SAMUEL OLATUNJI & ORS v. ELDER JOSEPH AYENI (2019)

SAMUEL OLATUNJI & ORS v. ELDER JOSEPH AYENI

(2019)LCN/13552(CA)

In The Court of Appeal of Nigeria

On Monday, the 24th day of June, 2019

CA/EK/45/2018

RATIO

LOCUS STANDI: DEFINITION

What does Locus Standi denote?
Going by settled judicial authorities, the term Locus Standi denotes legal capacity to institute proceedings in a Court of law. The fundamental aspect of Locus Standi is that it focuses on the party seeking to get his complaint laid before the Court. See OJUKWU VS OJUKWU (2008) LPELR 2401, ADESANYA VS PRESIDENT FRN (1981) LPELR 147.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

LOCUS STANDI: TO MAINTAIN AN ACTION IN TRESPASS
Locus Standi to maintain an action in trespass in the con of this case, means the same thing as sufficient right and/or interest to maintain an action for acts of trespass ?See OGUNSANYA VS DADA (1992) 4 SCNJ Pg. 162 GOMBE VS PW (NIG) LTD (1995) 7 SCNJ Pg. 19, ADETONO VS ZENITH INT.L BANK PLC (2011) LPELR 8237, RHODES-VIVOUR JSC in DANIEL VS INEC (2015) LPELR 24566 held-
Locus Standi denotes the legal capacity to institute proceedings is Court. It is a threshold issue that goes to the root of the suit. On no account should the merits of the case be considered before Locus Standi is decided. Locus Standi affects the jurisdiction of the Court. Consequently, if the party does not have Locus Standi to institute the suit the Court would have no jurisdiction to entertain the suit. Usually it is the party that is questioned as to whether he has Locus Standi
See NURSES ASSOCIATION VS A. G. (1981) 11-12 SC Pg. 1; THOMAS VS OLUFOSOYE (1986) 1 NWLR Pt. 18 Pg. 669; PACERS MULTI DYNAMIC LTD VS MUD DANCING SISTER (2012) 1 SC Pt. 1 Pg. 75; BB APUGO & SONS LTD VS OHMB (2016) LPELR 40598.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

JURISDICTION: THE IMPORTANCE TO BE ACCORDED TO JURISDICTION BY THE COURTS
The question of jurisdiction is very fundamental that it should be determined first by the Court before starting any proceedings. If the Court proceeds without jurisdiction, all proceeds however, well conducted amount to a nullity. It is trite law that the issue of jurisdiction can be raised at any time by a party even on appeal in the Supreme Court. However, it is important to note that issues of jurisdiction must be raised timeously and resolved first before embarking on further proceedings UKWU VS BUNGE (1997) 8 NWLR Pt. 518 Pg. 527 SERVE NIG LTD VS UBN PLC (2000) 12 SC Pt. 11 Pg. 133; A. G. LAGOS STATE VS DOSUNMU (1989) 3 NWLR Pt. 111 Pg. 552; NNONYE VS ANYICHIE (2005) 2 NWLR Pt. 910 Pg. 625.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

FAMILY PROPERTY: WHO CAN SUE TO PROTECT FAMILY PROPERTY
However, a member of a family has capacity to sue to protect family property. Indeed any member of the family whose interest is threatened by the wrongful alienation or wrongful interference with the family property can sue to protect his interest, whether with the consent or without the consent of the other members of the family. For if he does not act he may find himself being held to be standing by when his rights were being taken away. MOZIE VS MBAMALU (2006) 15 NWLR Pt. 1003 Pg. 466; EZEKUDE VS ODOGWU(2002) 8 NWLR Pt. 784 Pg. 366.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

TRESPASS: WHAT A PARTY MUST PROVE

In an action for trespass all that a party is required to prove in Court is not title to the land in dispute but exclusive possession of the land on which trespass has been committed. ADEGBITE VS OGUNFAOLU (1990) 4 NWLR Pt. 146 Pg. 578; OGUNBIYI VS ADEWUNMI (1988) 5 NWLR Pt. 93 Pg. 215.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

LAND LAW: WHAT A PARTY RELYING ON TRADITIONAL HISTORY MUST PROVE

In law, it is not sufficient for a party who relies on traditional history for proof of title to land to merely plead that he, and before him, his predecessors-in title had owned and possessed the land from time beyond human memory. He must indeed, plead and prove the following:
(a)Who founded the land?
(b) How the land was founded
(c) The particulars of the intervening owners through whom he claims. EZEOKONKWO VS OKEKE (2002) 6 NWLR Pt. 777 Pg. 44.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

LAND LAW: WHAT A PARTY PLEADING TRADITIONAL HISTORY MUST NARRATE

In pleading traditional history in a claim for declaration of title the plaintiff, is expected to narrate the genealogical traced from the original owner, the ancestor, in generations appurtenant to him, down the line to the plaintiff. In other words, he must prove who founded the land, in what manner the land was founded and the circumstances leading to it. And the successive persons to whom the land thereafter devolves through an unbroken chain or in such a way that there is no gap which cannot be explained. ODI V IYALA (2004) 8 NWLR Pt. 875 Pg. 283; EWO V ANI (2004) 3 NWLR Pt. 861 Pg. 610.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

LAND LAW: WHERE A PARTY TO A LAND DISPUTE HAS DIRECTLY TRACED HIS TITLE TO A PERSON WHO TITLE TO THE LAND HAS BEEN EXTABLISHED

However, where a party to a land in dispute has directly traced his title to a person whose title to ownership had been established, it would not be necessary for him to prove his ownership of the said land. BUNYAN V AKINGBOYE (1999) 7 NWLR Pt. 609 Pg. 31.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

LAND LAW: DECLARATION OF TITLE TO LAND: A PARTY WHO SEEKS DELCARATION OF TITLE TO LAND MUST PROVE HIS ROOT OF TITLE TO THE LAND

A Plaintiff who seek declaration of title to land must prove his root of title to the land. Where he traces his title to a particular person, he must further prove how that person got his own title or came to have the title vested in him, including, where necessary, the family that originally owned the land. The burden of proof on the Plaintiff is not discharged even where the scales are every weighted between the parties.DIKE VS OKOLOEDO (1999) 10 NWLR Pt. 625 Pg. 359, OTANMA VS YONDUBAGHA (2006) 2 NWLR Pt. 964 Pg. 337.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

LAND LAW: THE IMPORTANCE OF ACTS OF LONG POSSESSION AND ENJOYMENT OF LAND IN LAND DISPUTES

In law, sometimes, acts of long possession and enjoyment of land can be prima facie evidence of ownership or of a Right of Occupancy of the particular piece of land in respect of which such acts are done. See OYADARE VS KEJI (2005) 7 NWLR Pt. 925 Pg. 571; MASKALA VS SILLI (2002) 13 NWLR Pt. 784 Pg. 216.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

HOW THE COURT DETERMINES THE MOST PROBABLE TRADITION HISTORIES IN LAND DISPUTES

In determining which of the parties traditional histories is more probable, the trial Court must make reference to the facts of use and possession in recent years as established by evidence and by seeing which of two competing histories is more probable.ARCHIBONG VS EDAK (2006) 7 NWLR Pt. 980 Pg. 485; OKOKO VS DAKOLO (2006) 14 NWLR Pt. 1000 Pg. 401.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

EVIDENCE: BURDEN OF PROOF: WHEN A PARTY FAILS TO DISCHARGE HIS OWN BURDEN

CIVIL CASES: WHEN THE COURT BELIEVES AND ACCEPTS THE EVIDENCE OF A PARTY
In Civil matters, a party is entitled to judgment if a trial Court believes and accepts his evidence and if such evidence supports his case. The mere fact that the Court rejected the evidence of a defendant does not entitle the plaintiff to judgment. BELLO VS ARUWA (1999) 8 NWLR Pt. 615 Pg. 454.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

LAND LAW: TRESPASS: DEFINITION

Trespass to land is the wrongful invasion of the private property of another. It is trespass to land provides the entry unto the land of another by a person is not authorized. Trespass to land is rooted in a right to exclusive possession of the land allegedly trespassed. Trespass to land is thereafter, actionable at the instance of a person in possession of the land. OKOKO VS DAKOLO (2006) 14 NWLR Pt. 100 Pg. 401.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

TRESPASS: TRESPASS TO LAND IS ACTIONABLE AT THE INSTANCE OF THE PERSON IN POSSESSION
The Supreme Court in a Plethora of cases had held that Trespass to land is actionable at the instance of the person in possession. Exclusive possession gives the person in possession the right to retain the land and to undisturbed enjoyment of it against all wrong doers except a person who can establish a better title. ADEPOJU VS OKE (1999) 3 NWLR Pt 594 Pg. 154; OYADARE VS KEJI (2005) 7 NWLR Pt. 925 Pg. 571.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

TRESPASS: WHAT THE PLAINTIFF IS TO PROVE
In an Action for trespass all that a Plaintiff is required to prove in Court is not title to the land in dispute but exclusive possession of the land on which trespass has been committed. YUSUFF VS KEINSI (2005) 13 NWLR Pt. 943 Pg. 554; ADEGBITE VS OGUNFAOLU (1990) 4 NWLR Pt. 146 Pg. 576.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

DAMAGES: WHO ESTIMATES THEM

A damage is special in the sense that it is easily discernable and quantified?.
The Court is not entitled to make its own estimate of the same. See ABDUL SABER VS MOHAMMED BASIRA (1952) 14 WACA Pg. 140; DUMEZ (NIG) LTD VS OGBOLI (1972) 1 ALL NLR Pg. 241 per Igu JSC AHMED VS CBN (2012) LPELR 9341.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

JUSTICES

UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

Between

1. SAMUEL OLATUNJI
2. CHIEF AYO DADA
3. JACOB OJO Appellant(s)

AND

ELDER JOSEPH AYENI Respondent(s)

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Ekiti State delivered on the 28th day of March, 2018 by Hon. Justice A. Adesodun.

By a writ of summon together with an Amended Statement of claim, the Claimant now Respondent claimed against the Defendants now Appellants respectively as follows: –
(a) N5 Million general damages for the various acts of trespass committed and still being committed by the defendants, their agents, servants or privies on the Claimants land lying, being and situate at Akunrin, Oye Road, Imojo Ekiti.
(b) A special damages of N1,000,000 for the destruction of Claimants crops by the Defendants and their agents on the Claimants land lying, being and situate at Akunrin, Oye Road, Imojo Ekiti.
(c) An Order of perpetual injunction restraining the Defendants by themselves, their agents, Privies or servants from further committing acts of trespass of the Claimant?s land.?

?The Appellants in response filed with leave of Court a Consequential Amended Statement of Defence on May 16th, 2017

to which the Respondent filed a reply on June 6th, 2017

At the close of pleadings, the case proceeded to trial. The Respondent called four (4) witnesses, while a total number of five (5) witnesses testified for the Appellants. The following Exhibits were tendered Exhibit A, A1-A12-Photographs showing damages done to crops on the land in dispute; Exhibit 2 Negatives of some of the photographs and Exhibit D1-Subpoena issued on Inspector Whesu Felix.

The case of the Respondent as set up in his pleading is to the effect that he owns the land in dispute. He relied on traditional history as well as acts of ownership and possession on the said land which include farming, planting of economic trees in proof of his ownership of the land in dispute.

The Appellants as Defendants controverted the case of the Respondent in their Consequential Amended Statement of Defence. They alleged that the Respondent is not a member of the Atoriseyasokurin family who founded the land and that the Respondent is the trespasser. They submitted that the 1st and 3rd Appellants are members of the Atoriseyasokurin family and therefore entitled to all benefits

connected with the family including the land in dispute. They also denied destroying any crop on the land in dispute.

The trial Court, having had the benefit of addresses by the parties granted all the claims of the Respondent.

Being dissatisfied with the judgment of the lower Court, the Appellants lodged against same by a Notice of Appeal dated April 17th, 2018 and filed on April 18th, 2018. The Appellants later filed an Amended Notice of Appeal dated 8th October, 2018 and filed on 12th October, 2018 but deemed to have been properly filed and served on 28th November, 2018. There are six grounds of appeal therein. The Appellants prays this Court to allow the appeal; set aside the judgment of the lower Court and dismiss the claim of the Respondent with substantial cost.

In accordance with the Rules of this Court parties filed and exchanged briefs of argument. The Appellants? brief of argument was filed on October 12th, 2018 but deemed properly filed on November 28th, 2018 while the Respondent?s brief of argument was filed on February 26th, 2019. The Appellants further filed a Reply brief on March 13th, 2019.

?The Appellants, in

their brief formulated two issues for determination viz:
1. Whether from the pleadings and available evidence on record, the Respondent discharged the burden of proof placed on him by law to establish title to the land in dispute and as such entitled to judgment. Grounds 1, 2, 3 and 4.
2. In the absence of partitioning of the land in dispute whether the Respondent can bring an action in his personal capacity and exclusively lay claim to the land in dispute. Ground 5

The Respondent on the other hand filed their brief also formulated two issues for determination viz: –
i. Going by the circumstance of this case and evidence adduced before the trial Court whether the trial Court was right in law to have granted the claims of the respondent.
Ii. Whether the respondent had the right in law to institute the suit at lower Court against the appellants over the land in dispute and to be rightly adjudicates upon by the trial Court (ground 6).?

ISSUE 1
Learned counsel for the Appellants submitted that the decision of the trial Court is perverse as same is not supported by evidence.

In arguing this issue learned counsel

for the Appellants reproduced the five ways of proving title to land as follows:
i. Proof by traditional evidence.
ii. Proof by production of documents of title duly authenticated, unless they are documents of 20 or more years old.
iii. Proof by acts of ownership in and over the land in dispute.
iv. By long possession.
v. By ownership of adjacent land.

He referred to the cases of AJIBULU V AJAYI (2004) 11 NWLR (Pt 885) 458, AJIBOYE V ISHOLA (2006) 13 NWLR (Pt 998) 628, MBANI V BOSI (2006) 11 NWLR (Pt 991) 400, ADELAKUN V ISEOGBEKUN (2003) 7 NWLR (Pt 819) 295, IDUNDUN V OKUNMAGBA (1976) 10 SC 227.

He submitted that the Respondent having hinged his claim on declaration of title to land on tradition history, failed to show how his ancestor/original owner (Atoriseyakunrin) acquired the land. He referred to paragraphs 11, 12, 13, 14 and 15 of the Respondent?s Amended Statement of Claim. He also submitted that assuming the Respondent has been able to show how Atoriseyakunrin acquired the land, it is the submission of counsel that the land granted to the Respondent is not a personal land but a family land. He submitted that the

Respondent having described in his pleading and evidence how the land in dispute passed through one generation/descendant of Pa Atoriseyakunrin to another the said land is a family land and not the Respondent?s land. He referred to evidence of CW1, CW3 and Cw4 under cross-examination.

He also submitted that the Respondent having admitted that the 1st and 3rd Appellants are members of the Atoriseyakunrin family, the Respondent have no right to sue them for trespass or injunction on their own land as it is the property of Atoriseyasokunrin family. He referred to paragraphs 30(o), (q), r, s, t and u of their Consequential amended Statement of Defence and the evidence of Cw1 at page 252 of the record, Cw3 at page 256 of the record and CW4 at page 260 of the record. He thus urged this Court to set aside the decision of the trial Court as same is perverse.

He also submitted that the Respondent having failed to prove that the said land was partitioned; he could not claim that the land in dispute was/is his personal land. He referred to paragraph 10 of the Respondent?s reply to consequential amended statement of defence and the cases of

OSADEBE V OSADEBE (2013) 3 NWLR (Pt 1342) 584; YESUFU V ADAMA (2010) 5 NWLR (Pt 1188) 522; OYADIJI V OLANIYI (2005) 5 NWLR (Pt 919) 561.

He further submitted that with the manifest contradiction in the Respondent case the trial Court was wrong to have given judgment in favour of the Respondent. Counsel submitted that although Cw1 in his evidence claimed the land was partitioned, the evidence of Cw4 stated that nobody has partitioned the land. He also submitted that while the Respondent claimed in paragraph 2 of his Amended Statement of Claim that he is from Isawe family of Imojo, in paragraph 1 of his reply to consequential amended Statement of Defence he claimed he is from Atoriseyasokunrin family. He also submitted that while the Respondent in paragraphs 11 and 12 of the Statement of Claim claimed that the land was inherited, in paragraph 10 of the reply to consequential amended Statement of Defence he claimed the land was partitioned.

On the award of general and special damages, counsel submitted that the trial judge award on the said damages is unsupported by evidence. It is the contention of counsel that the Respondent having failed to prove ownership to

the land in dispute, failed to prove exclusive possession of the land in dispute and also failed to list items of special damage which the trial Court did acknowledged, the trial ought to have dismissed the claim of the Respondent. He referred to the judgment of the trial Court at page 337 of the record, paragraph 34 of the Respondent Amended Statement of Claim and Cw1 evidence at pages 250 ? 251 of the record.

Based from the above, counsel submitted that the decision of the trial Court is perverse and ought to be dismissed. He thus urged this Court to so hold.

Learned counsel for the Respondent on the other hand submitted that the Respondent did prove its title to the land in dispute by traditional evidence and by acts of long possession and thus was entitled to claim damages against the Appellants for trespass. He relied on IDUNDUN V OKUMAGBA (SUPRA). He also referred to paragraphs 8, 9, 10, 11, 12 and 13 of the Amended Statement of Claim and Written Statement on Oath.

On the Appellants counsel argument that the land in dispute is a family land, counsel refutes the said argument. He contended that there is unchallenged evidence

that the land in dispute was referred to by the 1st Appellants grandfather to the Claimants elder brother as the Claimants fathers land as far back as 1947. He submitted that this particular unchallenged evidence proved that the land in dispute is not family land. He referred to paragraphs 7, 8 and 9 of the Amended Statement of Claim and the case of INAKOJU V ADELEKE (2007) 4 NWLR (Pt.1025) 423.

He also submitted that DW4 having acknowledged under cross-examination that he and his father farmed at OkeUgbo and Akunrin corroborates the Respondents claim that the land is not a family land. He cited the case of IKENI V EFAMO (1996) 5 NWLR (Pt. 446) 64.

Learned counsel for the Respondent also submitted that apart from the Appellants act of trespass, the Respondent did prove through his pleading and evidence that the Appellants destroyed some valued crops on the land in dispute. He referred to Exhibits A1-A12 and Exhibit 2 and paragraph 34 of the Respondent?s Amended Statement of Claim and Written Statement on Oath at pages 183 and 193 of the record respectively.

He therefore submitted that

based from the following the trial Court was right in granting the Respondent?s claims at the lower Court. He thus urged this Court to resolve this issue in favour of the Respondent.

Learned counsel for the Appellants in his reply insisted that the Respondent never proved his titled by traditional evidence. He submitted that all the Respondent stated that the land belonged to Atoriseyosokunrin and not that he founded the land by settlement or conquest. He submitted that the failure of the Respondent to state how Pa Atoriseyasokurin came unto the land was fatal to its case. He cited the case of UKAEGBU V NWOLOLO.

He also submitted that the Respondent having failed to prove his ownership by traditional evidence cannot rely on acts of long possession.

He also submitted that assuming the Respondent had proved ownership by traditional evidence, his case will still fail as he has been unable to show that the land in dispute is a personal land and not a family land.
He thus urged this Court to so hold.

ISSUE 2
Learned counsel for the Appellants submitted that the Respondent has no locus to institute this action in a personal

capacity. It is the contention that the land in dispute is a family land and thus the Respondent donot have the locus to institute this suit in his personal capacity. He referred to the earlier pleading of the Respondent before amendment at page 1?6 of the record wherein the Respondent sue in the name of Elder Joseph Ayeni (For himself and on behalf of Atoriseyasokunrin Ruling House of Imojo) and paragraphs 11 and 12 of the amended Statement of Claim.

He further submitted that the Respondent having failed to prove that the land in dispute was partitioned as alleged in paragraph 10 of his Reply to the Consequential Amended Statement of Defence, land remains a family land and not a personal one. Hence the Respondent has no locus to sue in respect of the land in dispute in his personal capacity. He thus urged this Court to so hold.

In arguing this issue, learned counsel for the Respondent reproduced his claims before the lower Court and submitted that it is trite that a party in exclusive possession can validly maintain an action in trespass. He cited the case of ONABANJO V EWETUGA (1993) 4 NWLR(Pt. 288).

He further submitted that the

Respondent having shown in both his pleadings and evidence how the land devolved to him, how he has been in possession since 1956 and the trespass of the Appellants on the land he has the right in law to institute this suit. He referred to paragraph 11 of the amended Statement of Claim at pages 180 and 181 of the record.

RESOLUTION
The second issue in this appeal bothers on jurisdiction that is whether the Respondent as claimant in the Court below had the Locus Standi to initiate this suit. What does Locus Standi denote?
Going by settled judicial authorities, the term Locus Standi denotes legal capacity to institute proceedings in a Court of law. The fundamental aspect of Locus Standi is that it focuses on the party seeking to get his complaint laid before the Court. See OJUKWU VS OJUKWU (2008) LPELR 2401, ADESANYA VS PRESIDENT FRN (1981) LPELR 147.
?Locus Standi to maintain an action in trespass in the con of this case, means the same thing as sufficient right and/or interest to maintain an action for acts of trespass ?See OGUNSANYA VS DADA (1992) 4 SCNJ Pg. 162 GOMBE VS PW (NIG) LTD (1995) 7 SCNJ Pg. 19,

ADETONO VS ZENITH INT.L BANK PLC (2011) LPELR 8237, RHODES-VIVOUR JSC in DANIEL VS INEC (2015) LPELR 24566 held-
?Locus Standi denotes the legal capacity to institute proceedings is Court. It is a threshold issue that goes to the root of the suit. On no account should the merits of the case be considered before Locus Standi is decided. Locus Standi affects the jurisdiction of the Court. Consequently, if the party does not have Locus Standi to institute the suit the Court would have no jurisdiction to entertain the suit. Usually it is the party that is questioned as to whether he has Locus Standi?
See NURSES ASSOCIATION VS A. G. (1981) 11-12 SC Pg. 1; THOMAS VS OLUFOSOYE (1986) 1 NWLR Pt. 18 Pg. 669; PACERS MULTI DYNAMIC LTD VS MUD DANCING SISTER (2012) 1 SC Pt. 1 Pg. 75; BB APUGO & SONS LTD VS OHMB (2016) LPELR 40598.
?The question of jurisdiction is very fundamental that it should be determined first by the Court before starting any proceedings. If the Court proceeds without jurisdiction, all proceeds however, well conducted amount to a nullity. It is trite law that the issue of jurisdiction can be raised at any time by a party

even on appeal in the Supreme Court. However, it is important to note that issues of jurisdiction must be raised timeously and resolved first before embarking on further proceedings? UKWU VS BUNGE (1997) 8 NWLR Pt. 518 Pg. 527 SERVE NIG LTD VS UBN PLC (2000) 12 SC Pt. 11 Pg. 133; A. G. LAGOS STATE VS DOSUNMU (1989) 3 NWLR Pt. 111 Pg. 552; NNONYE VS ANYICHIE (2005) 2 NWLR Pt. 910 Pg. 625?.

In this appeal, the Respondent as claimant in the Court below sued the Appellant as defendant for trespass et al. The Respondent claimed that the land in issue was his land that was partitioned to him. He claimed that he had been on the land since 1947 before his brother joined him in 1956. He had farmed on the land without any disturbing at all apart from this trespass by the Appellants.

The Supreme Court has in a plethora of cases stated who can sue in a land matter. The Respondent claimed that the land in dispute is his family land that had devolved to him by inheritance. What he means by that is that he had inherited the land through his father back to his great forefathers. He had traced the genealogy back to the original owner.
However, a

member of a family has capacity to sue to protect family property. Indeed any member of the family whose interest is threatened by the wrongful alienation or wrongful interference with the family property can sue to protect his interest, whether with the consent or without the consent of the other members of the family. For if he does not act he may find himself being held to be standing by when his rights were being taken away. MOZIE VS MBAMALU (2006) 15 NWLR Pt. 1003 Pg. 466; EZEKUDE VS ODOGWU(2002) 8 NWLR Pt. 784 Pg. 366.

It is evident that the Respondent has an interest in the land in dispute. He has been in possession since 1947 without any interference from any quarter. Even if he is not the owner of the land, he had been in active and exclusive possession since 1947.

?The Respondent in this case has proved that he was in exclusive possession since 1947 so

he has the Locus Standi to sue in this matter.

Having decided that the Respondent had Locus Standi to sue, this second issue is resolved against the Appellant in favour of the Respondent. I will now go ahead and determined the issue as articulated by the Appellants.

ISSUE 2
The Appellants had argued that the judgment was against the weight of evidence. The Appellants argued further that the Respondent did not prove convincingly the claim by traditional History. The Respondent in this appeal gave a history of how the land devolved from their forefathers Atoriseyakunrin, who was the first person to deforest the land and settled there. The Respondent traced his genealogy from Atoriseyakunrin through Bello the 2nd person and a son to Atoriseyakunrin. From below down to the claimants father IlesanmiAyeni CW3 and then to himself the Respondent CW4 Joseph Ayeni.

Who founded the land?
(b) How the land was founded
(c) The particulars of the intervening owners through whom he claims. EZEOKONKWO VS OKEKE (2002) 6 NWLR Pt. 777 Pg. 44.

There was no broken chain in his history. He also gave evidence of the number of wives and children Atoriseyakunrin had.

Ilesanmi Ayeni CW3 father to the Respondent in his evidence stated as follow:
CW3 was Ilesanmi Ayeni. He adopted his written statements on dated 14th February, 2017 and 6th June, 2017. The statement are in line with their pleadings. Under cross examination CW3 stated that he was the 1st person to cultivate the land in dispute. That the land in dispute is called Akunrin and that he got to Akunrin on February, 22nd, 1947. That before coming to Akunrin he went to Igboroko to cultivate land but was driven away by Ijagbemi from Igboroko and asked to go to his father?s farm at Akunrin. He stated that the farmland is not family land having inherited same from Omilabu his father who inherited same from Bello. That Bello in turn inherited same from Atoriseyasokunrin. That Atoriseyasokunrin had three wives. The most Senior wife had Seven (7)

children, 4(four) Males and 3(three) Females. The next wife had 3 children, 2 Males and 1 Female while the 3rd wife had two children.
CW3 also under cross examination admitted that 1st and 3rd Defendants are from Atoriseyasokunrin. The 1st Defendant is the current Olumojo. He said Bello was never a war captive but the 1st child of Atoriseyasokunrin. And Ogele was his mother. That Bello and Omilabu had previously cultivated the farmland in dispute. That Claimant started working on the farmland in dispute in 1956.
That igboroko and Okeigbo belonged to the 1st Defendant as his father inherited same. CW3 stated emphatically under cross examination that Akunrin is their own

?The Respondent had stated that the land was partitioned. I believe that what he meant as per his evidence is that his own branch of the family had their land Akunrin which is the disputed land and 1st& 3rd Appellants had their own land in Okeigbo and Igboroko. Both the Respondent and the Appellants traced their history to the founder and first settler on the land both parties had this Atoriseyasokunrin as their forefather. What this means is that since they had both

traced their ancestors to Atoriseyakunrin, they belong to the same large family. However, it appears from the evidence that each branch had their own land.

The Respondent had traced his own traditional history without break to the founder of the land. So also did the Appellants. However, where a party to a land in dispute has directly traced his title to a person whose title to ownership had been established, it would not be necessary for him to prove his ownership of the said land. BUNYAN V AKINGBOYE (1999) 7 NWLR Pt. 609 Pg. 31.

A Plaintiff who seeks

declaration of title to land must prove his root of title to the land. Where he traces his title to a particular person, he must further prove how that person got his own title or came to have the title vested in him, including, where necessary, the family that originally owned the land. The burden of proof on the Plaintiff is not discharged even where the scales are every weighted between the parties.DIKE VS OKOLOEDO (1999) 10 NWLR Pt. 625 Pg. 359, OTANMA VS YONDUBAGHA (2006) 2 NWLR Pt. 964 Pg. 337.

The Respondent had proved that the land in dispute devolved on him and he started planting there in 1947 and his Son joined him in 1956. From that 1947 he had been in full and exclusive possession of the land cultivating and receiving Isakole from the land. In law, sometimes, acts of long possession and enjoyment of land can be prima facie evidence of ownership or of a Right of Occupancy of the particular piece of land in respect of which such acts are done. See OYADARE VS KEJI (2005) 7 NWLR Pt. 925 Pg. 571; MASKALA VS SILLI (2002) 13 NWLR Pt. 784 Pg. 216.

?In support of the traditional history of the Respondent, he also buttresses the claim to this

land by acts of possession on the disputed land. He had been in possession since 1947 undisturbed. He had planted economic trees and cash crops which the Appellants had destroyed. See Exhibit A, A1-A12 tendered by CW2, the photographer.

The Appellants have not shown any proof that they were in possession of this land in dispute they are claiming.

In Civil cases the onus of proving an allegation is on the plaintiff and the onus does not shift until he has proved his claim on the preponderance of evidence and balance of probabilities.
Parties in Civil suits must prove their cases on preponderance of evidence and on balance of probabilities. It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift.

But where a party fails to discharge the burden then the opponent needs not prove any fact and the party alleging cannot rely on the opponent?s case. A party must prove its case on credible evidence of its witnesses and is not at liberty in law to make a case or rely on the weakness of its opposite party in order to succeed. ELIAS V. OMO-BARE (1980) 5 SC PG. 25; AGBI V. OGBEH(2006) 11 NWLR PT. 990 PG. 68.
In Civil matters, a party is entitled to judgment if a trial Court believes and accepts his evidence and if such evidence supports his case. The mere fact that the Court rejected the evidence of a defendant does not entitle the plaintiff to judgment. BELLO VS ARUWA (1999) 8 NWLR Pt. 615 Pg. 454.

In this appeal, the Respondent as plaintiff in the Court below proved his title to the land in dispute by traditional history and acts of long possession of the land by planting cash and economic crops on the land. The claimant witnesses CWS were ad idem that the Respondent had been on the land since 1947 that the land devolved on him from his fathers to the first settler on the land.

?The Appellants on the other hand had no proof about their

claim to the land. They were not in possession of the land in dispute.

The 1st& 3rd Appellants argued that since the parties were all members of the Atoriseyakunrin family that they cannot be sued for trespass or injunction on their own land as it is the property of Atoriseyasokunrin family.

Yes, they are members of the same family but it appears from evidence that the Respondent?s family own Akunrin land whilst the Appellants family owned Igboroko and Okeigbo. It appears the land had been partitioned and each family had their own land. Therefore, Akunrin as held earlier in this judgment belonged to the Respondent.

the person in possession. Exclusive possession gives the person in possession the right to retain the land and to undisturbed enjoyment of it against all wrong doers except a person who can establish a better title. ADEPOJU VS OKE (1999) 3 NWLR Pt 594 Pg. 154; OYADARE VS KEJI (2005) 7 NWLR Pt. 925 Pg. 571.
In an Action for trespass all that a Plaintiff is required to prove in Court is not title to the land in dispute but exclusive possession of the land on which trespass has been committed. YUSUFF VS KEINSI (2005) 13 NWLR Pt. 943 Pg. 554; ADEGBITE VS OGUNFAOLU (1990) 4 NWLR Pt. 146 Pg. 576.

In the case, there was evidence that after the election for the new Oba, the Youths went to clear the Respondent?s land for building of a new Palace. This on its own it?s an act of trespass. Also cash and economic crops were destroyed by the Appellants.

The Respondent?s claim for trespass is not dependent on the success of a claim for declaration even though in this case, the Respondent had proved his entitlement to a declaration of title. Thus a Plaintiff can succeed in a claim for damages for trespass and injunction even where his claim for

a declaration of title fails. BALOGUN VS AKANJI (2005) 10 NWLR Pt. 933 Pg. 394; UDE VS CHIMBO (1998) 12 NWLR Pt. 577 Pg. 169; OKHUAROBO VS AIGBE (2002) 9 NWLR Pt. 771 Pg. 29.

The Respondent had been in exclusive possession of the disputed land since 1947 until the trespass of the Appellants on 22nd day of April, 2011. The Appellants argued that they cannot trespass on the disputed land as it is their own. The lower Court held and declared the Respondent owner of the land in dispute Akunrin. The learned trial Judge also found as a fact that the Appellants trespassed unto the Respondent?s land.

The learned trial judged awarded general damages to Respondent in the sum of N500,000.00 and special damages assessed at N100,000.00 as there was not tort actions concrete proof on this subhead.

Claimants in active may be seeking monetary compensation (damages) or perhaps an injunction to prevent further repetition of wrongful acts by the defendant.

For the purposes of calculation the award of damages are divided into two kinds. Special damages and general damages. Special damages are quantifiable pecuniary loses up to the date of trial.

These are assessed separately from other awards since they must be pleaded specifically and proved strictly.
The exact amount to be plead is known at the time of trial. However, general damages covers all loses which are capable of exact quantification.
It includes all non-financial loss (past and future) and future financial loss. Item of general damage need not and should not be specifically pleaded, but some evidence of such damage is required. OKUMAYE VS L. C. C. (1973) 2 CCHCS Pg. 38.
As the Courts have held, there is no fixed rule by which to assess general damages. It is indeed, difficult, to ascertain. But it is left to the Courts discretion which must be exercised judicially and judiciously.
The trial Court in its wisdom awarded general damaged of N500,000.00 for the losses incurred for their damaged crop. This was rightly awarded for the losses incurred. I also affirm this.
However, for special damages to be awarded, it must be specifically pleaded and proved strictly. See EKENNIA VS NKPAKARA (1997) LPELR 1078 NEKA B.B.B. MANUFACTURING COY LTD VS A.C.B. LTD (2004) LPELR 1982. where Pats-Acholonu JSC held.

The trial Judge held that there was no concrete evidence on how the value of the damaged Crops was arrived at. Even though, the learned trial Judge awarded N100,000.00. However, I think the Respondent must fail on this sub-head. Even though it was pleaded the Respondent could not or did not specifically prove the cost of the individual Crops damaged. No evidence as to how the various amounts were reached. Special damages must be strictly proved. I therefore, hold that this head was not proved and therefore fails.

In sum, this appeal is unmeritorious. It is dismissed. I affirm the judgment of the lower Court in all things except that on special damages.

The Respondent is entitled to the declaration of title to the land, Akunrin, the disputed land having proved his title. The Respondent is also entitled to general damages against the Appellant

for trespassing on the Respondents land. The Respondent are hereby entitled to the injunctive. Relief sought that is perpetual injunction restraining the Appellants by themselves, their agents, privies or servants from further committing acts of trespass on the Respondent?s land.

The award of N100,000.00 special damages to the Respondent is upturned.
Cost of N250,000.00 is awarded to the Respondent against the Appellants.

FATIMA OMORO AKINBAMI, J.C.A.: I have read in advance the judgment just delivered by my learned brother UZO I. NDUKWE-ANYANWU, JCA. He has dealt in great details with all the issues raised in the appeal, and I agree with his reasoning and conclusions in the lead judgment. I have nothing useful to add, I therefore adopt the judgment as mine.
I also dismiss the appeal, same being unmeritorious.
I abide with the consequential orders made in the lead judgment.

PAUL OBI ELECHI, J.C.A.: I have had the privilege to have read before now the judgment just delivered by my learned brother, Hon. Justice I. Ndukwe Anyanwu JCA. His lordship has passionately

considered all the issues canvassed in this appeal on their merit. I agree entirely with him and adopt same as mine.

As a result, there is nothing more to add. The appeal has merit and I join him in dismissing same.
Also I abide with the award of N250,000.00 cost to the Respondent against the appellant.
Appeal Dismissed.

Appearances:

Taiwo Ogunmoroti with him, Temitope Kolawole, Esq., Ayantunde Adeleke, Esq. and Oluwaseun Oyebanji, Esq.For Appellant(s)

Adedayo Adewunmi, Esq. with him, L.A. Fasanmi, Esq.and Kehinde Adegbuyiro, Esq.For Respondent(s)

Appearances

Taiwo Ogunmoroti with him, Temitope Kolawole, Esq., Ayantunde Adeleke, Esq. and Oluwaseun Oyebanji, Esq.For Appellant

AND

Adedayo Adewunmi, Esq. with him, L.A. Fasanmi, Esq.and Kehinde Adegbuyiro, Esq.For Respondent

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