OGUNTADE & ANOR v. OGUN (2021)

OGUNTADE & ANOR v. OGUN

(2021)LCN/15491(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, January 22, 2021

CA/IB/173/2011

RATIO

CLAIM FOR TRESPASS AND INJUNCTION: RELEVANCE OF AN ORDER OF INJUNCTION

On the order of perpetual injunction made, it is trite that once trespass has been proved, an order of injunction becomes necessary to restrain further trespass. See ADEGBITE VS. OGUNFAOLU (1990) 4 NWLR (PT. 146) 578; BABATOLA VS. ALADEJANA (2001) FWLR (PT. 61) 1670 and ANYANWU VS. UZOWUAKA (2009) ALL FWLR (PT. 499) PG. 411. I find the order of perpetual injunction made by the lower Court in order and affirm same. PER FOLASADE AYODEJI OJO, J.C.A.

DAMAGES: CONSTITUENTS OF A STRICT PROOF OF SPECIAL DAMAGES

What then constitutes strict proof of special damages? There is no general rule as to what amount to strict proof. All that is required is proof to the satisfaction of the Court. It is not in all cases that documents or receipts of purchase are required to prove the items claimed under special damages. While shedding light on what constitutes strict proof of special damages, the Supreme Court per Tobi JSC held in the case of G.F.K. INVESTMENT NIGERIA LIMITED VS. NIGERIAN TELECOMMUNICATIONS PLC (2009) 15 NWLR (PT. 1164) 344 AT 371 – 372 PARAS H – C, as follows:
“It is elementary law that special damages, unlike general damages must be proved to the hilt. Damages being special must be specially proved to the satisfaction of the Court. Although, it is most desirable to prove special damages by the production of receipts and the like, failure on the part of the Plaintiff to do so in certain circumstances will not defeat the claim of special damages. This is because there are certain trades or transactions that do not readily give rise to issuance of receipts and Court of law should not insist on receipts in such cases. Where the law insists on the production of receipts in all claims of special damages, the law will be unwittingly promoting the offence of forgery because a party who has no receipt will be tempted to forge one. That is not good in the administration of justice.” PER FOLASADE AYODEJI OJO, J.C.A.

DUTY OF COURT: WHETHER AN APPELLATE COURT MAY INTERFERE WITH A FINDING MADE BY A TRIAL COURT

It is a settled principle of law that an Appellate Court will not interfere with a finding made by a trial Court based on credibility of witnesses except where the Court has not fully utilized the advantage of seeing and hearing the witnesses. In fact, an Appellate Court must be very reluctant to differ from such findings. See EYA VS. OLOPADE (2011) 11 NWLR (PT. 1259) 505; SOGUNRO VS. YEKU (2017) 9 NWLR (PT. 1570) 290; OMOTAYO VS. COOPERATIVE SUPPLY ASSOCIATION (2010) 16 NWLR (PT. 1218) 1. PER FOLASADE AYODEJI OJO, J.C.A.

TITLE TO LAND: PRESUMPTION OF POSSESSION

The law is settled that once title is proved, the person who proves such title to the land is presumed to be in lawful possession. See AIYEOLA VS. PEDRO (2014) 13 NWLR (PT.1424) 409; APENA VS. AILERU (2014) 14 NWLR (PT. 1426) 111; OKOKO VS. DAKOLO (2006) 14 NWLR (PT. 1000) 401 AND OLOHUNDE VS. ADEYOJU (2000) 10 NWLR (PT. 676) 562. It follows therefore that, the Respondent who has proved title to the land is presumed to be in lawful possession and I so hold. PER FOLASADE AYODEJI OJO, J.C.A.

TORT OF TRESPASS: BURDEN OF PROOF

It is further the law that in an action for the tort of trespass, the Claimant has a duty to show that the Defendant wronged him by violating his right. He has the onus to prove by preponderance of evidence that the Defendant made an unlawful or unauthorised entry into the land in his possession.

See ORIORO VS. OSAIN (2012) 16 NWLR (PT. 1327) 560; GEGE VS. NANDE (2006) 10 NWLR (PT. 988) 256 and DAKAT VS. DASHE (1997) 12 NWLR (PT. 531) 46. PER FOLASADE AYODEJI OJO, J.C.A.

WORDS AND PHRASES: TRESPASS AND POSSESSION

Now, trespass is an unlawful interference with one’s person, property or rights. It is a wrongful entry into a piece of land in actual or constructive possession of another. It is significant to note that the law relating to trespass is to protect the possession and it therefore follows that, a claimant in an action for trespass has the onerous task to prove he was in exclusive possession of the land prior to the trespass or that he has a right to possession. See ANYANWU VS. UZOWUAKA (2009) 13 NWLR (PT. 1159) 445; OLUBODUN VS. LAWAL (2008) 17 NWLR (PT. 111) 1; FAGUNWA VS. ADIBI (2004) 17 NWLR (PT. 903) 544; AJERO VS. UGORJI (1999) 10 NWLR (PT. 621) 1.
In TUKURU VS. SABI (2013) 10 NWLR (PT. 1363) 442 AT 461 PARA. H., the Supreme Court per Ngwuta JSC held as follows:
“Trespass to land is an unjustified interference or intrusion with exclusive possession of land – See OGUNBIYI VS. ADEWUNMI (1988) 5 NWLR (PT. 93) 215; ONAGORUWA VS. ADENIJI (1993) 5 NWLR (PT. 293) 350. If the defendant placed a part of his foot on the Plaintiff’s land unlawfully, it is in law as much a trespass as if he had walked half a mile on it”.

It is also well settled that, trespass is an injury to the right of possession and that a person in possession can maintain an action in trespass against anyone but the true owner of the land or anyone who can trace his title to the latter.

What then is possession of land? Possession means the occupation or physical control of the land either personally or through an agent or servant. In order to establish possession a claimant shall prove acts which may include cultivation of the piece of land, erection of a building or a fence and demarcation of the land with pegs at its corners. See SALAMI VS. LAWAL (2008) 14 NWLR (PT. 1168) 546; THOMPSON VS. AROWOLO (2003) 7 NWLR (PT. 818) 163; NIGERIAN TELECOMMUNICATIONS PLC. VS. ROCKONOH PROPERTY COMPANY LTD. (1995) 2 NWLR (PT. 378) 473 and BURAIMOH VS. BAMGBOSE (1989) 3 NWLR (PT. 109) 352. PER FOLASADE AYODEJI OJO, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

1. ADISA OGUNTADE 2. ALHAJI AKEEM AWOJOBI APPELANT(S)

And

1. MOSES OLAKUNLE OGUN (Substituted Pursuant To The Order Of The Honourable Court On The 5th Day Of February 2019) RESPONDENT(S)

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ogun State High Court of Justice, Ota Judicial Division in Suit No. HCT/83/2004 between:
CHIEF EDWIN ADISA OGUN AND
1. ADISA OGUNTADE 2. ALHAJI AKEEM AWOJOBI delivered on 20th December, 2010.

The suit was instituted by the Respondent as Plaintiff vide a writ of summons filed on the 19th of March, 2004 which was subsequently amended.

In paragraph 31 of the Amended Statement of Claim filed on the 22nd of April, 2005, the Respondent as Plaintiff sought the following reliefs:
“31. The Plaintiff avers that by the action of the Defendants they have made the Plaintiff suffer untold hardship.
Whereof the Plaintiff claims as follows:
1. Two million Naira (N2,000,000.00) being special and general damages for trespass committed by the Defendants when they unlawfully entered the Plaintiff’s land situate, lying and being at ORENTE AREA, along UNITAD Road, Off Abeokuta-Lagos Road, Sango Otta, Ogun State measuring approximately 2.670 Hectares as covered by a dispute Plan No. ALS/OG58/03 dated 19/07/03 and committed acts of trespass thereon.

Perpetual Injunction restraining the Defendants by themselves, their servants and privies from committing further acts of trespass on Plaintiff’s land situate lying and being at ORENTE Area along UNITAD Road, off Abeokuta – Lagos Road, Sango-Ota, Ogun State measuring approximately 2.670 Hectares as covered by a dispute Plan No. ALS/OG 58/93 dated 19/07/03.A brief summary of the Respondent’s case is that sometimes in 1993 he bought the disputed parcel of land from Chief Adetunji Fadayiro, Solicitor and Senior Advocate of Nigeria under Yoruba Native Law and Custom. He was put in physical possession after the boundaries were shown to him in the presence of witnesses. He claimed to have been in lawful and peaceful possession of the land until sometime in November, 2003 when the Appellants and their thugs came to disturb him. He erected a wall fence round the land and put four gates to secure it after the purchase.
It is further his case that, he put a tenant on the land who farmed on it and that when the Appellants came to disturb his peaceful possession he provided them with information of how he came to the land. He showed them the receipts issued to him by his vendor and the certificate of occupancy granted him but they (the Appellants) did not desist from further disturbing his quiet enjoyment of the land. It is further the Respondent’s case that the Appellants came with thugs to pull down his fence and removed the iron gates he erected. The case was reported to the police. It is against this background that the Respondent instituted the action before the lower Court.

The case of the Appellants who counterclaimed at the lower Court is that the disputed land is part of a vast area of land founded by their ancestors, Ige and Owolabi. They narrated the genealogy and averred that they inherited the vast area of land including that in dispute from their ancestors.

They claim to have tenants who paid annual customary tribute otherwise known as Ishakole to their family on the vast area of land. It is further the case of the Appellants that their family did not sell any land to the Respondent’s vendor and that the documents presented by the Respondent as proof of ownership are forged.

The Appellants at paragraph of 4 of their counterclaim sought the following reliefs:
“4. Whereof the Defendants counterclaim as follows:
i. A Declaration that the Defendants are the persons entitled to statutory right of occupancy in respect of all that land situate lying and being at EKUMENE VILLAGE OTTA OGUN STATE edged Red on Survey Plan No. OGE/22/76 drawn by Chief Akin Ogunbiyi.
ii. An Order setting aside and/or nullifying the Certificate of Occupancy No. 020889 dated 21st April, 1995 registered as No. 76 page 76 in Vol. 507 at Land Registry, Abeokuta.
iii. N100,000.00 being damages for trespass committed by the Plaintiff on the aforesaid land.
iv. Perpetual injunction restraining the Plaintiff, his servants, agents, privies or howsoever called from committing further acts of trespass on the Defendants’ aforesaid land.

The case proceeded to hearing. At the trial, the Respondent as Plaintiff, testified on his own behalf and called three witnesses. The 2nd Appellant gave evidence on behalf of himself and the 1st Appellant and called two other witnesses. At the close of evidence, written addresses were filed and exchanged by parties and adopted by respective counsel.

In a considered judgment delivered on the 20th of December, 2010, the trial Judge upheld the claim of the Respondent and entered judgment in his favour. He held at page 174 of the Record as follows:
“In my view, the defendants who were youngsters when their elders sold the land in dispute are merely trying to have a second bite at a cherry long fully eaten by their fathers. Unfortunately, the law will not allow them to do so. Exhibit A, the CTC of the Certificate of Occupancy obtained by the claimant based on the title he obtained from PW4 – Chief Fadayiro was lawfully and validly obtained and cannot be set aside. I find no merit whatsoever in the counterclaim. Issue 3 is therefore resolved against the defendants.
In conclusion therefore, I make the following orders:
1) Damages in the sum of N1.5 million comprising of Special Damages of N1.1 million and N400,000:00 general damages) is awarded against the defendants in favour of the claimant for trespass committed by the defendants against the land of the claimant situate, lying and being at ORENTE Area, along UNITAD Road, off Abeokuta-Lagos Road, Sango Ota, Ogun State measuring approximately 2.670 hectares more particularly described in dispute Plan No. ALS/OG.58/93 dated 19th July, 2003.
2) An Order of perpetual injunction is hereby granted restraining the defendants by themselves, their servants, agents and privies from committing further acts of trespass on the claimants land, situate, lying and being at ORENTE Area, along UNITAD Road, off Abeokuta-Lagos Road, Sango Ota, Ogun State measuring approximately 2.670 hectares more particularly described in dispute Plan No. ALS/OG.58/93 dated 19th July 2003.
3) The counterclaim of the defendants is hereby dismissed.

The trial Judge in his judgment made the following specific findings:
1. The allegation made by the Appellants that the document evidencing title of the Respondent’s vendor was forged was not proved.
2. The Purchase Agreement dated 10/12/77 relied upon by the Appellants was never tendered in evidence therefore the presumption of withholding evidence contrary to Section 149 (d) of the Evidence Act would apply.
3. PW4 validly transferred his title which he obtained from the defendants’ family in 1981 to the Plaintiff in 1983.

4. The evidence of the Plaintiff witness that it was the defendants that brought things to destroy the improvements on the land was more credible than that of the defendants.

Dissatisfied with the judgment the Appellants filed a notice of appeal with three grounds on the 18th of February, 2011. See pages 176-177 of the record. The record of appeal transmitted on 5th July, 2011 was deemed as properly transmitted on 29th of January, 2020.

Parties filed and exchanged briefs of argument. The extant briefs of argument of parties and on which this appeal was argued are as follows:
1) Appellants Brief of Argument filed on 11th of February, 2020.
2) Amended Respondents Brief of Argument filed on 21st February, 2020.

At the hearing of this appeal on 16th November, 2020, learned counsel to the Appellants, Otunba Olumide Akinbinu adopted the Appellants’ brief of Argument and relied on same in urging us to allow the appeal. Learned counsel to the Respondent, Abiodun O. Adebayo Esq. adopted the Amended Respondent’s Brief of Argument and urged us to dismiss the appeal. Learned counsel to the Appellant nominated the following two issues for determination in the Appellants’ brief of Argument:
1) Whether or not there are sufficient evidence before the Court to establish the finding of trespass against the Appellants in respect of the land in dispute.
2) Whether or not special damages has been proved by the Respondent as required by law to warrant the award of the sum of N1,100,000:00 (One Million, One Hundred Thousand Naira) against the Appellants.

For his part, learned counsel to the Respondents in the brief of Argument filed on his behalf adopted the two (2) issues formulated on behalf of the Appellants and argued them in the brief.

I find the two issues formulated on behalf of the Appellants apt, and shall determine this appeal on them. I shall however consider the two issues together.

Learned counsel to the Appellant in arguing the first issue referred us to the findings of the learned trial Judge at page 173 of the Record, the evidence of D.W.1 at page 150 of the Record and urged us to hold that the finding of the trial Court that the evidence adduced by the Respondent and his witnesses on how the Appellants and their thugs destroyed the fence and removed the gates was not dented under cross examination is perverse. He submitted that the said finding is not supported by the evidence on record and should be set aside.

He further reiterated the well settled position of law that trespass to land arises where there is unjustified interference with land in possession of another person to submit that the findings made by the learned trial Judge that the Appellants committed trespass is perverse. He argued that the case of the Respondent where proved would amount to trespass to person and not trespass to land. He relied on the case of CHIEF D.S. YARO VS. AREWA CONSTRUCTION LTD. & ORS. (2008) ALL FWLR (PT. 400) 603 in support of his argument and urged us to set aside the finding of the lower Court on trespass.

On issue No. 2, learned counsel to the Appellants contended that there is no evidence on record to justify the award of special damage made in favour of the Respondent.

He submitted that the Respondent did not prove he was entitled to special damages which the law requires must be strictly proved. He craved in aid of his submission the cases of UBN PLC. VS. SPARKLING BREWERIES LIMITED (1997) 5 NWLR (PT. 505) 344; GAMBORUMA VS. BORNO (1997) 3 NWLR (PT. 495) 530; PROF. AJIBAYO AKINKUGBE VS. EWULUM HOLDINGS (NIG.) LTD. & ORS (2008) ALL FWLR (PT. 423) 1269.

He submitted there was no basis for the award of special damages made in favour of the Respondent by the lower Court and urged us to set it aside and allow the appeal.

Arguing per contra, learned counsel to the Respondent stated the settled position of the law that the standard of proof required in civil cases is discharged on the preponderance of evidence. He referred us to the evidence adduced on behalf of the Respondent to submit that the Respondent proved his case as required by law and urged us to so hold.

On the submission of Appellants’ counsel that the Respondent’s case was rooted in trespass to person, he submitted the evidence before the trial Court showed clearly the Respondent’s case was founded on trespass to land. He submitted that trespass to land is founded on proof of possession and that the Respondent led credible evidence to establish the fact that he was in possession until the Appellants brought thugs to disturb him. He submitted the law ascribes possession to the party with a better title, and that the Appellant was unable to prove superior title. He urged us to hold that the Respondent was not only in possession but had the best title. He cited the following cases in support of his position: NWOKORO & ORS. VS. ONUMA & ANOR (1994) 5 NWLR (PT. 343) 191; GRAHAM VS. PEAT 105 E.R. 94; AROMIRE VS. AWOYEMI (1972) SC 1; AJADI VS. OLANREWAJU (1960) 1 ALL NLR 382; UNIVERSAL VULCANIZING (NIG.) LTD. VS. IJESHA UNITED TRADING & TRANSPORT COMPANY LTD. & ORS (1992) 9 NWLR (PT. 266) 388; MOGAJI & ORS. VS. ODOFIN & ORS. (1978) 1 ALL NLR (PT. 1) 112-115 and OKORIE VS. UDOM (1974) NSCC 141.

Learned counsel to the Respondent further submitted that the acts of the Appellants on the disputed land was illegal and unlawful and that the finding of the trial Judge adjudging them trespassers enjoys the support of evidence on record. He relied on the cases of EKRETSU VS. OYOBEBERE (1992) 9 NWLR (PT. 266) 438; ARTA INDUSTRIES (NIG.) LTD. VS. THE NIGERIAN BANK FOR COMMERCE & INDUSTRY (1988) SC. 8 and G.S. PASCUTTO VS. ADECENTRO (NIG.) LTD (1997) 12 SCNJ 1. Still on issue No. 1 learned counsel submitted that the trial court adequately evaluated the evidence before it and there is no need for this Court to interfere. He craved in aid of his submission the cases of WOLUCHEM VS. GUDI (1981) SC and SIJUADE VS. OYEWOLE (2012) 11 NWLR (PT. 1311) 306 and urged us to resolve this issue in favour of the Respondent.

On issue No. 2, learned counsel to the Respondent urged us to hold that there was sufficient evidence before the trial Court to justify the award of special damages made by it. He submitted that the law is not that special damages must be proved with mathematical exactitude and that where there is unchallenged evidence to ascertain the worth of the damages such will constitute sufficient proof of special damages. He cited the cases of DUMEZ VS. OGBOLI (1972) 3 SC 196; SPDC (NIG.) LTD VS. TIEBO VII (2005) 9 NWLR (PT. 931); AMADI VS. CHINDA (2009) 10 NWLR (PT. 1148) 131; BOSHALI VS. ALLIED COMMERCIAL EXPORTS LTD. (1961) ALL NLR 917 and ODULAJA VS. HADDAD (1973) II SC 357 in support.

He submitted that the lower Court was right when it exercised its discretion to award special damages to the Respondent as there was sufficient evidence before it to justify same.

He urged us to resolve this issue in favour of the Respondent and dismiss the appeal with substantial costs.

The Respondent adduced evidence at the lower Court that he surveyed the land and put PW1 on it to farm and drive away trespassers. There is also evidence on record that he fenced the land on which he erected four iron gates.

For their own part the Appellants gave evidence in proof of their claim that they were in possession of the land. Their evidence is that they put on the land customary tenants who paid tributes known as “Ishakole” to them. It is further their evidence that they surveyed the land and put structures thereon.

From the evidence placed before the lower Court, both parties claim to be in possession of the land. The law is that where both the Claimant and the Defendant claim ownership of the same parcel of land, title is put in issue and the Claimant has a duty to prove he has a better title than the Defendant. See OYEWUSI VS. OLAGBAMI (2018) 14 NWLR (PT. 1639) 297; ORLU VS. ONYEKA (2018) 3 NWLR (PT. 1607) 461; NIGERCHIN VS. OLADEHIN (2006) 13 NWLR (PT.998) 536; MAISHANU VS. ANCHAU (2008) 6 NWLR (PT. 1084) 565.
In SORONNADI VS. DUREGO (2019) 6 NWLR (PT. 1668) 281 AT 307 PARA H, AUGIE JSC held as follows:
“The issue of who had possession is the key to resolving this appeal because it is settled that where there are rival Claimants to possession of a piece of land, the law ascribe possession to the party who has title or better title. The law therefore attaches possession to title and ascribes it to the person who has title. See CARRENA VS. AKINLASE (2008) 14 NWLR (PT.1107)262 SC.”

The Appellants who were Defendants at the lower Court by their counter claim claimed ownership of the disputed land and relied on evidence of traditional history to prove same. It is however the case of the Respondent as Claimant that the family of the Appellants sold the land to one Chief Adetunji Fadayiro SAN who sold to him (the Respondent). The trial Judge in his judgment evaluated the evidence led before him at the trial and found the witnesses of the Respondent to be witnesses of truth and went on to hold that the Appellants’ family divested themselves of any further right or interest in the land when they sold to the Respondent’s vendor.

The learned trial Judge in his judgment held as follows:
“From the evidence before this Court though the land in dispute previously belonged to the Defendants family, it is clear that they have by Exhibit D divested themselves of any further right or interest on it. The sale of the portion in dispute made by the older members of the Elerinko family who happened to be the persons properly accredited at that material time in 1981 to deal with the family land, to Chief Fadayiro was and remains binding on the entire Elerinko family including all their descendants such as the present descendants. It will be uncautionable, inequitable and obnoxious to allow them to undo what their fathers had done. I hold therefore that the Defendants and indeed the entire Elerinko family of Otta, no longer have any legal right or interest in the land in dispute.”
See page 174 of the record.

It is significant to note that there is no appeal against the above finding of the lower Court. The law is that where a party is aggrieved by any finding or decision of a lower Court, such grievance must be properly raised vide a ground of Appeal. Any complaint not raised in a ground of Appeal is not before an Appellate Court and the Court would not give any consideration to such. See EJOWHOMU VS. EDOK-ETER MANDILAS LIMITED (1986) 5 NWLR (PT. 39) 1; UZOCHUKWU VS. ERI (1997) 7 NWLR (PT. 514) 535; OLAWEPO VS. SECURITIES AND EXCHANGE COMMISSION (2011) 16 NWLR (PT 1272) 122.

The Notice of Appeal filed by the Appellants contains three (3) grounds of Appeal. I shall for ease of reference reproduce them. They are:
GROUND ONE
The learned trial Judge erred in law and misdirected himself upon the facts when he held that “the Defendant led thugs to invade the Claimant’s land in dispute demolished his fence and gate.
PARTICULARS OF ERROR
1. There are no material evidence before the court to support the finding that the Defendants trespassed on the land in dispute.
2. No material facts to establish the existence of a wall fence in the first instance and a demolished fence by the Defendants.
3. The award of damages for trespass was made gratuitously.
GROUND TWO
The learned trial Judge erred in law by awarding special damages to the plaintiff without proof as required by law.
PARTICULARS OF ERROR
Special damages in the sum of N1.1 (One Million, One Hundred Thousand Naira) was not proved at all and as required by the law.
ERROR OF LAW
The learned trial Judge erred in law by awarding special damages to the Plaintiff without proof as required by law.

PARTICULARS OF ERROR
1. Special damages in the sum of N1.1 (One Million, One Hundred Thousand Naira) was not proved at all and as required by the law.
2. There was not (sic) evidence before the Court to support the finding on special damages awarded by the Court to the plaintiff.
3. The award of special damages was gratuitous and not supported by an iota of evidence.
GROUND THREE
The entire decision is unreasonable, unwarranted and cannot be supported by the weight of evidence.
The trial Judge at page 173 of the record further held thus:
“Exhibit D having validly transferred interest in the subject land in dispute from Elerinko family to Adetunji Fadayiro in 1981, Chief Fadayiro was entitled to and also validly transferred his interest and title in the same land to the Claimant in 1993. I therefore resolve issue No1 in favour of the Claimant.”
No ground of appeal was raised to challenge the above finding. It is very clear from the grounds of Appeal that the decision of the trial Judge affirming the title of the Respondent derived from Chief Fadayiro as valid was not challenged by the Appellants and

I so hold. It is also significant to note the reliefs sought by the Appellant before this court. It is as follows:
“RELIEF SOUGHT FROM THE COURT OF APPEAL
That the award of special and general damages awarded against the Defendants be set aside.”
It is my considered view that the decision of the lower Court affirming the Respondent’s title to the disputed land remains inviolable and binding on all parties and I so hold.

See ORIORO VS. OSAIN (2012) 16 NWLR (PT. 1327) 560; GEGE VS. NANDE (2006) 10 NWLR (PT. 988) 256 and DAKAT VS. DASHE (1997) 12 NWLR (PT. 531) 46.

The evidence adduced by the Respondent and his witness before the lower Court is that the Appellant invaded the disputed land sometimes in November, 2003 to challenge the authority of PW1 who he put on the land. There is also evidence on record that all efforts made at an amicable settlement failed and that the Appellant again sometimes in February, 2004 led thugs to the land. On this occasion, they demolished the fence and took away the gates erected thereon. The trial Judge in the course of evaluating the evidence before him at pages 173 to 174 of the record held as follows:
“Evidence of PW2 was not denied under cross examination.
PW3 also corroborated the evidence of PW2. The Defendants on their part denied the allegations claiming that the Claimant had no properties on the land and that it was the Claimant who brought OPC Men to invade the land to destroy their crops.
Having carefully watched and listened to all the witnesses of both parties, I find the witnesses of the Claimant more credible and believable. On the other hand, the witnesses of the defendants especially DW1 and DW3 were shifty, evasive and dodgy. They denied obvious fact including the fact that Chief Fadayiro SAN represented their family in land cases, even in the face of Exhibit C, a Court of Appeal Judgment obtained for them by Chief Fadayiro. While I find the witnesses of the Claimant to be witnesses of truth, I find those of the Defendants to be unreliable and their evidence unbelievable. I believe the evidence of the Claimant’s Witnesses that the Defendants led thugs to invade the Claimant’s land in dispute and demolished his fence and gates. I therefore hold that the Defendants are liable in the tort of trespass and damniible in damages.”

The above findings of the trial Judge was based on his assessment of witnesses that testified before him. The trial Judge who had the opportunity to watch and observe the demeanor of the witnesses is in the best position to comment on their credibility. He watched the witnesses and came to the conclusion that they were not credible. It is a settled principle of law that an Appellate Court will not interfere with a finding made by a trial Court based on credibility of witnesses except where the Court has not fully utilized the advantage of seeing and hearing the witnesses. In fact, an Appellate Court must be very reluctant to differ from such findings. See EYA VS. OLOPADE (2011) 11 NWLR (PT. 1259) 505; SOGUNRO VS. YEKU (2017) 9 NWLR (PT. 1570) 290; OMOTAYO VS. COOPERATIVE SUPPLY ASSOCIATION (2010) 16 NWLR (PT. 1218) 1.
In the instant appeal, the Appellants have not placed anything before us to warrant our interference with the findings of the trial Court based on the credibility of witnesses and I cannot find any reason why we should do so. There is no basis to distort the decision of the lower Court that the Appellants led thugs to invade the Respondent’s land and demolished his fence and gates. The conclusion was based on sound reasoning and I so hold. The Appellants are thus liable to the Respondent for trespass to his land.

The Appellants’ further complaint is on the award of damages to the Respondent by the trial Court. They claim the requirement of the law that special damages must be strictly proved was not met by the Respondent. Their complaint is on the award of special damages and not the quantum of the damages awarded. The trial Judge in his judgment made the following final orders at page 175 of the record.
“In conclusion therefore, I make the following final orders:
1) Damages in the sum of N.1.5 Million (comprising of special damages of N1.1 Million and N400,000.00 general damages) is awarded against the Defendants in favour of the Claimant for trespass committed by the Defendants against the land of the Claimant, situate, lying and being at ORENTE Area along UNITAD Road, Off Abeokuta Lagos Road, Sango Otta, Ogun State measuring approximately 2.670 Hectares more particularly described in dispute Plan No. ALS/OG/58/93 dated 19th July, 2003.
2) An order of perpetual injunction is hereby granted restraining the Defendants by themselves, their servants, agent and privies from committing further acts of trespass on the Claimant’s land situate, lying and being at ORENTE Area along UNITAD Road, Off Abeokuta Lagos Road, Sango Otta, measuring approximately 2.670 Hectares and more particularly described in dispute Plan No. ALS/OG/58/93 dated 19th July, 2003.
3) The counter claim of the Defendants is hereby dismissed.”

The point must be made here that trespass is actionable per se i.e. without proof of damage. Even where no damages or loss is caused, the instant Respondent as Claimant at the lower court is entitled to nominal damages. See GBEMISOLA VS. BOLARINWA (2014) 9 NWLR (PT. 1411) 1 where the Supreme Court per M. D. Muhammad JSC held as follows:
“It is idle to challenge the award (not the quantum) of damages against the Appellant arising from his trespass established by the evidence on record. The law is that a Plaintiff is entitled to nominal damages for trespass even if no damages or loss is caused same is recovered according to general principle.
See UMUNNA VS. OKWURAIWE (1978) 6 – 7 SC 1 AT 11 – 12 AND OSUJI VS. ISIOCHA (1989) 3 NWLR (PT. 111) 623 AT 634.”

The Appellants have not challenged the award of general damages made by the trial Court. I find no reason to disturb the award and I hold that the Respondent is entitled to the sum of Four Hundred Thousand Naira (N400,000.00) awarded in his favour by the lower Court as general damages for the Appellants’ act of trespass on his land.

Now, to the issue of the award of special damages. Special damages are such damages as the law will not infer from the nature of the act as they do not follow in the ordinary course but exceptional in their character and must be claimed specially and proved strictly. The law is that a claimant who claims entitlement to special damages has an obligation to plead and particularise any item of damage. This will enable the Defendant know the nature of special damages being claimed against him and enable him prepare his defence. See AJIGBOTOSHO VS. REYNOLDS CONSTRUCTION COMPANY LIMITED (2019) 3 NWLR (PT. 1659) 287; NWAJI VS. COASTAL SERVICES NIGERIA LIMITED (2004) 11 NWLR (PT. 885) 552 and ELIOCHIN VS. MBADIWE (1986) 1 NWLR (PT. 14) 47.

The Respondents in their amended statement of claim gave particulars for the special damages claimed. They averred at paragraph 22 of the Amended Statement of Claim at page 68 of the record as follows:
“22. The Plaintiff avers that in the process the Defendants damaged the following properties of the Plaintiff.

a) Iron Rod valued 600,000.00
b) Block and materials used for fencing 365,000.00
c) 4 Iron Gates valued 200,000.00
Totaling 1,165,000.00
General Damages 835,000.00
Grand Total 2,000,000.00

It is apparent from the above that the cost of items claimed under the head of special damages was specifically pleaded by the Respondent and I so hold. The next question is, whether the special damages were strictly proved as required by law. It is the position of the Appellants that the Respondent did not discharge the onus of proof placed on them by law. They contend that the quality of evidence adduced by the Respondent in proof of the claim of special damages was not sufficient to justify the award made in that they failed to tender the receipts of purchase for the items allegedly destroyed and also that no expert evidence was given in support.

The trial Judge in his judgment found upon evaluation of the evidence before him that the fence erected on the land by the Respondent was demolished by the Appellants who also destroyed the four (4) iron gates put on the fence. I have no reason to disturb these findings. On whether there was sufficient evidence to justify the award of special damages, the trial Judge at page 9 of his judgment contained at page 174 of the Record held as follows:
“Once trespass is proved, the victim is entitled to general damages. However, the Claimant has gone further to give evidence of special damages which evidence has not been seriously rebutted. Although the Defendants have argued that the special damages should be denied because receipts have not been tendered, my view is that it is not every case of alleged special damages that receipts must be tendered. The surrounding circumstances, nature of items involved and the substance of evidence given may be plausible in the absence of receipts. From the evidence before this Court the fence and gates were erected immediately after the land was purchased by the Claimant in 1993; and they were destroyed in 2004 – eleven years after. Given the nature of the materials and the length of time involved, I do not consider it realistic to expect that receipts be produced as indeed it is such expectation that sometimes leads desperate litigants to embark on the unsavory journey of forging receipts. On the issue of special damages therefore, I am satisfied with the evidence proffered by the Claimant especially PW2, as earlier quoted in this judgment that a loss of N1.1 million was suffered as a result of the Defendants act of trespass.”

The above finding and the decision of the lower Court is supported by evidence and accords with the law and good reasoning. It is not perverse in any way. I agree entirely with it and affirm same.

It is also worthy of note that in paragraph 22 of the Amended Statement of Claim quoted earlier, the Respondent pleaded specifically the items lost to the unlawful invasion of his land by the Appellants. The Appellants did not specifically deny this averment in the amended statement of defence and counter claim. In the circumstance, all that was required of the Claimants was minimal proof which burden they discharged. See OGUNJUMO VS. ADEMOLU (1995) 4 NWLR (PT. 389) 254 and ADEWUYI VS. ODUKWE (2005) 14 NWLR (PT. 945) 473.

I therefore hold that the trial Judge was right when he awarded special damages in the sum of One Million, One Hundred Thousand Naira (N1,100,000.00) in favour of the Respondent.

The conclusion from all of the above is that this appeal lacks merit and should be dismissed. I therefore dismiss this appeal for lacking in merit. The judgment of the Ogun State High Court, Agbara Judicial Division holden at Otta in Suit Nos. HCT/83/2004 delivered on 20th December, 2010 is affirmed.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my Lord FOLASADE AYODEJI OJO, JCA, just delivered.
My Lord’s has dealt with the issues in this Appeal in a lucid manner. I have nothing to add. I agree with the reasons given as well as the conclusion that the Appeal is unmeritorious.
The Appeal is also dismissed by me. I abide with the consequential Order made in the said lead Judgment.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother Folasade Ayodeji Ojo, JCA, gave me the benefit of reading in advance, the draft of the Judgment just delivered.

My learned brother has comprehensively considered and resolved the issues that arose for determination in this appeal. The claim of special damages as awarded by the learned trial Judge was satisfactorily proved as required by law. The learned trial Judge was right in awarding same.
I therefore agree with my learned brother that the appeal is lacking in merit. It is accordingly dismissed.

Appearances:

OTUNBA OLUMIDE AKINBINU For Appellant(s)

ABIODUN O. ADEBAYO For Respondent(s)