RAIMI ADEBAYO AYOOLA & ORS v. ALIMI LAWAL & ORS (2012)

RAIMI ADEBAYO AYOOLA & ORS v. ALIMI LAWAL & ORS

(2012)LCN/5684(CA)

In The Court of Appeal of Nigeria

On Friday, the 30th day of November, 2012

CA/I/105/2010

RATIO

LAND LAW: DECLARATION OF TITLE TO LAND: PARTIES UNDER LAND MATTERS MIGHT MAKE REFERENCE TO THE SAME LAND WITH DIFFERENT NAMES AND PLANS

For the first proposition (supra), see Ayuya v. Yonrin (supra) at 1865, per the lead judgment of the great Jurist, Onnoghen, J.S.C., as follows –
“It is common occurrence in land matters for parties to refer to the same piece or parcel of land by different names and also to indicate in their respective plans different features but the bottom-line remains the fact that the parties know the land in dispute otherwise there would be no dispute at all; what is usually in dispute is the ownership of particular land being claimed by the plaintiff…”
See also Fatuade v. Onwoamanam (1990) NWLR (Pt.132) 322, Hayaki v. Dogara (1993) 8 NWLR (Pt.313) 586 at 594, Ezeudu & Ors. v. Obiagwu (1986) 2 NWLR (Pt.21) 208, Aromire & Ors. v. Awoyemi (1972) 1 ALL NLR (Pt.1) 101 at 113; Babatunde v. Akinpelu (1986) CA (Pt.1) 146 at 156.PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

LAND LAW: WHERE THE IDENTITY OF A PIECE OF LAND WILL NO LONGER BE IN DISPUTE
For the second proposition (supra) that where there is a claim and counter-claim over the same disputed piece of land which the rival parties alleged they got from a common grantor, the identity of the disputed land would no longer to be in issue or in controversy, see Anyanwu & Ors v. Uzowuaka & Ors (2009) 13 NWLR (Pt.1159) 445 at 475 – 476.PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

LAND LAW: DECLARATION OF TITLE TO LAND UNDER SURVEY PLAN
For the third proposition that the survey plan of any of the parties that identifies the disputed area of land with exactitude or precision may be used to tie a declaration of title to land, see Okonkwo v. Kpajie (1992) 7 SCNJ 290 or (1992) 2 NWLR (Pt.226) 633 at 657 – 658.PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

LAND LAW: A PARTY THAT CALLED THE GRANTOR OR HIS REPRESENTATIVE TO GIVE EVIDENCE HAS A LEVERAGE

JUSTICES

MONICA B. DONGBAN MENSEM Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

RAIMI ADEBAYO AYOOLA & ORS Appellant(s)

AND

ALIMI LAWAL & 4 ORS Respondent(s)

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Oyo Judicial Division of the High court of Justice of Oyo State holding at Oyo (the court below) which dismissed the appellants’ claim for declaration of title to land, damages and injunction, and granted the 1st-4th respondents’ counter-claim of title to the same piece of land, while it dismissed the 5th respondent’s counter-claim in its entirety.
Stated in concise form, the case of the appellants was that the disputed piece of land which is situate at Aboyun Ogun Village, Obananko road, Oyo in Oyo state was granted to their ancestor, one Melemuku Adisa, by Alaafin Abiodun Atiba for farming purposes. Their ancestor farmed the piece of land until his death. The appellants inherited the piece of land after the death of their ancestor. They continued farming seasonal crops thereon. It was in 1993 that the respondents, for the first time, interrupted the appellants’ farming activities on the land. The respondents again entered the disputed land in 1995. They destroyed some seasonal crops and economic crops of the appellants. The respondents entered the disputed land for the third time in 1997 and destroyed more seasonal and economic crops alleging that the piece of land belongs to them through a grant to their ancestor, one Yahaya, by the same Alaafin Atiba. In a considered judgment, the court below found for the 1st-4th respondents by granting their counter-claim, while the appellants’ suit was dismissed.
The appellants were unhappy with the judgment of the court below. They appealed against it in a notice of appeal with six grounds of appeal contained on pages 131- 134 of the record of appeal (the record). Two issues for determination were extracted from the grounds of appeal as the issues for discussion in the appellants’ brief of argument dated 28.3.11 and filed on 30.3.11, thus-
“(i) whether the findings of full of the lower court is supported by Evidence. This issue is covered by Grounds (i), (ii), (v) and (vi) of the Grounds of Appeal.
(ii) whether the Default of the Learned Trial Judge to make any finding of fact and/or pronouncement on plaintiffs/appellants claim for General Damage and special Damages of N204,000,00 (Two Hundred and Four Thousand Naira only) is proper and has not caused injustice to plaintiffs/appellants. This issue is covered by ground (iv) of the Grounds of appeal”.
It was contended on the first issue that the PW1, one Mr. Benjamin Adebimpe Lala, gave evidence of the description of the disputed land which was not discredited under cross-examination, while the other five witnesses testified in accordance with the further amended statement of claim, but the court below erroneously held that the failure of the appellants to call the grantor, one Alaafin Abiodun Atiba, as a witness amounted to the withholding of evidence under section 149 (d) of the Evidence Act and that; the court below gave undue weight to the evidence of 1st DW who was unable to describe the disputed land, and the scanty evidence of the 2nd DW and 4th DW together with Exhibits C and C1, some receipts made during the pendency of the suit, which it did not weigh alongside the evidence of the appellants in the imaginary scale as required by section 137 of the Evidence Act occasioned miscarriage of justice to the appellants vide the cases of Sanusi v. Amoyegun (1992) 4 SCNJ 177 at 190-191, Kayaoja v. Bello and Ors. (2005) 4 NWLR (Pt.915) 327 at 338, Adebayo v. Shogo (2005) 2 SCNJ 60 at 67, Fagbenro v. Arobadi (2006) 2 SCNJ 326 at 343, Ogbuokwelu v. Umfanafunkwa (1994) 5 SCNJ 24 at 57, Nneji v. Chukwu (1996) 12 SCNJ 388 at 400 or (1996) 10 NWLR (Pt.478) 265 at 274.
The appellant’s brief contended on the second issue that the unchallenged evidence of the 4th appellant on page 48 of the record established the special and general damages pleaded in paragraph 40 (iii) of the further amended statement of claim on page 8 of the record which the court below did not evaluate nor pronounced upon in its judgment contrary to the cases of Enigbokan v. American International Insurance Company (Nigeria) Limited (1994) 6 SCNJ 168 at 179 – 180, Uka v. Iroko (2002) 7 SCNJ 137 at 156, therefore the appeal be allowed and the appellants’ claim at the court below be granted, while the respondents’ counter-claim at the court below be dismissed.
The respondents, brief dated 4.6.11 but filed on 6.6.11 adopted the issues for determination formulated by the appellants. The brief contended that the appellants did not show how section 149 (d) of the Evidence Act was misapplied by the court below; that the evidence of the contestants was painstakingly evaluated by the court below before it reached its judgment that the appellants who alleged grant from the Alaafin did not prove the grant, while the 1st-4th respondents proved the grant and were rightly given judgment in line with their counter-claim tied to the ascertained area of land in dispute vide Maigoro v. Bashir (2000) 11 NWLR (Pt.679) 460, Idundun v. Okumagba (1976) 9 – 10 SC 227 at 246 – 250, Thompson v. Arowolo (2003) 6 SCM (no pagination), Owoade v. Omitola (1988) NWLR (Pt.77) 413, Sanusi v. Amoyegun (1992) 4 NWLR (Pt.237) (no pagination), Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) 643, Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360, Sagay v. Sajere (2003) 6 NWLR (Pt.661) 310, Ochin v. Ekpechi (2000) 5 NWLR (Pt.656) 225, Adisa v. Oyinwola (2000) 10 NWLR (Pt.74?) 116, Nwokoro v. Nwosu (1994) NWLR (Pt.337) 172.
The respondents’ brief contended on the second issue that in light of the findings of fact made by the court below culminating in the dismissal of the appellants’ case on ground of the weakness of the evidence for the appellants it was unnecessary for the court below to pronounce on the issue of damages which was ancillary to the claim that was dismissed vide Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718, Law v. Opaluwa (2004) 9 NWLR (Pt.59) 567, Mill v. Hoff (1994) 2 NWLR (Pt.326) 262; accordingly the appeal should be dismissed as trespassers cannot benefit from their own acts of trespass.
The appellants’ issues for determination were adopted by the respondents. I too adopt them for the discussion as the said issues are germane to appeal,
The court below summarised the relevant portions of the pleadings, evidence of the parties, and submissions of their respective learned counsel on pages 117-123 of the record. It then found as a fact on the issue of proof of title to the disputed land on pages 124-125 of the record that both the appellants and the 1st-14th respondents relied on a common grantor, one Alaafin Atiba, as their respective root of title to the disputed land. It followed up the finding with another finding that the appellants did not call a witness from the grantor’s side to prove their claim that one Alaafin Atiba granted the disputed land to their ancestor, whereas the 1st-4th respondents called the 1st DW who testified on the authority of Alaafin that the land in dispute was granted by Alaafin to the 1st-4th respondents’ ancestor. The court below made another follow-up finding of fact tied to the first two findings that by calling the 1st DW, a representative of Alaafin, who testified in support of their evidence that Alaafin Atiba granted the land in dispute to their ancestor, the 1st-4th respondents proved better title to the disputed land by grant.
Of the six witnesses called by the appellants whose testimonies appear on pages 36-53 of the record, only the 6th PW, one Alhaji Rafiu Adekojo, gave evidence on pages 46-53 of the record on the issue of title to the disputed land by grant. No witness from Alaafin gave evidence for the appellants in support of the alleged grant.
The 1st – 4th respondents on their part called a witness from Alaafin, the grantor, testified on pages 54-55 of the record in support of their case as follows:-
“1ST D.W.
CHIEF OLAYIWOLA APEKA:- Sworn on the Holy Quran and state in Yoruba language as follows: I live at Alaafin Oyo. I am one of the chief of Alaafin of Oyo. I am in court to give evidence on the authority of Alaafin of Oyo. As a chief to the Alaafin of Oyo, I am in charge of land matters.
I know the 1st-4th defendants as members of Yaya family.
I know the land in dispute in this case. It is situate on Isokun/Cele road and Obananko.
From the road on Isokun/Cele road, on one side, Alaodi family land forms boundary with the land in dispute, Ope and Alapo family also form boundary with the land on second side, on the 3rd side we have Kehinde Ilora while on the 4th side, we have the Isokun/Cele road.
The land in dispute was originally granted to Yaya family by Alaafin Atiba.
The ancestral father of Yaya family was an Islamic Spiritualist to Alaafin Atiba to the present Oyo, Alaafin Atiba settled him at Yaya compound on Parakoye road. I know the 1st plaintiff very well as well as the other plaintiffs. The plaintiffs are members of Aji family.
Yaya family and Aji family compounds are separated by a fence.
Yaya was an Islamic spiritualist. He led others in prayer for the Alafin and also prayed for him.
It is not true as alleged by the plaintiffs that it was the Alaafin that granted the land in dispute to them.
Alaafin granted land to Aji family at Idaogun while the land at Obanako which is in the dispute was granted to Yaya family.
Members of Aji family as still at Ida Ogun now. Infact, their family member was installed as Baale by the Alaafin.
A report was lodged on the land in dispute between the plaintiffs and the defendants. Alaafin decided the dispute by saying that it belongs to Yaya family and that if any member of Aji family wanted land, he should go to Baale of Idaogun for such land.”
The 1st DW was not Shaken under cross-examination on pages 55-56 of the record.
The quarrel of the appellants that the court below did not evaluate the evidence on the root of title of the appellants and of the 1st – 4th respondents to the land in the dispute and/or its findings on root of title to the disputed land are not supported by the weight of evidence is untenable. Because the court below actually carried out its primary duty of evaluating the evidence adduced on the root of title projected by the appellants and the 1st – 4th respondents and came to the summit of its findings that by calling a representative of the grantor who testified for the 1st – 4th respondents in confirmation of the grant the 1st – 4th respondents proved their counterclaim.
There was therefore unquestionable appraisal/evaluation of the evidence by the court below respecting the root of title of the appellants vis-a-vis that of the 1st – 4th respondents and its findings thereon are not perverse and are amply fortified by the evidence of the 1st DW (supra). I find no basis to disturb the said sound findings of fact – See Obodo v. Ogba (1987) 2 NWLR (Pt.54) 1 at 12 – 13 thus –
“The authorities on this branch of the law confirm that there is a universal reluctance on the part of appellate Court to reject a finding on specific facts particularly where such a finding is based on the demeanour, bearing or credibility of witnesses who testified before the trial Court. No appellate Court can believe or disbelieve witnesses it never saw or heard. Sir Lancelot Sanderson in Kuma v. Kuma 5 W.A.C.A. p.9 (Privy Council) agreed that in a case which depended largely (like the one now on appeal) on verbal evidence of witnesses the trial judge had the great advantage of seeing, hearing and watching the demeanour of those witnesses. If he accepts the evidence of the plaintiffs and his witnesses in respect of material questions in issue an appellate Court would not interfere. The same principle was followed in Macjaja v. Ibok 12 W.A,C.A. 148 at pp.149/150.”
See also Eboade v. Atomesin (1997) 5 NWLR (Pt.506) 490 at 502 and 508, Sha Jnr. v. Kwan (2000) 8 NWLR (Pt.670) 685, Ayuya v. Yonrin (2011) ALL FWLR (Pt.583) 1842 at 1861.
The identity of the disputed parcel of land was not in controversy both on the pleadings and the evidence adduced by the respective parties in respect of the appellants’ claim and the 1st-4th respondent’s counterclaim. The appellants’ surveyor, the 1st PW, tendered the two survey plans of the area of land including the disputed area in Exhibits A and B (See pages 36-37 of the record). The two survey plans (Exhibits A and B) were admitted in evidence without objection. Similarly, the 1st-4th respondents’ surveyor, the 5th DW, tendered in evidence the survey plans of the disputed area as Exhibits D and E without objection. (see pages 64-66 of the record).
None of the parties made the identity or dimension of the disputed piece of land an issue, so it was unnecessary to look for oral evidence from any of the other witnesses, let alone the 1st DW, on the identity of the disputed land and; the contention of the appellants that 1st DW did not identify the land with particularity as did the 1st PW, a surveyor, is immaterial on the grounds that the claim of the appellants and the counter-claim of the 1st-4th respondents were over the same piece of land alleged to have been granted to their respective ancestors by a common grantor; also, it is settled that a declaration of title to land may be based on either a survey plan of the plaintiff or on the survey plan of the defendant, whichever describes with precision the disputed land.
For the first proposition (supra), see Ayuya v. Yonrin (supra) at 1865, per the lead judgment of the great Jurist, Onnoghen, J.S.C., as follows –
“It is common occurrence in land matters for parties to refer to the same piece or parcel of land by different names and also to indicate in their respective plans different features but the bottom-line remains the fact that the parties know the land in dispute otherwise there would be no dispute at all; what is usually in dispute is the ownership of particular land being claimed by the plaintiff…”
See also Fatuade v. Onwoamanam (1990) NWLR (Pt.132) 322, Hayaki v. Dogara (1993) 8 NWLR (Pt.313) 586 at 594, Ezeudu & Ors. v. Obiagwu (1986) 2 NWLR (Pt.21) 208, Aromire & Ors. v. Awoyemi (1972) 1 ALL NLR (Pt.1) 101 at 113; Babatunde v. Akinpelu (1986) CA (Pt.1) 146 at 156.
For the second proposition (supra) that where there is a claim and counter-claim over the same disputed piece of land which the rival parties alleged they got from a common grantor, the identity of the disputed land would no longer to be in issue or in controversy, see Anyanwu & Ors v. Uzowuaka & Ors (2009) 13 NWLR (Pt.1159) 445 at 475 – 476.
For the third proposition that the survey plan of any of the parties that identifies the disputed area of land with exactitude or precision may be used to tie a declaration of title to land, see Okonkwo v. Kpajie (1992) 7 SCNJ 290 or (1992) 2 NWLR (Pt.226) 633 at 657 – 658.

While it is not mandatory to call grantor or his representative as a witness to prove the grant of a piece of land to the grantee – Ishola v. Ogunjimi (1974) 4 I.U.L.R. (Pt.1) 1, a party that called the grantor or his representative to give evidence to substantiate the grant like the testimony of the 1st DW (supra) called by the 1st – 4th respondents had an edge or leverage over the evidence called by the appellants who did not summon the grantor or his representative to give evidence in confirmation of the grant. And in such case, the 1st – 4th respondents that called the representative of the grantor who tendered evidence confirming the grant and denying any grant of the disputed land to the appellants by the grantor outweighed the evidence of the appellants that did not call evidence from the grantor’s side.
So, the fact that the court below used section 149(d) of the Evidence Act (without specifically referring to it in its judgment) to reason that the appellant withheld a piece of evidence did not detract from its over-all decision that the evidence of the 1st – 4th respondents placed side by side with the appellants’ evidence in the imaginary scale of civil justice outweighed that of the appellants. In my view, there was no substantial error in the allusion by the court below to the failure of the appellants to call a witness from Alaafin to substantiate the grant as to lead to the reversal of its judgment – See Amuroti v. Agbeke (1991) 6 S.C.N.J. 54 at 64 following the cases of Olubode v. Salami (1985) 2 NWLR (Pt.7) 282, Onojobi v. Olanipekun (1985) 4 S.C. 156 at 163, Gwonto v. State (1983) 1 S.C.N.L.R. 142.
I do not, also, see how the comment in that portion of the judgment of the court below (supra)was not supported by the materials before it, or led to miscarriage of justice; as putting aside the said remark, there was still sufficient evidence to sustain the decision arrived at by the court below that the appellants did not prove title to the disputed land by grant. In other words, the decision arrived at by the court below was not materially affected by the said observation, An appellate court is more concerned with the correctness of the decision or judgment reached by a trial court in a case than its reasoning especially if the reasoning does not materially alter the correctness of the decision as in this case – see Ukejianya v. Uchendu 13 WACA at 46, Taiwo v. Sowemimo (1982) 5 SC 60 at 74 – 75, Ibuluya v. Dikibo (2011) 3 WRN at 23.
The judgment of the court below merely referred to Exhibits C and C1 on page 127 of the record while summarising the submissions of learned counsel for the plaintiffs at the court below’ But the ratio of the judgment (see pages 117 – 130 of the record embodying the whole judgment) did not dwell on the weight, use, value or effect of Exhibits C and C1 on the case for the 1st-4th respondents. Nor do the grounds of appeal on pages 132 – 133 of the record reflect any complaint on Exhibits C and C1. Also, there is no issue for determination covering Exhibits C and C1. Based on the trinity reasons (supra) the argument on Exhibits C and C1 smuggled under the first issue for determination goes to no issue and is hereby discountenanced – See C.P.C. v. INEC (2012) 29 WRN 1 at 41, Gateway Products (Nig) Ltd. v. Intercontinental Bank Plc. (2012) 22 WRN 166 at 177, African Newspapers Ltd. and Anor v. Akano (2012) All FWLR (Pt.605) 345.
The court below did not pronounce on the leg of claim of special and general damages made by the appellants after it dismissed their case of claim of title to the disputed piece of land. I think the court below was wrong in doing so. It had the duty to pronounce on all the material issues placed before it as well as to make notional award of damages after dismissing the suit, in circumstances of the case – see Owolagba and Ors. v. Bakare and Ors. (1998) 3 NWLR (Pt.543) 528 at 534 thus –
“It is indisputable pursuant to the right of the parties to any litigation to fair hearing that a trial court ought to hear and consider all the legal and admissible evidence adduced before it in respect of all the relevant issues joined by the parties. In the same vein, an appellate court ought to hear and consider the arguments on all the material issues canvassed by the parties before it. see Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130 at 165; Ukpai v. Okoro (1983) 2 SCNLR 380 etc.”
See also Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt.146) 578 at 590, Owodunni v. Registered Trustees of Celestial Church of Christ and Ors. (2000) 10 NWLR (pt.675) 315 at 347 – 348.

On the duty of a court to make notional or provisional award of damages where it dismisses an action in which damages are claimed, the case of Ifeanyi Chukwu (Osondu) Ltd, v. Soleh Boneh Ltd. (2000) 5 NWLR (Pt.655) 322 at 351 is instructive. There the Supreme Court held inter-alia per the lead judgment of Ogundare, J.S.C., (now of blessed memory) that –
“Before I proceed further I like to comment briefly on the course taken by the Court of Appeal in this case:
“The answer to the first issue is capital YES. Since this issue disposes of the appeal, I shall not engage in an academic exercise in discussing the other issues.”
This approach to the issues placed before the court is, to say the least unfortunate. The course taken, while permissible with the final Court of Appeal is not always the proper course for an intermediate court to take. Unless in the clearest of cases, an intermediate court should endeavour to resolve all issues put before it. There are decided cases of this court which enjoin a trial court even where it has dismissed an action to consider and pronounce on the quantum of damages to be awarded in the event of the plaintiff finally succeeding…” (My emphasis).
Guided by the cases of Owolagba (supra), Adegbite (supra), Owodunni (supra) and Ifeanyi Chukwu (Osondu) Ltd. (supra) read with section 15 of the Court of Appeal Act, 2004, as amended, I proceed to look at the complaint of the appellants on the issue of the quantum of special and general damages which the court below, regrettably, failed to consider after it dismissed the appellants’ case.
The court below dismissed the appellants’ action on the ground that they did not prove title to the disputed piece of land, while it granted the 1st-4th respondents’ counter-claim. The appeal against the dismissal of the appellants, claim of title to the disputed piece of land has been shown on the first issue (supra) to be without substance. The logical result is that with the failure of the appellants to prove their radical root of title to the disputed piece of land the acts of possession allegedly made on the disputed piece of land which were built on the failed radical root of title became acts of trespass – See Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616, Fasoro v. Beyioku (1988) 2 NWLR (Pt.76) 263, Adole v. Gwar (2008) 11 NWLR (Pt.1099) 562. The Registered Trustees of the Diocese of Aba v. Nkume (2002) 1 NWLR (Pt.749) 726.

It is trite that a trespasser cannot be awarded any damages. So, the appellants were not entitled to the special and general damages claimed in paragraph 39 of their further amended statement of claim on page 7 of the record as they were found to be trespassers on the disputed piece of land. The court below could not have awarded the said special and general damages claimed by the appellants, in the circumstance.
Besides, paragraphs 39 and 40 (iii) of the further amended statement of claim copied below Pleaded –
“39. The defendants were later arraigned before the Chief Magistrate’s court Oyo in CHARGE NO. MOY/174C/97 C.O.P. v, LAMIDI AJANASI & OTHERS.
(a) The 1st plaintiff reported to the Police at Durbar, Oyo but the 1st plaintiff was advised to resort to civil cause of action.
(b) The Defendants also went to the 1st Plaintiff’s farm and destroyed 1st Plaintiff’s crops in 1996.
PARTICULARS OF DAMAGES
1. 2000 heaps of Yam             70,000.00
2. 3 acres of cassava                       108,000.00
3. 50 stands of plantain/banana           1,000.00
4. 500 stands of pineapples          20,000.00
5. Huts of the plaintiff destroyed           5,000.00
= = = = = = =
TOTAL  204,000.00
= = = = = = =
40. (iii) General damages and special damages of N204,000.00 for trespass committed and still being committed by the Defendants jointly and severally on the plaintiffs land.”
It can be seen that paragraphs 39 and 40 (iii) of the further amended statement of claim (supra) did not particularize the special damages. It is settled that a claim for special damages must be specifically pleaded item by item with corresponding monetary value of the item claimed. The appellants merely set out the gross quantity and value of the crops and economic trees as well as the gross value of the huts allegedly destroyed.
Accordingly, the special damages averred in paragraph 39 of the further amended statement of claim (supra) were not specifically pleaded and evidence led on them by the 6th PW on behalf of the appellants on page 48 of the record went to no issue, especially as the said piece of evidence did not, also, particularise the damages as it merely stated –
[16]
“In 1993, the defendants used caterpillar to destroy 1st Plaintiff’s farm. The same thing happened between 1995 and 1997.
Things destroyed in 1st Plaintiff’s farm are as follows:
1. 2000 heaps of yam valued at N70,000.00
2. 3 acres of cassava valued at N108,000.00
3. 50 stands of plantain/Banana valued at N1,000.00
4. 500 stands of pineapple valued at N20,000.00
5. Huts of the Plaintiff valued N5,000’00
Total valued of things destroyed is N204,000.00.
(Two Hundred and Four Thousand Naira only).”
With the unsatisfactory manner the special damages were pleaded and the scanty evidence led on it on page 48 of the record, the court below could not have awarded the special damages to the appellants. I, too, do not see my way clear to make provisional award of the special damages as they were not specifically averred and strictly proved by the appellants through a witness knowledgeable in the monetary value of crops and economic trees – See Ogbechie v. Onochie (1988) 1 NWLR (pt.70) 370, Osuji v. Isiocha (1989) 3 NWLR (Pt.111) 623, Kosile v. Folarin (1989) 3 FWLR (Pt.107) 1, LSDPC v. Foreign Finance Corporation v. L.S.P.D.C. (1987) 1 NWLR (Pt.50) 413, Okoronkwo v. Chukweke (1992) 1 NWLR (Pt.216) 175, Gari v. Seirafina (Nig.) Ltd. (2008) ALL FWLR (Pt.399) 434, Somorin v. Adekanbi (2012) 14 WRN 126 at 151.
I find no substance on the issue that the appellants were entitled to special and general damages. The failure of the court below to make notional award of damages after it dismissed the appellants’ case did not, therefore, occasion miscarriage of justice, I resolve the second issue against the appellants.
In the final analysis, I find no merit in the appeal. I dismiss it. The judgment of the court below (Akinteye, J.) is hereby affirmed. Appellants shall pay N30,000 costs to the respondents.

MONICA B. DONGBAN-MENSEM, J.C.A: I agree with the lead judgment prepared by my learned brother IKYEGH JCA. In a procedure where a party stands or falls on the weight of his own evidence, it baffles me that the Appellants cast a slur on the duty of the learned trial judge. The Appellants lay claim to ownership of the land in dispute through one Alaafin Atiba. Even by the standard of a lay person, the natural and reasonable thing to do is to call the said Alaafin Atiba or his successors in title to affirm/confirm his grant to the Appellant. Such evidence was not adduced. The Respondents, on the other hand who had counter-claimed and also traced their title to the same Alaafin Atiba, called relevant witnesses who linked Atiba to the grant of the land to the Respondents. The learned trial judge believed them. I fail to see where the learned trial judge erred. (See Obodo Vs. Ogba (1987) 2 NWLR (pt.54) 1 @ 12-13)
My learned brother IKEYEGH JCA has fully considered the two issues raised in this appeal. In addition to my little contribution I wholly, adopt the lead judgment as mine. This appeal is without merit and is hereby dismissed and the decision of the learned trial Judge is affirmed. I adopt the order made as to cost in the lead judgment.

CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading before now the draft of the judgment delivered by my learned brother JOSEPH SHAGBAOR IKYEGH, J.C.A.
I agree entirely with his reasoning and conclusion arrived at in dismissing the appeal for lacking in merit.
I would only chip in a few words concerning the trial court not looking into special and general damages after dismissing the action. The trial court ought to have done so, as the court was duty bound to resolve all the issues on their merits in case the trial court is over ruled subsequently by the appellate court. See the Apex Court’s decision in FRANCIS ADESEGUN KATTO VS. CENTRAL BANK OF NIGERIA (1991) 9 NWLR (PT.214) 1126 at 149. It is only the Supreme Court that could end an appeal even on a sole issue without going into resolution of others in the alternative, being the final court.
For the fuller and detailed reasoning in the leading judgment, I too, dismiss the appeal for lacking in merit and abide by the order made as to costs therein.

Appearances

Mr. A. FolorunsoFor Appellant

AND

Chief A.O. OyeduntanFor Respondent