REV. JOHN IROAGANACHI v. MR. OKECHUKWU MADUBUKO & ANOR (2016)

REV. JOHN IROAGANACHI v. MR. OKECHUKWU MADUBUKO & ANOR

(2016)LCN/8224(CA)

In The Court of Appeal of Nigeria

On Friday, the 26th day of February, 2016

CA/PH/270/2006

RATIO

APPEAL: WHETHER BOTH PARTIES AND APPELLATE COURT ARE BOUND BY THE RECORDS OF APPEAL

Of course, in the hearing and determination of an appeal, both parties and the appellate Court are bound by the Records of appeal, and cannot go outside the same to urge the appellate Court. See the case of Orok vs Orok (2013) LPELR – 20377 (CA); Garba Vs Omokhodion (2011) NWLR (pt.1269) 145; Salilu Vs RTEAN (2013) LPELR – 21820 (CA); Shettima Vs Goni (2012) 18 NWLR (Pt.1297)413 at 440.
In the case of Kazuare & Ors Vs Kafinta & Ors (2014) LPELR – 22901 (CA), it was held:
“The law is that the Record of Proceedings or of appeal is the only indication of what took place at the trial Court. It is always the final reference, when ascertaining the events and step by step happenings in the trial Court. Where the Records are incomplete or defective, in any way, there is a way the record can be challenged, to correct the error or defect…, See the case of Garba Vs Omokhodion (2011)15 NWLR (pt.1269) 145 at 180, where the Supreme Court said:
“A records of appeal/proceeding, having been duly compiled and transmitted, has to be authenticated and certified as prescribed by Law. Records of appeal are binding on the Court, the parties and their Counsel … no Court has the jurisdiction to go outside the Records to draw conclusions which are not support by the Court.” per. ITA GEORGE?MBABA, J.C.A.

LAND LAW: PLEDGE OF LAND; WHAT A PERSON ALLEGING PLEDGE OF LAND MUST PROVE

To prove a pledge of land, the person alleging same has a duty to prove the existence of such a contract, as pledge transaction is a form of contract. He must prove!
1. Offer of the property as pledge
2. Acceptance of the said property as pledge
3.Consensus ad idem on the transaction.
4. The consideration for the pledge
See the case of Iwuchukwu vs Anyanwu (1993) 8 NWLR (Pt 311)307.
In the case of Iroegbu vs Mpama and Ors. (2009) LPELR – 8510 (CA), It was held, that it is the duty of the person who alleges that a pledge, under native law, has taken place between him and the holder of the land, to prove the existence of the pledge transaction and if he cannot do so the claim fails. See also Akuchie vs Nwamadi (1992) 85 FCA 89;
In the case of Ihunwo vs Ihunwo & Ors. (2013) LPELR the Supreme Court, Per Ariwoola JSC held:
“…The onus is clearly on the plaintiff, this being a land case involving a declaration of title to land, to prove the existence of the type of pledge to which he owes the title of the land he claimed. In discharging the onus, the Plaintiff must rely on the strength of his case.” See Kodilinye vs Mbamefo Odu (1935)2 WACA 336; Okpala vs. Ibeme (1989) NWLR (Pt 102)208; Atuanyua vs Onyejekwe (1975)3 SC 115.NIn the case of Ndoro & Ors vs Planwii & Ors (2002) LPELR – 5482 (CA), it was held that to prove a pledge the person pledging the land must prove:
“his title to the land, then the pledge itself, the parties to the pledge, the witnesses, time and circumstance of the pledge and the consideration!
See also Onobruchere Vs Ezegine (1986) 1 NMLR (pt.19)799. per. ITA GEORGE?MBABA, J.C.A.

DAMAGES: SPECIAL DAMAGES; WHAT THE PLAINTIFF MUST PLEAD TO PROVE SPECIAL DAMAGES

The law is strict when it comes to proof of special damages, that the Plaintiff has a duty to plead and strictly prove every item of claim and the cost thereof, to succeed, whereas, general damages is presumed as being consequential flowing from the act of the defendant. See the case of Iwuagwu Ors Vs Uzoma Osigwe (2014) LPELR – 23781 9(CA); Chevron Nig Ltd. Vs UBA Plc (2005) 11 MJSC 69 at 73; Cameroon Airlines Vs Oluluizu (2011)4 NWLR (PT.1238) 512; Spring Bank Plc Vs Adekunle (2011)1 NWLR (Pt.1229)581. per. ITA GEORGE?MBABA, J.C.A.

JUSTICES

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

REV. JOHN IROAGANACHI Appellant(s)

AND

MR. OKECHUKWU MADUBUKO & ANOR Respondent(s)

ITA GEORGE?MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Abia State High Court in Suit No.HU/98/98, delivered by Hon. Justice K. 0. Amah wherein the learned trial Judge, on 23/3/2006, granted all the prayers of the Plaintiff (including the totality of the special and general damages), claimed and dismissed the Counter-Claim by the Defendants. Appellants were the Defendants at the Lower Court and had filed this appeal, being dissatisfied with the judgment.

At the Lower Court, the Respondent (as Plaintiff) had claimed for:
“(a) Five Hundred Thousand Naira (N500,000,00), being special and general damages for the Defendants’ acts of trespassing into the Plaintiff’s land known as and called “UZO OGBODI” land situate at AMACHARA UMUOPARA,UMUAHIA SOUTH within the jurisdiction of the Honourable Court, in March/April 1998.
“(b) Injunction, permanently restraining the Defendants, their agents, servants and/or workman from further trespass into the said land of the Plaintiffs.”

The case was heard on the pleadings filed by the two sides. The Plaintiff called two (2) witnesses and the Defendants called one in addition to the 1st

Defendant, who testified.

The Court adjourned the case for addresses by Counsel at the close of evidence. It was then that Defendants’ Counsel applied for leave to file a counter-claim and was allowed, the application, not having been opposed by the Plaintiff. The Counsel, thereafter, on 6/2/08, adopted their addresses and the case was adjourned for judgment, wherein the trial Judge held for the Plaintiff, thus:
?”In the final result, the Plaintiff has successfully discharged the burden of proof which lies on him in this case. On the balance of probabilities I am satisfied that he has proved damages and injunction which he alleged in the pleadings as well as the statutory Right of Occupancy over the land in dispute, which was, by operation of law put in issue in this suit. On the other hand the Defendants’ counter claim fails woefully pursuant to the reasons advanced above. I award in favour of the Plaintiff against the Defendants jointly and severally five hundred thousand naira (N500,000.00) being special and general damages for the Defendants’ act of trespassing into the Plaintiff’s land known as and called Uzo ogbodi’ situate at Amachara Umuopara Umuahia

delineated in Plaintiff’s plan, No.TNK/ABD/16/98 dated 31/8/98, received as Exhibit A in these proceedings.”

See page 107 of the Records of Appeal

Appellants filed this appeal against that judgment on 28/3/06, as per the Notice and grounds of Appeal on pages 108 to 117 of the Records of Appeal, disclosing 9 (nine) grounds of appeal. Appellants filed their brief of argument on 6/2/2007, which was deemed duly filed on 6/3/2007. They distilled five (5) issues for the determination of the appeal, as follows:
(1) Whether the trial judge was right when he held that the land in dispute was sold by Thomas Madubuko (late father of the 1st Defendant) to the Plaintiff. Grounds 3 and 5
(2) Whether the trial judge was right when he held that the land in dispute was not pledged to Plaintiff by Thomas Madubuko. Grounds 1 and 4
(3) Was the trial judge right in dismissing the Defendants Counter-claim by holding that “there is no evidence adduced by the Defendants in support of their Assertion that the land was pledged. Ground 6
(4) Was the trial judge right when he held that the Defendants trespassed into the land in dispute. Grounds 1 and 2.
?(5) Assuming the trial judge was right

in his finding that the Defendants trespassed into the land in dispute, is the award at five hundred thousand naira (N500,000) special and general damages against the Defendants, justified. Ground 7.

The Respondent filed his brief on 19/4/07, and donated three (3) Issues for the determination of the appeal, as follows:
(1) Whether the Respondent, qua Plaintiff proved his case and so entitled to the judgment delivered.
(2) Whether the transaction between the Respondent and the late Thomas Madukubo (father of the 1st Appellant and husband of the 2nd Appellant) was a pledge or an outright sale
(3) Whether the Appellants were justified when they entered the land in issue in 1998?

The Appellants filed a Reply brief on 3/5/2007 to contest points of law raised in the Respondent’s brief.

From the way Appellant’s Counsel related the grounds of appeal to the issues, donated by him for the determination of this appeal, it can be seen that grounds 8 and 9 were not related to any of the distilled issues and no issue was distilled from them. What that means is that Appellants had abandoned the grounds 8 and 9. They are accordingly, struck out. See African Petroleum Plc vs.

Aborisade & Anor. (2013) LPELR – 20362 (CA); Dakolo vs. Rowane Dakolo (2011)6 NWLR (Pt 1272) 22; INEC vs. Nyako (2011) 2 NWLR (Pt.1262)439; Ohaka vs Eze (2010) ALL FWLR (Pt. 526)380.

I also observed that Appellants distilled their issue 2 from grounds 1 and 4, and at the same time, distilled issue 4 from grounds 1 and 2. That cannot be legally possible, because, having combined the ground one with ground 4 to distill issue 2, ground one was no longer available to combine with another grounds(s) of the appeal to distill another issue for determination. See the case of Gov. of Imo State & Anor. Vs. Hon. Chief Athanasius Ogoh & ors: CA/OW/386/2014, delivered on 13/11/15, where it was held:
“It is a case of proliferation of issues, when Appellants relate issue 1 to grounds 2 and 9 of the appeal, and at the same time distill their issue 2 from the same ground 2, and 3, 5, 6 and 8. That is not all. The same grounds 3 and 5 which Appellants predicated their issue 2 are also used to distill issue 3… That is confusion galore, and a type of proliferation of issues, which are enough to spell doom to an appeal. See Amodu vs Commandant P.C.

Maiduguri (2009) 15 NWLR (Pt.1163) 75; (2009) LPELR – 467 (SC) where the Supreme Court held:
It is settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal, even though he can combine two or more grounds of appeal in formulating an issue for determination. See also Omega Bank Nig Plc vs OBC Ltd (2005)8 NWLR (Pt.928)547; Obosi vs. NIPOST (2013) LPELR 21397 (CA); Afribank Plc vs Yelwa (2011) ALL FWLR (Pt.585)295; Marcathy vs Tope (2012) ALL FWLR (Pt. 648)858.

I therefore strike out the ground 2 of the appeal and the issue 4, together with the arguments thereunder, as the same has been corrupted by the use of ground 1 (again) to argue it, jointly with ground 2. Issue 2 shall be saved, in the circumstance. (See SPDC vs. Registrar of Business Premises, Abia State (2015)3 C A R 433).

In the case of Barrister Orhar Jev & Anor. Vs. Sekan Dzua Iyortyyom & Ors (2014) NWLR (Pt.1428) 575 at 608, my lord, Okoro JSC said:
“I wish to say that this Court has, in a Plethora of decisions held that though one can validly lump several related grounds of appeal into one issue and argue same together, if any of

the grounds so lumped together is found to be incompetent, then it contaminates the whole issue and renders it incompetent, as the Court cannot delve into the said issue on behalf of the litigant and excise the argument in respect of the competent grounds from those of the incompetent grounds in the issue. The issues formulated for the determination of an appeal must be distilled from, or must arise or flow from a competent ground or grounds of appeal. Again, issues distilled from either incompetent grounds of appeal or a combination of competent and incompetent ground of appeal are in themselves not competent and are liable to be struck out. An incompetent ground of appeal cannot give birth to a competent issue for determination. See Akpan vs Bob (2010)17 NWLR (Pt 1223) 421; Amadi vs Orisakwe (1997) 7 NWLR (Pt. 511)161; Fagunwa & Anor vs. Adibi & Ors (2004) 7 SCNJ 322.”
Of course, it should be appreciated that when a ground of appeal, which is competent in itself, and earlier used to distill an issue for determination of an appeal, is again combined with another ground of appeal (which is competent on its face) to distill another issue for

determination of the appeal, that subsequent use of the same ground contaminates that second issue and that other ground of appeal!

Counsel, must therefore be careful and knowledgeable in the formulation of issues for determination and in relating the grounds of appeal to the issues for determination. See Gov. of Imo State & Anor. Vs Hon. Chief Athanasius Ogoh & ors. (supra)
In SPDC vs. Registrar of Business Premises, Abia State, (2015)3 C A R 433 at 448; it is held:
“It is noteworthy that Appellant’s Counsel had claimed that the issue 5 derived from ground one of the appeal. I think that was an error, as Appellant had already distilled Issue one from the ground one, and so that ground (1) was no longer available to distill another issue for determination. The law is that only one issue can distill from a single ground of appeal, though a combination of two, or more grounds of appeal can give birth to a single issue for determination. See Ossai vs. FRN (2012) LPELR 19669; (2013)13 WRN 87; Agodi vs Anyanwu Ors (2014) LPELR – 23746 (CA); Usman vs. New Nigerian Bank (2013) LPELR – 20404 (CA).”

I shall therefore consider this appeal on the

remaining issues, 1, 2, 3 and 5 distilled by the Appellants.

Arguing the appeal Dr. I.N. Ijiomah SAN, who settled the Appellants’ Brief, on Issue 1, (whether the trial Court was right to hold that the land was a sale not pledge) said the trial judge was wrong in his conclusion that:
“…The land in dispute verged green in Exhibit A was sold to the Plaintiff by late Thomas Madubuko in 1971.

He said the onus was on the Plaintiff to prove his assertion in the pleading, that the land was sold to him by Thomas Madubuko, father of the 1st Defendant and husband of the 2nd Defendant. He referred us to the pleadings on paragraph 3 of the statement of claim (pages 6 – 7 of the Records), as well as to evidence of the Plaintiffs on pages 36, 46, 47 and 56 of the Records, where he said that while PW1 talked about a sale of the land by 1st Defendant’s father to him, and tendered a receipt of sale (Exhibit B) , PW3, under cross examination, denied the said sale of the land in dispute, to Plaintiff by Thomas Madubuko; that the PW3 said:
“I know the land in dispute. To the best of my knowledge it was pledged basis, it was not sold. There was no receipt issued for the

land.” Page 56 of the Records.

Counsel said the above evidence by PW3 was evidence against interest, especially as the PW3 was one of those PW1 named as witnesses to the sale transaction. On what is evidence against interest, Counsel referred us to the case of Odi vs Iyala (2004) 27 WRN 1 at 21

Counsel said the trial Court was wrong to have rejected that evidence against interest by PW3, which contradicted the evidence of PW1; that the Court was wrong to pick and choose which of the contradictory pieces of evidence to believe and act on; that by the evidence of PW3, the Plaintiff failed to prove the claim of purchase of the land.

He added that, even the evidence of PW1, that the land was sold to him by Thomas Madubuko was fraught with cracks that rendered it unreliable. He referred us to his (PW1) claim that the negotiation for him to buy the land in 1971 took place in the house of one Ezuruike Onukogu, and they negotiated and agreed on, one hundred pounds, which he said he paid immediately, prepared the Exhibit B (receipt for payment). Counsel said Exhibit B was a typed document (receipt of payment), which PW1 said he typed. He wondered where it was typed

– whether in the same house of Ezuruike Onukogu! Counsel also wondered why the Plaintiff did not register the land transaction since 1971; that he bought it and did not convert it to formal agreement, as he did an earlier land transaction with the same Thomas Madubuko in 1966 (Exhibit C)!

Counsel further said that the Plaintiff did not prove that Exhibit B was made by the said Thomas Madubuko; he said that Exhibit B was a fake document; that PW3 alluded to that effect, when he said “There was no receipt issued for the land”.

Counsel said that Appellants did not deny the land sale in Exhibit C, which is another land 1st Defendant’s father sold to the Plaintiff in 1966, and the same was not in dispute; he submitted that the trial judge missed the issue about Exhibit C which was an agreement evidencing sale of land; he said that the due execution of the agreement could not be determined by comparing signatures on the said agreements but by the person alleging due execution of the agreement calling witnesses to the Agreement to attest to having seen the person executing such agreement, sign it; that this is the essence of witnessing the execution of

agreement. He said that the trial Judge was, therefore, wrong to compare the signature of 1st Defendant’s father on Exhibit B with that on the Exhibit C to arrive at his conclusion, that the same person who signed Exhibit B, signed Exhibit C. He urged us to resolve the issue for Appellants.

On Issue 2, Counsel said this has a converse relationship with issue 1, and should have been argued together, but was taken out, separately, to emphasise that Appellants have established their claim of pledge of the land. He relied on the earlier submissions under issue 1, on their claims that the land was a pledge. Counsel founded on the evidence of PW3, that the land transaction was on pledge basis. He said that since the PW3 was called by the Plaintiff (Respondent), who had also said he (PW3) witnessed the land transaction in 1971, PW3’s evidence was one against the interest of the Plaintiff, and accrued to the benefit of the Appellants (who were Defendants at the Court below). He again relied on the dictum of Tobi JSC, on evidence against interest, in the case of Odi vs Iyala (2004) 27 WRN 1 at 21:
“If a witness called by a party gives evidence against that party, the

evidence will be regarded as one against interest. See General 0jiegbe vs. Okwarinyia (1962) ALL NLR (Pt 4) 605. Unless explanation are given which satisfy the Court that admissions should not be regarded, due weight?should?be given to them as such. See Okai vs Ayikai (1946) 12 WACA 31.

Counsel said there was no explanation as to why Pw3’s evidence should be disgarded; that that evidence endured and the trial Court was wrong to explain it?away, as if he could pick and choose.?He relied again on the case of Odi Vs Iyala (2004) 27 WRN 1 at 23, where the Supreme Court said:
“Again, like PW3, PW4 is a witness of the Appellants. Was the trial Judge?in a position to pick and choose the evidence of PW1 and drop the evidence of PW3 and PW4? I think not. A trial judge in the judicial process, in his role which is generally likened to the unbiased umpire, is not entitled to pick only evidence which vindicates the case of the plaintiff and dump the evidence that is favourable to the Defendant. A trial judge has the duty to place the evidence in the imaginary scale of justice and see where the pendulum tilts in the measuring process. By our evidential rules, the judge

must give judgment in favour of the party, where the evidence tilts favourably?”

Counsel also relied on the case of Eze Vs Atasie (2000)9 WRN 73 at 81 on the conflicts in the evidence and pleadings of the Plaintiff (Respondent):
“To assess the strength of a plaintiff’s case, the pleading and evidence must be examined. If the evidence is at variance with the pleadings, such evidence will have no value. It will be discountenance because it is contrary to the issues joined and therefore goes to no issue worthy of consideration. See Ogboda Vs Adulugba, (1971)1 All NLR 68; Emegokwu Vs Okadigbo (1973)4 SC 113; Ige Vs Akoju (1994)4 NWLR (pt.340) 535? The obvious consequence is that such a plaintiff would have failed to lead evidence to support the particular issue in question…”

Counsel said the evidence of the Appellants, on the issue of pledge was consistent. He referred us to the evidence of DW1 (Page 58) and DW2 (Page 63) on the Records. He submitted that the plaintiff’s did not challenge the evidence on pledge, by cross examination; that the scanty’ cross examination on the issue by plaintiff”s Counsel was an admission of the facts therein. He relied

on Leaway Assurance Co. Ltd Vs Zeco Nig. Ltd (2004)22 WRN 1 at 12.

Counsel said that the evidence of PW3 supported the position of the Appellants and that the trial judge was wrong to have looked for reasons to discredit the evidence of PW3 which supported the Appellants; that the fact that Appellants had pleaded that PW3 (their uncle) was an enemy of their father, but he (PW3) came to Court to give evidence in their favour, should not disentitle them to benefit from?that evidence. He said that, if the evidence?of the plaintiff (PW3) supported the Appellants pleading, then the weakness of the plaintiff’s case strengthened the defence; that the Appellants had pleaded and led evidence to show that the land was a pledge and their position was supported by the Plaintiff’s witness (PW3). He urged us to resolve the issue for the Appellant.

?On issue 3, whether the trial Court was right to dismiss the counter-claim, saying there was no evidence in support of it by Defendants, Counsel adopted his argument on issue 2, and said that Appellants had led sufficient evidence in support of their assertion that the land was a pledge to the plaintiff by Thomas Madubuko (1st

Defendant’s father). He submitted that the plaintiff did not even file any defence to the counter-claim and the implication of that was that he did not contest the claim of the Appellant that the land was a pledge (not sale) by their father. He referred us to the nature of counter claim in a suit, relying on the case of Emaphil Ltd Vs Odili (1987) 4 NWLR (pt.67) 915 at 937-938 and submitted relying on the case of Aliligbe Vs Pauloso Nig. Ltd. (2006) 39 WRN 162 at 175 that:
“Once a counter claim is filed and served the plaintiff is expected to file his defence in reply. Where no defence is filed the facts averred in the Counter claim would be regarded as admitted.”

He urged us to so hold in this case, saying the trial judge was wrong in rejecting Appellant’s evidence of the counter-claim, which the plaintiff filed no answer in rebuttal.

On issue 5, Counsel submitted that considering their position that the land was a pledge and they were entitled to redeem it, and had made effort to do so, the trial Court’s findings that Appellants liable in trespass and the damages awarded were unjustified.

?Counsel noted that the plaintiff had pleaded special damages of

N400,000.00 and general damages of N100,000.00 in the pleadings (page 7 of the Records of Appeal) and he further broke down the special damages to “Four Thousand Stands of Cassava at N100.00 each = N400,000.00.”

Counsel said that at the trial the plaintiff contradicted himself as to the nature of the act of the Defendants that resulted in the said trespass; that in his evidence in Court, the plaintiff said that 1st Defendant destroyed 4000 stands of Cassava?(page 39 of the Records) but under cross examination he (PW1) said:
“It is true I reported case of stealing that is why the Committee did not look into the matter” (page 48 of the Records Counsel submitted that the above were contradictory and also contradicted the pleadings thereon. He referred us to the evidence of the DW1 on the issue of the alleged trespass, when he said:
“Plaintiff alleged before the Committee that I stole his cassava. They asked him to go to the Police. Plaintiff did not report me to the Police for stealing.” (Page 60 of the Records)”.

Counsel said the above evidence of DW1 was not challenged under Cross examination?and was therefore accepted.

Counsel submitted that the trial Court did

not make any findings as to the alleged damage or stealing of cassava; what was the Defendants’ act on the said cassava; that although plaintiff pleaded “vandalization of his crops” on the land, no other crop featured in his claim and none was mentioned in his pleadings or in his evidence. He also said there was no basis for the general damages.

He urged us to reverse the order for damages, as the plaintiff failed to prove any act of trespass, to justify the special and general damages of N500,000.00.

He urged us to allow the appeal and set aside the judgment of the trial Court, and in its place enter judgment for the Appellants on the counter-claim as per the reliefs sought therein.

The Respondent’s Counsel, Obi Chianakwalam Esq, on their issue one, said the Respondent had proved title to the land by purchase and by acts of long possession and enjoyment, as well as proof or connected or adjacent land in circumstances rendering it probable that the owner of such connected and adjacent land would, in addition, be the owner of the land in dispute. He referred us to the case of Okolie Vs Onyejuluwa (2000)10 NWLR (pt.676)450.

?On proof by purchase, counsel referred

us to paragraph 3 of the statement of claim, and to the evidence of PW1 on page 38 of the Record, where he said he paid the sum of 100 pounds to Thomas Madubuko (father of the 1st Defendant) and was issued with receipt (Exhibit B) to evidence the transaction; that the seller showed him (buyer) the boundaries of the land. Counsel said that evidence was neither challenged nor contradicted, under cross examination. He said that Appellants’ questions as to where, when and how the Exhibit B was prepared are both belated and inconsequential, as they were not raised at the trial. He argued that there was no allegation of forgery of Exhibit B by the Defendants and that the trial Court has made a finding that the maker (Thomas Madubuko) understood the content of the Exhibits (when comparing the Exhibit B with Exhibit C-another land transaction which he also had with plaintiff and which was not in dispute). Counsel relied on Section 8 (1) of the Land Instrument Registration Law, Cap 72, Laws of Eastern Nigeria 1963, and on the case of Odenigwe Vs Okoye (1973)3 ECSLR (pt.11) 850 at 851, to re-state the principle that:
?”When a person has executed a document by affixing his

signature, the law presumes that he is literate and that he understands the document to which he has put his signature.”

Counsel also said that the trial Court was right to compare the signatures of the Vendor (Thomas Madubuko) in the two Exhibits (B and C), especially as the Appellants had admitted that their father sold the land in Exhibit C and signed it, by writing his name “Thomas Madubuko” In Exhibit B, he wrote “T. Madubuko” Counsel relied on the case of Ezechukwu Vs Onwuka (2005) All FWLR (Pt.280)1514 at 1517; Ezeonwu Vs Onyechi (1996)3 SCNJ 250; (1996)3 NWLR (pt.438)499.

On the evidence of PW3, Counsel said the PW3 was treated by Counsel as a hostile witness; that he (PW3) had earlier testified at the native tribunal (arbitration) in favour of the plaintiff and so was subpoenaed to give evidence at the trial Court, since he was reluctant to come to Court?willingly?to testify. He said that he had sought the consent of the trial Court to tender the previous statement of PW3 on the issue to treat him as hostile witness, but the trial Court refused the application; and that unfortunately the proceedings relating to the above are missing from the Records of

Appeal. He argued that the PW3 had admitted that he had testified at the native arbitration. Counsel referred us to the evidence of PW2 (Eze J.N. Amechi) on page 49 of the Records, to expose the hostility of PW3 and the mischief in his (PW3) evidence; He said that PW2 had said:
“I summoned the parties. I and my cabinet, looked into the matter. We sat over the matter for four days. The defendants appeared for the matter in two occasions. I looked into the matter and delivered judgment. I know one Chief Dennis Onukogu, a relation of the defendant. He was a witness to the Plaintiff. He is still alive. He (sic) gave a written judgment.”

Counsel said the above evidence was neither challenged nor contradicted, under cross examination at the trial. Counsel said the trial Court was wrong to have refused to admit the earlier statement by PW3 at the native tribunal. Counsel urged us to admit the alleged previous statement by the PW3 at the PW2’s panel, which he said was summed up as follows:
“Chief Dennis Onukagu – one of the brothers of late Thomas Madubuko and a witness to Rev. John Iroganachi was called in to testify on what he knew about the disputed UZO OGBODI

LAND: He said Onukogu Ezurike and Moses Onukogu were senior brothers to Late Thomas Madubuko whom he invited to witness the sale of this land to Rev. Iroaganachi. He continued that he was himself physically present and witnessed when the land was sold at one hundred pounds ($100.00) paid on agreement dated 12th August 1971.”

Despite the error of the trial Court to admit the previous statement of the PW3, Counsel said the trial Court still made findings to the effect that PW3, DW1 and DW2 evidence, as to the land being a pledge was unacceptable. See page 105 of the Record. He urged us to accept this findings, relying on Ohanaka Vs Achugwo (1998)9 NWLR (pt.564) 37 at 42, that “Since the trial Court is the Court that sees and hears witnesses, it is within its exclusive province to believe or disbelieve a witness or pieces of evidence.”

Counsel also relied on GTB PLC VS Fadco Industries Ltd. 2005) All FWLR (pt.287)913 at 920 to state the Law that:
“If a trial Court has not examined an exhibit thoroughly, the Court of Appeal is entitled and is indeed enjoyed to do so and make a finding on it.”

Counsel founded on Respondent’s proof of acts of long possession and

ownership of adjacent or connected lands to the land in dispute to urge us to resolve the issue for the Appellant.

On issue 2, whether the land was a pledge, Counsel relied on the submissions on issue 1 and said that the land was a sale, and relied on the Exhibit B. He relied on the case of Anwasi Vs Chabasaya (2000)6 NWLR (pt.661) 408 at 410 on the ingredients of a valid sale. He also relied on the Evidence PW1 and on the case of Ebevuhe Vs Ukpakara (1996)7 NWLR (pt.460)254 at 258 which held that:
“Where a defendant admits that a plaintiff is in possession of a land in dispute although by a pledge, which the plaintiff strongly denies, the onus of proof shifts, to the defendant to prove the pledge.”

Counsel relied on the case of Iwuchukwu Vs Anyanwu (1993) 8 NWLR (pt.311)307 as to the definition of pledge; that evidence required to prove a pledge include existence of offer, acceptance, consensus ad idem on the same and other formal parts of contract; that Appellant had failed, woefully to discharge the onus of proof of same. He relied on Isokwa Motors Nig. Ltd Vs UBN (1996)9 NWLR (pt.471) 131.

On issue 3, whether Appellants were justified, when they entered the

land in 1998, Counsel and the Appellants admitted the trespass when 1st Appellant said on page 62 of the Records:
“I am now in possession of the land in dispute because every effort to?by me to redeem the land?failed.”

Counsel queried which Appellants could do that, even assuming the land was a pledge (which he did not concede).

Counsel also referred us to page 56 of the Records, where DW1 said:
“I have not redeemed the land not withstanding several attempts I have made to do so.”

He (counsel) referred to the evidence of PW2, who said:
“Under Umuopara custom, when pledged land money is tendered to the pledged (sic, i.e pledgor) who refused to accept the money, the land is taken to have been redeemed.” Page 49 of the Records.

Counsel argued that the above custom was not applicable to Amachara, as Appellants had said they made several attempts to redeem the land but failed. Therefore they had no reason to take over the land, forcefully, as the Appellant boasted.

He urged us to resolve the issues against the Appellants and dismiss the appeal.

RESOLUTION OF ISSUES
I think the 1st and 2nd issues by the Appellants (and 1st and 2nd by the Respondent) can appropriately by

treated together or fused. I shall therefore consider the appeal on the following issues, framed by me:
1) Was the trial Court right to hold that the land in dispute was a sale (not a pledge) by 1st Appellant’s father to the Respondent, considering the evidence of the PW3 who said “To the best of my knowledge it was pledge basis, it was not sold…?
2) Was the trial Court right in dismissing the Counter-claim, in the circumstances of this case?
3) Was the award of N500,000.00 special and general damages, justified?

I think the crucial issue to consider under the issue one above is the place of the evidence of PW3 in the whole drama of the trial of the case at the Lower Court. The Appellants’ Counsel had urged us to hold that the evidence of PW3, who turned against the party that called him was evidence against interest relying on Odu Vs Iyala (2004) 27 WRN 1.

The Respondent’s Counsel appeared to have understood the damaging nature of that piece of evidence by PW3 and so urged us to see him as a hostile witness. He also wanted us to hold that the trial judge was wrong to have refused his application to produce a previous statement of the PW3 (when he

testified at the Native Arbitration, before a panel headed by PW2, by which time he sided with the plaintiff/Respondent), that the land was sold by his brother (Thomas Madubuko) to the Respondent. And by that time the Appellants had seen him (PW3) as their father’s enemy who can never say any good thing about their father and them.

Respondent’s Counsel had urged us to admit the said previous statement by PW3 at the Native Arbitration, as he (Counsel) reproduced it in the Respondent’s Brief.

?I am unable to see or understand the basis with which the learned Counsel wants us to admit the alleged statement by PW3 at the Arbitration. The said statement, which Counsel said was refused as exhibit by the trial Court, is not recorded anywhere in the Records of Appeal before this Court. The Respondent did not file any cross appeal against the refusal to admit the document. Counsel for Respondent even argued, that all the proceedings relating to how the Respondent sought to tender that statement, and the refusal by the trial Court to admit it are missing in the Records of appeal, compiled and transmitted to this Court by the Appellants, and that neither the Respondent nor

his Counsel was invited at the compilation of the Records of Appeal.

Those complaints do not appear to be enough to excuse the learned Respondents Counsel attempt, to smuggle in some information in the Respondents brief and urge this Court to admit as exhibit of what transpired at the said Native Arbitration, which the man (PW2) who presided said their judgment was in writing. Why did they not tender the judgment of the Native Arbitration, through PW2, when he gave evidence? And why did the Respondent not compile and transmit additional Records of appeal to this Court on seeing that the Appellants had omitted vital information from the Records before this Court, including the proceedings relating to the declaration of PW3 as hostile witness and the Arbitration judgment?

Order 8 Rule 6 of Court of Appeal Rules 2011 says:
“Where the Respondent considers that there are additional records which may be necessary in disposing of the appeal, he shall be at liberty, within 15 days of the service on him of the Records, to compile and transmit to the Court such records, to be known as the additional records of appeal.”

Of course, in the hearing and determination of an

appeal, both parties and the appellate Court are bound by the Records of appeal, and cannot go outside the same to urge the appellate Court. See the case of Orok vs Orok (2013) LPELR – 20377 (CA); Garba Vs Omokhodion (2011) NWLR (pt.1269) 145; Salilu Vs RTEAN (2013) LPELR – 21820 (CA); Shettima Vs Goni (2012) 18 NWLR (Pt.1297)413 at 440.
In the case of Kazuare & Ors Vs Kafinta & Ors (2014) LPELR – 22901 (CA), it was held:
“The law is that the Record of Proceedings or of appeal is the only indication of what took place at the trial Court. It is always the final reference, when ascertaining the events and step by step happenings in the trial Court. Where the Records are incomplete or defective, in any way, there is a way the record can be challenged, to correct the error or defect…, See the case of Garba Vs Omokhodion (2011)15 NWLR (pt.1269) 145 at 180, where the Supreme Court said:
“A records of appeal/proceeding, having been duly compiled and transmitted, has to be authenticated and certified as prescribed by Law. Records of appeal are binding on the Court, the parties and their Counsel … no Court has the jurisdiction to go

outside the Records to draw conclusions which are not support by the Court.”

But was the trial Judge right in the way he treated the evidence of the PW3, when he said, on page 105 of the records of Appeal:
“DW1, Okechukwu Madubuko said that he is now in possession of the land in dispute, which he has NOT YET redeemed. PW3, Chief Dennis Onukagu (sic), Unde (sic) to the late father of 1st Defendant, Thomas Madubuko told the Court that the land in dispute was not sold but pledged. In paragraph 7 of the statement of defence the Defendants stated that PW3, Dennis Onukaogu could not have been a fair witness in anything concerning 1st Defendant’s father. Why should Thomas Madubuko, who sold a piece of land (not in dispute) in 1966 to the Plaintiff, turn round to pledge, instead of selling another piece of land, the land in dispute to the Plaintiff in 1971. I do not accept the evidence of PW3. DW1 and DW2 that the land in dispute was pledged to the Plaintiff in 1971 by Thomas Madubuko. Exhibit ‘C’ is an agreement for sale of free hold while Exhibit B is a purchase receipt dated 4/3/66 and 17/8/71, respectively, made by Thomas Madubuko in favour of the Plaintiff. A

purchase receipt, being an unregistered instrument is an acknowledgment of the payment of money, coupled with the plaintiff being in possession, raised presumption that he (Plaintiff) entered into possession under a contract of sale. Defendant failed to rebut this presumption.”

The case of Odi vs Iyala (2004) 27 WRN 1 at 2, heavily relied upon by the Appellants, is however quite instructive in this circumstance. It says:
“If a witness called by a party gives evidence against that party, the evidence will be regarded as one against interest … unless explanations are given which satisfy the Court that admissions should not be regarded, due weight should not be given to them as such, See Okai vs Ayikai (1946)12 WACA 31. Where a witness called by a party gives evidence against his interest, our adjectival law requires the party to urge the Court to declare him a hostile witness for purpose of cross examination. This is to enable the party discredit the evidence of the witness and reject the evidence. See Ilouno vs Chiekwe (1991) 2 NWLR (Pt.173)316; Udoh vs. The State (1994)2 NWLR (Pt.329)666; Federal Housing Authority vs Sommer (1986)1 NWLR (Pt 17)533.”

Was or

is there any satisfactory explanation given in this case, for the trial Court, or this Court to treat the evidence of PW3 (sudden somersault or change of position with regards to how the Plaintiff had the land from Thomas Madubuko) with disbelief and to disregard the admission by PW3, and place scant value or weight to it?

Authorities are replete that “The ascription of probative value to evidence is primarily that of the Lower Court and the interference by an Appeal Court on findings of fact is limited to a very narrow dimension.” Where there is no special circumstance or justification on the printed records for interfering with the findings of facts made by the trial Court, Appeal Court must attach the greatest weight to the opinion of the trial judge who had the duty to see and indeed had seen and heard the witnesses and noted their demeanour. The Appeal Court must not disturb the findings of fact of the trial, except such findings are unsound. See Anyanwu vs. Mbara & Ors. (1992) LPELR ? 516(SC); (1992) NWLR (Pt212)386; Omoregie vs Idungiemwany (1985)2 NWLR (Pt.5)41 at 42

Counsel had argued that the PW3 was declared a hostile witness by Plaintiff’s

Counsel, who had sought the permission of the trial Court to admit a previous statement of PW3 on the land issue, where he admitted before a Native Arbitration that Thomas Madubuko actually sold the land to the Plaintiff in 1971, but the trial Court refused to admit the document. I had earlier held that the Respondent did not cross appeal against that refusal and that the records thereto are not before us. But there are copious evidence in the Records to show that PW3 had testified before the Native Arbitration, headed by PW2 and that he (PW3) gave evidence in favour of the Plaintiff over the land. That was what made the Plaintiff to subpoena PW3 to come and give evidence. The Defendants were even apprehensive of the evidence the PW3 would give and so pleaded ahead of time, that their (Defendants’) Uncle, (PW3) will not give evidence to favour them, because
“…Dennis Onukaogu – 1st Defendants’ relation, who is an arch enemy of 1st Defendants’ father and remained so from 1956 to the death of Thomas Madubuko of course he did not attend the burial. He could not have been a fair witness in anything concerning 1st Defendant’s father …1st

Defendant, in pursuance of peace, even sent Mr. Kanu Nwokeafor to the Elder brother of (Plaintiff) but Plaintiff failed to co-operate.”

See paragraph 7 of the statement of defence on page 14 of the Records of Appeal.

That averment was in reaction to paragraph 7 of the Plaintiff’s statement of claim, which said:
“? The plaintiff avers that in 1996 he cultivated the land as usual. The 1st Defendant sent one De Kanu Nwokeafor to the Plaintiff to find out how the Plaintiff came about farming the land. The Plaintiff made it clear to De kanu Nwokeafor that he bought the land from Thomas Madubuko and referred him to Mr. Chukwumaobi Iromuanya and Chief Dennis 0. 0nukaogu, who witnessed the sale. The 1st Defendant later came to the Plaintiff to inquired how the Plaintiff came about the land and the Plaintiff repeated the sale transaction with the 1st Defendant’s father to the 1st Defendant?”

See page 7 of the Records of Appeal.

?The evidence of PW1 on page 39 of the Records agreed with the above pleading, when he said that in 1996 one Kanu Nwokafor sent for him and enquired how he held the land belonging to Thomas Madubuko, that the son of Thoma Madubuko said

that the land was pledged to him (Plaintiff) and he (Plaintiff) answered it was not true; rather the land was a sale and he Nwokafor believed and did not even ask for the receipt, and promised to meet 1st Defendant to find out what he (1st Defendant) wanted. He added that when 1st Defendant entered the land in 1996 to cause damage he (Plaintiff) reported the matter to Amachara Welfare Association; they invited 1st Defendant but he refused, the traditional Ruler (Eze Amachi) also invited 1st Defendant and he refused to appear before the Eze. He added that Chief Dennis Onukaogu was one of these who witnessed the sale.

On page 45, under cross examination, PW1 said:
“1st Defendant come (sic) to me in 1996 to ask me the steater (sic) of the land and not to redeem it. He came to me to find if the land was pledged to me or sold to me. Kanu Nokofor (sic) came to me to find out if I bought the land or whether it was pledged to me. I told he (sic) I bought the land in 1971? There was receipt covering the land in 1971?

PW2, the traditional ruler (Eze Amaechi) had also told the trial Court:
“Parties in this suit are my subjects. I settled a land case between

the Plaintiff and the Defendants. The Plaintiff reported the matter to me, I summoned the parties. I and my cabinet looked into the matter and delivered judgment. I know one Chief Dennis Onukogu, a relation to the Defendants. He was a witness to the Plaintiff. He is still alive. He (sic) gave written judgment.” (page 49 of the Records)

Under cross examination, he said:
“?The defendant never told me not to look into this matter for them. My mother comes from the Plaintiff’s compound. I am not aware that the defendants petitioned against me to the chairman of Ndi Eze in Abia State. Defendants had never, to my knowledge, said that I am hostile to them.” Page 50 of the Records.

PW3 admitted testifying before PW2’s panel. He said:
“I know the land called ‘Uzo Ogbodi.’ The land in dispute was awarded by Thomas Modubuko. The dispute over the land in dispute was formerly looked into by Eze J.N. Amaechi, between the Plaintiff and the Defendants. I gave evidence to the arbitration. I am not aware if the proceedings was reduced in writing” Page 52 of the Records

On his relationship with 1st Defendant’s father and whether any land was sold by Thomas Madubuko to

Plaintiff, PW3 said, on page 52:
“I know the Plaintiff very well. I know the Defendants very well. The 1st Defendantis my cousin 2nd Defendant is my late Uncle’s wife. My late Uncle was Thomas Madubuko. He was the father of 1st Defendant and husband of 2nd Defendant. I do not know when Thomas died. My relationship with Thomas, before he died, was very cordially. It is not true that I was an enemy to Thomas. I do not know if he was literate but he could sign signature if I see it. I do not know any piece of land late Thomas sold to the Plaintiff and one other for son. I know one late Onyekwere Modubuko who(sic) a senior brother to late Thoma Madubuko. I am not aware that subject matter in Exhibit C was sold by Thomas and Onyekwere to the Plaintiff and his brother Joseph…”

It is really difficult to understand why the PW3 suddenly elected to confound both the Plaintiff and the Defendants by giving evidence that compromised his known earlier position on the land case, to mess up the case of the Plaintiff, and to warm himself to the embrace of the Defendants, who had deposed that he was an arch enemy of their family and would never be a fair witness in anything

concerning them.

PW3 even denied the evidence which the Defendants admitted ? like the fact that the land in Exhibit C was sold by the father of 1st Defendant to plaintiff in 1966, a fact wholly admitted and that portion of land was not in dispute; he however admitted that Thomas Madubuko and Plaintiff had a land transaction in 1971 in respect of the land in dispute, he alleged it was on the basis of pledge and claimed there was no receipt issued for the land. And as if to prepare grounds for the rejection of the proceedings at the Native Arbitration (before PW2), wherein he testified for Plaintiff, he (PW3) said the Panel was biased against the Defendants and that the Defendants walked out of the panel. He also said he was not aware the proceedings at the Arbitration was recorded.

But the record of transaction between the said Thomas Madubuko and the Plaintiff over the land in dispute in 1971, produced in Court (Exhibit B) disclosed a sale of the land for 100 pounds (not a pledge). And it carried the signature of Thomas Madubuko. Another Record of land transaction between the said Thomas and Plaintiff, with a similar signature of the said Thomas, entered

in 1966 (Exhibit C) was also about a sale, which the Defendants admitted (whereas PW3 said nothing like that existed).

It is quite unfortunate that the Plaintiff called such a mischievous person, as his witness, and could not have forseen the damage he was capable of. But I think, as the learned trial Judge, who had the privilege of seeing, hearing and noting the demeanour of PW3, held, explanations abound to justify the Court’s disregard of PW3’s evidence, which would have been clear evidence against interest. In my opinion, the trial Court was right in treating it with scant weight or with no probative value, in the circumstances, as PW3 was obviously a hostile witness in that situation.

Did the Appellants prove the alleged pledge transaction?

I am afraid the Appellants made no effort to prove their allegation that the transaction over the land was a pledge. Neither PW3 nor Appellants gave any evidence on particulars of pledge of the land, which they all admitted the Plaintiff was in possession of, since 1971, i.e. 20 years, before Thomas Madubuko died in 1991. There is evidence that 1st Defendant, who was the aggressor, even sent people (Kanu Nwokeafor) to

enquire how Plaintiff came about the land. He also met Plaintiff to make findings on how he came by the land, and in 1996, forcefully, entered the land to disturb Plaintiff’s possession and boasted that he entered after attempts to redeem it, failed. Those were not the mannerism of a man who assert a pledge of land.

I think 1st defendant was gambling. Even if his allegation that the land was a pledge were correct (which is not conceded), was he entitled to enter the land, forcefully, without redeeming it? Of course the answer is Capital “N0!”

He did not take out any suit, either before traditional arbitration or in Court, to compel the Plaintiff to allow him (Defendant) to redeem the land, if he was sure the transaction about the land was a pledge. I believe that should be the action of one seeking to redeem a land from one in possession. He resorted to self help, an indication that he had no proof that the land was a pledge.

pledge
3.Consensus ad idem on the transaction.
4. The consideration for the pledge
See the case of Iwuchukwu vs Anyanwu (1993) 8 NWLR (Pt 311)307.
In the case of Iroegbu vs Mpama and Ors. (2009) LPELR – 8510 (CA), It was held, that it is the duty of the person who alleges that a pledge, under native law, has taken place between him and the holder of the land, to prove the existence of the pledge transaction and if he cannot do so the claim fails. See also Akuchie vs Nwamadi (1992) 85 FCA 89;
In the case of Ihunwo vs Ihunwo & Ors. (2013) LPELR the Supreme Court, Per Ariwoola JSC held:
“…The onus is clearly on the plaintiff, this being a land case involving a declaration of title to land, to prove the existence of the type of pledge to which he owes the title of the land he claimed. In discharging the onus, the Plaintiff must rely on the strength of his case.” See Kodilinye vs Mbamefo Odu (1935)2 WACA 336; Okpala vs. Ibeme (1989) NWLR (Pt 102)208; Atuanyua vs Onyejekwe (1975)3 SC 115.
In the case of Ndoro & Ors vs Planwii & Ors (2002) LPELR – 5482 (CA), it was held that to prove a pledge the person pledging the land must prove:
“his

title to the land, then the pledge itself, the parties to the pledge, the witnesses, time and circumstance of the pledge and the consideration!
See also Onobruchere Vs Ezegine (1986) 1 NMLR (pt.19)799.

Appellants did not plead any particulars of the alleged pledge, when it took place, who witnessed it, the consideration and circumstance of the same. Even when they filed their strange counter-claim, after the close of the Respondent’s case (and at the time of addresses by Counsel), they did not state when and how the alleged pledge was arrived at, the consideration for same and the witnesses and circumstances thereof. They pleaded that 100 pounds which Respondent paid for the land was equivalent of N100, as the redemption fee! See paragraphs 3 and 8 of their pleading pages 13 and 14 of the Records.

I think they only tried to be smart, to take undue advantage of the unexpected evidence of PW3 at the trial. They merely averred (in the counter-claim):
“(2) The Defendants relies (sic) on all averments and matters set out in paragraphs 2 (a), (b), (c), (d),(e), 3 (a), 4, 5, 6, 7, 8, 10,11,12 of the statement of defence mutatis mutandis as the basis of their

Counter-claim in this suit.
Whereof, the Defendants Counter-claims (sic) against plaintiff as follows:
(a) A declaration that Defendants have right of redemption of the said land subject matter of this suit.
(b) An Order that plaintiff should accept an equivalent of 100 pound in Naira from the Defendants, being money for the redemption of the said land in dispute.”

As it were, the above Counter-claim, filed at the close of the Respondent’s case, did not enjoy the benefit of any trial as no evidence was adduced on it after the filing. Appellants could not have relied on Respondent’s case to found the said Counter-claim, without adducing evidence on it. The Counter claim is deemed to have been abandoned, after filing, as Appellants only went on to address the Court, based on the evidence in the Respondent’s case.

Of course, the 100 pounds which the Appellants referred above was the very amount the Plaintiff had pleaded and led evidence on, as the price of the land or the amount he paid to the father of 1st Defendant to buy the land and the said amount was what the father of Defendant had acknowledged as per Exhibit B, as the payment for sale of the land!

?It is interesting

to note that the Exhibit C, which Appellants had admitted as the transaction of an earlier sale of land by their father (Thomas Madubuko) in 1966, was also in respect of a sale! I therefore agree with the inference made by the trial Court on the matter.

It appears clear to me that Appellants, in their pleading and evidence, were merely speculating on the issue of the land being a pledge, as they led no credible evidence to prove it. They had a duty to established their said claim, on the strength of their case, and did not have to rely on the misguided evidence of PW3, that is, the purported weakness of the defence. See the case of Obiazikwor Vs Obazikwor (2007)27 WRN 106 at 132, where this Court held:
“Contradictions in the evidence of a defendant, who by pleadings had not the initial burden to prove his case, can only be material in the determination of case, if the plaintiff has, in the first place proved his case. Where a plaintiff has not proved his case, contradictions in the evidence of the defendant will not avail, to help the Plaintiff in sustaining his claim.”
See also the recent decisions of this Court in the case of Okorieocha & Anor Vs Emereni

& Ors.CA/OW/233/2012, delivered on 10/2/16; Ogbuka Ogbuka & Ors Vs Okoro Awa & Anor: CA/OW/378/2013, delivered on 17/2/16.
In this case the Appellants, who alleged the land was a pledge, were the Plaintiffs in the counter-claim, and had the duty of establishing their said claim, on the strength of their own case. Eyo Vs Onuoha (2011) 3-4 MJSC 46 at 71; Agboola Vs UBA & 2-3 MJSC (pt.11) 150; Nwokorobia Vs Nwogu (2009)10 NWLR (pt.1150).I resolve this issue against the Appellants too.

On issue 3, whether the N500,000.00 special and general damages, awarded by the trial Court, was justified, Appellants had argued that five hundred thousand Naira (500,000.00) which the trial Court awarded to the Plaintiff was the total financial claim the plaintiffs made for special and general damages in the case. They also argued that the Plaintiffs did not prove the special damages, of which they claimed N400,000.00 for 4000 stands of cassava, at N100.00 each, and which he claimed, were vandalized.

Counsel for the Appellants had argued that, while the Plaintiff, in his evidence in-chief, said that the said cassava were destroyed by the 1st Defendant, under cross

examination, he admitted he lodged a report of stealing of the cassava against the 1st Defendant, when he reported the Defendants to the Committee that tried to settle the dispute, and that was why that Committee did not look into the matter.

The trial Court has the sole discretion to determine the quantum of damages awardable, in general damages, and in a case of trespass to land, the general damages follows automatically and need not be pleaded and/or proved. See Ogbonna Vs Ogbonna (2014)23 WRN 48; Harsaalic Ind. Ltd Vs Usang (2003) FWLR (pt.149) 1563; Oriorio & Ors Vs Osain & Ors (2012) LPELR – 7809 (SC); Osuji Vs Isiocha (1989)3 NWLR

(pt.111)623; Ogah Vs Gidado & Ors (2013) LPELR – 202598.

Appellants in this case had confessed, boldly, that they entered the land in peaceful possession of the Plaintiff, when every effort to redeem it, failed. That was trespass because, even if the land had been held on pledge, Appellants had no right to forcefully enter it, to recover possession, without first redeeming the land.

But the plaintiff did not lead any evidence to prove the alleged special damage. He did not establish the destruction or stealing of 4000 stands of cassava and/or the cost of each stand at N100. To that extent the claim of N400.000.00 as special damages for 4000 stands of cassava, failed.

I hold that the appeal against the special damages of N400,000.00 succeeds. The Respondent was therefore entitled to only general damages, which the trial judge had awarded in full, that is, the N100,000, claimed.

I therefore resolve the issue three (3) for the Appellants, in part, and set aside the award of N400,000.00 as special damages to the Respondent.

On the whole, I hold that the appeal is unmeritorious, except with respect to the award of N400,000 special damage. It is accordingly

dismissed as a I affirm the decision of the trial Court, except the award of N400,000.00 as special damages which I have struck out, leaving only the N100,000.00 general damages for trespass.

Appellants shall pay the cost of this appeal assessed at Forty Thousand Naira (N40,000.00) only?to the Respondent.

PETER OLABISI IGE, J.C.A.: I have been afforded opportunity to read before now the Judgment just delivered by my Lord. ITA G. MBABA, JCA.I agree with the conclusion reached in the judgment.

?FREDERICK O. OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered my learned Brother, ITA GEORGE MBABA, JCA. I am in agreement with the reasoning and conclusions in adjudging this appeal as lacking in merit. I also abide by all the consequential orders made thereto.

Appearances

DR. I.N. IJEOMAH, SAN with him C. N. NWOKORIE ESQ and CHIKA ODIGBO ESQFor Appellant

AND

OBI CHIANAKWALAM ESQ., with ADA IHEJIRIKA (MRS)For Respondent