 364; Ogundalu v. Macjob (2006) 7 NWLR (978) 148.
The equitable interest so acquired in the land is as good as a legal interest and can only be defeated by a purchaser of the land for value without prior notice of the interest in equity or a person with a better valid title. See Bucknor-Maclean v. Inhuks (1980) 8 – 11 SC- 1: Obiguru v. Ozims (1985) 2 NWLR (6) 167; Okoye v. Dumez (1985) 1 NWLR (4) 783: Agbabiaka v. Okojie (2004) 15 NWLR (897) 503.
Since the Respondent was and had been in possession of the land in dispute based on the contract of sale under customary law, he had acquired the right to exclusive possession which entitled him to the claim for trespass even if he did not prove his statutory title to the land by the documents he relied on.
Once again, the claim for trespass is rooted in exclusive possession and can be maintained against all except a person who can establish a better title or right of such possession. The claim for trespass is therefore not dependent on the success of a claim for declaration of title and it can be maintained and upheld by a court even where a claim for title is defective or fails. See Ude v. Chimbo (1998) 12 NWLR (577) 169; Okhuarobo v. Aigbe (2002) NWLR (771) 29; Balogun v. Akanji (2005) 10 NWLR (933) 394; Lawal v. Salami (2002) 2 NWLR (702) 687.

In an action for damages for trespass and injunction, it is required that the plaintiff proves exclusive possession and nothing more in order to succeed against a person who cannot show a better title. The question of proof of a plaintiff’s title in such cases becomes necessary only when there is a competing claim for or to possession, since the claims for possession and trespass on the one hand and the claim for title, on the other hand, are quite separate and independent issues. See Oluwi v Eniola (1967) NMLR, 339; Akinterinwa v. Oladunjoye (2000) 6 NWLR (659) 92; Adeniyi v. Onagoruwa (2000) 1 NWLR (639)
Furthermore under the provisions of Section 146 of the Evidence Act 2004 (now section 143 of the 2011 Act) when the question is whether any person is owner of anything which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. Since the Respondent has shown that he has been in possession of the land in dispute when the Appellants interfered with it without justification as they eventually were unable to prove or show better title or right to possession.
The law is trite that trespass is constituted by even the slightest interference with the exclusive possession of land without authority or consent of the person in such possession, by another who cannot show a better title or right to the possession. See Foreign Finance v. L.S.P.D.C. (1991) 5 SCNJ, 52 at 74; Shittu v. Egbeyemi (1996) 6 NWLR (457) 650 at 658 – 9; Adiagbo v. Williams (1998) 2 NWLR (536) 120; Tumo v. Murano (2000) 12 NWLR (681) 370 at 391.
From the record of the evidence placed before the High Court, I am in agreement with the finding that although the Respondent’s proof of title by documents was faulty, he had proved his right to an exclusive possession of the land in dispute and that the Appellants had without authority or consent, interfered with that possession, thereby committing the tort of trespass. Since the Respondent had proved trespass by the Appellant, he was entitled to claim for any special damages suffered by him as a result of or resulting from the acts of trespass committed by the Appellant. The unchallenged evidence of the Respondent on the Special damages suffered from the Appellants acts of trespass to the land in dispute clearly proves such damages specifically on the balance of probability to entitle him in law, to the award for such damages.
Let it be remembered that in law, strict proof of special damages means no more than production of evidence such as would readily lend itself to quantification of the damage suffered. See Osuji v. Isiocha (1989) 3 NWLR (111) 632; NEPA v. Alli (1993) 11 LRCN; 406; Nzeribe V. Dave Eng. (1992) 10 SCNJ, 34; West African Shipping Agency v. Alh. Kaila (1978) 35 at 31.

The law is also known that special damages are distinct from general damages and that in appropriate cases; both may be awarded by a court to a claimant. While special damages consist of items of loss or injury caused by the wrongful acts of the person against whom they are claimed, general damages are such as the law will presume to be the direct or probable consequence of the wrongful act and so a claimant does not in law, have to specifically plead and strictly prove them as is the case with special damages. See Odulaja v. Haddad (1973) 11 SC, 357 at 361 – 2: Odumosu v. A.C.B Ltd. (1976) 11 SC, 55 at 68 – 9; Attorney-General Anambra State v. Omiselogu Enterprise Ltd. (1987) 11-12 SCNJ, 44; Osho v. Foreign Finance Corp. (1991) 4 NWLR (184) 157.

It is the primary duty and function of a trial court in its evaluation of the evidence adduced before by a successful party, to assess the quantum of the general damages that should be awarded in the peculiar circumstances of a case.

Where a trial court has properly assessed the measure of general damages and made an award, the attitude of the appellate court is that unless that court was shown to have proceeded upon misconception or error of the principles of law which makes the award manifestly too large or too small, they do not interfere with the award.
The West African Court of Appeal in the famous Nigerian case of Zik’s Press Ltd. V. Alvan Ikoku (1951) 13 WACA, 188 at 189 had stated the attitude of appellate courts to the award of damages by trial courts thus:-
“But it is equally clear that the appellate courts are very reluctant to exercise this power and to attempt to re-assess the amount of damages which the trial judge has given, and that they will never do so unless it can be established that at the trial the judge proceeded upon a wrong principle of law or that his award was clearly an erroneous estimate, since the amount was manifestly too large or too small.”
See also Obere v. Board of Management, Eku Baptist Hosp. (1978) 6 & 7 SC, 15 at 24; H. H. Uyo 1 v. N.N. Press Ltd. (1974) 6 SC, 103 at 105; Strabag Const. Nigerian Ltd. v. Ogarekpe (1991) 1 NWLR (170) 733. I am in agreement that the Appellant has not demonstrated in this appeal that the award by the High Court of general damages to the Respondent was erroneous in law to warrant an interference by this court with the award.
Having strictly proved the special damages by unchallenged evidence adduced before the High Court, the Respondent was entitled to the award made by the High court for special damages.
Lastly, having proved his equitable interest in the land in dispute and the trespass thereon by the Appellant, the High Court was right in the order of injunction to protect the interest against wrongful or even unlawful interference from the Appellant who was unable to prove better right or title. The injunctive order was a necessary consequence of the finding by the High Court on the equitable interest of the Respondent and trespass by the Appellant. See Amakor v. Obiefuna (1974) 3 SC 67; Fabunmi v. Agbe (1985) 1 NWLR (2) 299; Yusuf v. Kemisi (cited in the lead judgment).
It is for the above and more pungent reasons set out in the lead judgment that I too find no merit in the appeal which I join in dismissing. I adopt the order on costs.

JOSEPH TINE TUR, J.C.A.: I have read an advance copy of the judgment delivered by Uzo I. Ndukwe-Anyanwu, JCA. I am also of the opinion that this appeal should be dismissed and the judgment of the lower Court affirmed. I shall add the following general comments of mine for the sake of emphasis.
Paragraph 3 of the Amended Statement of Claim pleads the location and the property in dispute as follows:
“3. The property in dispute which is well known to the parties is situate at No.3A Edim Otop Close (West) Calabar and is particularly delineated in survey plan No. EUE/R/2056/95 hereby pleaded.”
In paragraph 1 of the Amended Statement of Defence the following facts were pleaded:
“1. The Defendants admit paragraphs 1, 2, 3, and 4 of the amended statement of Claim.”
What is admitted needs no further proof. See Antony v. Ayi II & ors. (2004) All FWLR (pt.227) 444 at 482 and Elendu v. Ekwoaba (1995) 3 NWLR (pt.386) 704/747.The onus of proving the identity and location of the land in dispute, namely, No.3A Edim Otop Close (West) Calabar was discharged on the pleadings by the Respondent. This is because no one sets out to prove that which had not been denied by the opposing party. See Olale v. Ekwelendu (1989) 7 SCNJ (pt.2) 62 at p.102.
From paragraphs 4 to 16 of the Amended statement of Claim, the Respondent pleaded facts showing how he entered into the lease agreement with Chief Edem Ekpo Ene-Obong the then Head of Oyo Family and how they took him round the land in dispute. There he saw sand and blocks said to belong to one Geoffrey Asuquo Udoh. The Respondent was directed to compensate him. The respondent did so by paying Geoffrey Asuquo Udoh of No.58 Goldie Street, Calabar, the sum of N15, 000.00. That an agreement executed between the Respondent and Mr. Geoffrey Asuquo Udoh was witnessed by prince Ene-Obong Ene-Obong. Thereafter the Respondent made part payment of N20, 000.00 on 15th July, 1995 and N59, 000.00 on 21st August, 1995 to complete the lease for two plots of land which constitutes No.3A Edim Otop Close (West) Calabar for a term of 99 years. The Respondent presented to the family all the items listed as traditional customary rites which totalled of N7,000.00. The Respondent pleaded the receipts evidencing these payments. Thereafter the Respondent surveyed the land and was given a certificate of occupancy by Chief Edem Ekpo Ene-Obong. The Respondent further obtained a fencing permit and an approved building plan from Calabar Development Authority. Paragraph 17 of the Amended Statement of Claim pleads what the Respondent did thereafter:
“17. The plaintiff avers that he erected building on a portion of the land in 1999 while in 2004 he mandated his attorney to oversee the building of another structure which was still under construction when the new family head set up a Lands Committee to look into acquisition of land at Owonoko area which comprises of the Edim Otop area.”
In the amended statement of defence/counter-claim the following facts are pleaded:
“2. The defendants deny vehemently paragraphs 5 to 34 of the amended statement of claim and shall demand strict proof at the hearing of this suit.
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9. The defendant in answer to paragraphs 15, 16 and 17 of the amended statement of claim aver that their family head does not issue or give certificates of occupancy to their tenants and that any building or approval obtains on the land without title is the business of the plaintiff.”
The pleadings of the Respondent in paragraph 17 of the Amended Statement of Claim that in 1999 the Respondent erected a building on a portion of the land in dispute and in 2004 he sought to erect a structure on the undeveloped portion of the same land when the dispute arose was not denied by the appellants in their Amended pleadings. What is not denied needs no further proof. In such a case judgment can be had on the pleadings. See Akintola v. Solano (1986) 2 NWLR (pt.24) 598 at 620.
The Respondent sought the following reliefs against the appellants in the court below to wit:
“34. The defendants are still threatening taking further actions against us and have make life very unbearable for the plaintiff and his family.
WHEREOF THE PLAINTIFF CLAIMS AGAINST THE DEFENDANTS JOINTLY AND SEVERELY AS FOLLOWS:
(1) A declaration that the plaintiff is entitled to the statutory right of occupancy over all that properties situate at No.3A Edim Otop Close (West), covered by the plaintiff’s survey plan No. EUE/CR/2056/95 dated the 5th of June, 1995.
(2) A Two Hundred and Thirty Thousand Naira as special damages against the 1st defendant for damaging the plaintiff’s building on the said property at 3A Edim Otop Close (west).
(3) The sum of Fifty Thousand Naira being the money collected from the plaintiff forcefully and by tricks.
(4) Two million Naira as general damages against the defendants for their trespass on the said No.3A Edim Otop Close (West).
(5) A perpetual order of injunction restraining the defendants and their agents, privies and assigns from further invasion of the plaintiff’s privacy.”
The appellants pleaded in their Amended statement of Defence/Counter Claim as follows:
“12. The defendants in answer to paragraphs 30, 31 and 32 of the amended statement of claim aver that the family head and the principal members of the family directed the demolition of the plaintiff’s property as he was trespassing on family property without the permission of the family and no thug was taken there.
Francis Imona who is named as a principal member of the family was removed for printing take family receipt and deceiving tenants with same one of such receipts which led to his being arrested by police is hereby pleaded.
(13) In answer to paragraphs 33 and 34 the Defendants aver that there is no crisis in Oyo family over Omonoko land and the family is bent on resisting all trespassers including the plaintiff.
(14) The Defendants shall at the trial ask that the plaintiff’s claim be dismissed with substantial cost.
COUNTER CLAIM
(15) The Defendants aver that the Agreement allegedly entered into between the Defendants’ deceased family Head Chief Edem Ekpo Ene-Obong and the Plaintiff is invalid.
PARTICULARS OF INVALIDITY:
(a) The Agreement is dated 18th July, 1977 but the one pleaded by the plaintiff is allegedly dated 18th, 1997, a certified true copy of the Agreement from Lands Registry is hereby pleaded.
(b) The signature of the family Head as lessor is at variance with the signatures on the receipts pleaded by the plaintiff.
(c) Payments were allegedly made in 1995 but the agreement was entered in 1977 and 1997. The plaintiff is hereby given notice to produce the Land Agreement pleaded in his statement of claim.
(d) The survey plan was drawn in 1995 before the sale or lease agreement.
(e) The Agreement between the plaintiff and Geoffrey A. Udoh was entered into on 5th August, 1993 over land purchased in 1977 or 1997. The agreement is hereby pleaded and notice is hereby given to the plaintiff to produce the agreement.
(f) The deceased family Head died on the 29th December, 1995 and so could not have signed an agreement in 1997. The program for his funeral is hereby pleaded and this fact was also communicated to the Court of Appeal, Enugu in suit No. CA/E/1366/95 wherein he was a party.
(g) None of the principal members of the Oyo family signed or witnessed the alleged sale.
(16) The Defendants aver that the Certificate of occupancy in CA/5153/96 dated 10th April, 1997 and registered as No.88 at page 88 in volume 38 Land Registry Office, Calabar covering an approximate area of 1105.917 square meters at Edim Otop Close, Calabar was issued to the plaintiff based on a defective root of title as shown on paragraph 15. The plaintiff is given notice to produce the Certificate of Occupancy at the trial.
(17) The Defendants state that the said Certificate of Occupancy issued in the name of the plaintiff does not confer title on him and so has no valid or enforceable title over the land in dispute.
(18) The Defendants aver that the plaintiff is a trespasser.
(19) The Defendant counter-claim as follows:
(a) A declaration that the plaintiff is not the owner or has title to all that piece or parcel of land measuring approximately 1105.977 square meters and covered by Certificate of Occupancy No. CA/5153/96 dated 10th April, 1997 and registered as No.38 at page 88 in volume 38 Land Registry Office, Calabar lying and situate at 3A Edim Otop Close (West) Calabar.
(b) An order voiding the agreement dated 18th July, 1977 and or dated 18th July, 1997 purportedly entered into between the plaintiff and the defendants’ family head.
(c) An order canceling the Certificate of occupancy No.CA/5153/96 dated 10th April, 1997 and registered as No.88 at page 88 in volume 38 Land Registry Office, Calabar covering an area of 1105.917 square meters lying and situate at Edim Otop Street, Calabar issued based on a fake lease agreement.
(d) The sum of N5 million (Five Million Naira) damages for trespass.”
From the above pleadings it can be seen that the appellants admit that the Respondent was in possession of No.3A Edim Otop close (west), Calabar even if based on a defective or fake title. Secondly, that the demolition of the Respondent’s property on the land was directed by the family head and principal members of the family as they claim he was trespassing without their permission. That they shall resist all trespassers including the plaintiff.
In Adeshoye v. Shiwoniku (1952) 14 WACA 86 where the title of the person in possession was defective, the Court held at page 87 as follows:
“…once it became clear that the grantors had purported, as they did, to convey a title which they did not possess, the Respondent being in possession of the land could successfully maintain an action for trespass against the appellant.
It follows that in my view this appeal should be dismissed with cost.”
See also Ikpang v. Edoho (1978) 2 LRN 29 at 53; Udeze v. Chidebe (1990) 1 TWLR (Pt.1) 1 at 29; Adegbola v. Obalaja (1978) 2 LRN 164 at 170 and Lawal v. Ijale (1967) NMLR 155 at 157.
The Respondent also claimed declaration of a statutory right of occupancy over all the properties situate at No.3A Edim Otop Close (West) Calabar, general and specific damages coupled with injunctive reliefs against the appellant. Title was put in issue. See Okorie vs. Udom (1960) 5 FSC 162 at 165; Bornu Holdings Co. v. Bogoco (1971) 1 All NLR 324 at 528. Proof of ownership is prima facie proof of possession. See Badejo v. Sawe (1984) 6 SC 350 at 353. Possession is 1/10th of title. See Adesanya v. Oluewu (1995) 1 SCNJ 77 at 114 and Aromire v. Awoyemi (1972) 2 SC 1 at 10. The learned trial Judge rejected Exhibits “C1”, “C2”, “C5” and “Q” for reasons which are unassailable. Nevertheless His Lordship held at page 115 lines 14 to page 117 lines 1-2 of the printed record as follows:
“That leaves me with Exhibits “D” and “D1” which I have found are acknowledgements of receipt of monies from the claimant by late Chief Enebong for two plots of land.
I have held that the monies on Exhibit ‘D’ and “D1” were paid to late Chief Enebong as family/village Head of Omonoko/Oyo family. On Exhibit ‘F’ the lessor leased the land as Head of Oyo family.
Pw1 say her father, the claimant, erected a building on the land in 1999 where he lives with his family and started another building on the land in 2004, all before the 1st defendant went to demolish the claimant’s second building on the land. That means the claimant paid for the land and was let into possession. Those two acts created an equitable interest in the land in favour of the claimant only defensible by a person who can show a better title to the land. The evidence shows that Oyo family lost their legal estate/interest in the two plots of land when the Head of the family, late Chief Enebong, received money for the land from the claimant and claimant went into possession. Claimant did not take possession of the land stealthily; he built and lives on the land. The law is that sale of family property by the Head of the family is valid until set aside by an aggrieved family member. No evidence was placed before me as to who were the principal members of Oyo family at the time the Head of the family leased the land to the claimant. I may point out in passing here that this is not an action to set aside the lease of the land to the claimant for non consultation of the family Head with members of the family before making the lease to the claimant.
To give effect to that equitable interest of the claimant in the two plots of land I hereby order the 1st defendant as claimant of Oyo/Omonoko family land Committee to cause to be executed an agreement between Oyo/Omonoko family and the claimant based on Exhibit “D” and “D1”, dated the day final payment for the land was made on Exhibit “D1″, within one month of today failing which the Chief Registrar of this Court shall execute the agreement on behalf of the Oyo/Omonoko family in line with Section 39 of the High Court Law Cap.112 Laws of Cross River State, 2004.”
In Folarin v. Durojaiye (1988) 2 SCNJ (Pt.2) 212 at 223 lines 15-22 Obaseki, JSC held that:
“…If a person sells his land to another and fails to put the person in possession, he retains possession. The payment of money by the other person and receipt of money by the owner does not per se amount to a transfer of possession to the purchaser. There must be either a conveyance executed in his favour or an entry into possession to clothe him with legal title in the 1st instance and equitable title in the 2nd instance.”
Again in Okonkwo v. Okolo (1988) 5 SCNJ 128 the Supreme Court held at pages 144-145 that:
“It is now well settled that payment of purchase price and delivery of possession are sufficient to effect a valid sale and a valid title by native law and custom. See Akingbade v. Elemosho (1964) 7 All NLR 154.”
See also Cole v. Folami (1956) 1 FSC 66 at 68 and Erinosho v. Owokorin (1965) NMLR 479. None of the appellants challenged the Respondent when he went into possession and erected buildings in 1999 till when the Respondent wanted to erect structures on the undeveloped portion of the same land in the year 2004. I am of the firm view that the learned trial Judge was right in law and in equity to have concluded thus:
“Having held that Oyo Family had no more title/interest in a land it had collected money from the claimant and let the claimant into possession, the demolition of the claimant’s building thereon by the 1st defendant amounted to trespass…”
See page 121 lines 16-19 of the printed record.
For these and the fuller reasons adumbrated in the lead judgment, I also dismiss this appeal. I abide by the orders made by my Lord.