Sunday Omoyinmi V. Grace Olu Olaniyan & Anor. (2000)
LawGlobal-Hub Lead Judgment Report
ADEREMI, J.C.A.
The appellant (Sunday Omoyinmi) who was the plaintiff at the Lagos High Court holden at Lagos in Suit No. LD/353/72 in their amended writ of summons claimed against the respondents who were the defendants in that court, as follows:
(1) N5, 000:00 being general and special damages for trespass committed by the defendants, their agents and/or servants in February, March, and April, 1972 and also 4th June, 1994 when they, their servants and agents broke and entered plaintiff’s land at 5, Oseni Street, Lawanson, Lagos and destroyed all plaintiffs properties.
(2) N2,000:00 being rents due but lost on the properties as from June, 1974 up to June, 1978.
(3) An order setting aside the judgment dated 17/7/67 obtained by 1st defendant in Suit No. IK/187/63 J.C. Onyelu v. Comfort Abiona) on the grounds that:
(a) defendant in that action was denied the opportunity of being heard due to the fraud, acts and omission of the plaintif,f his agents and servants.
(b) The trial of the said action was full of serious defects in procedure.
(c) The trial of the action and the judgment were incomplete and irregular even on the face of the records.
(d) Defendant therein was denied the opportunity of taking part in the proceedings leading to the judgment.
(e) Procedural irregularities caused failure of jus lice and the said judgment was affected by a fundamental vice.
(4) A perpetual injunction restraining the defendants, their agents and servants from further going on the said landed property.
(5) And for further or other reliefs.
By way of counter-claim as indorsed in the second amended defence and counter-claim of the second defendant with the leave of court, the second defendant as the counter-claimant (S.O. Olaniyan) claimed against the plaintiff as the first defendant to the counter-claim as follows:
(1) Declaration of title in fee simple or according to Yoruba Customary law to the property at 5, Oseni Street, Lawanson, Surulere, Lagos State.
(2) N10,000:00 general and special damages for trespass and damage to 2nd defendant, building materials etc. on the land.
(3) Injunction restraining the plaintiff and the 2nd defendant (Registrar of Titles) to the counter-claim to deliver to the Honourable Court for cancellation the original and copy of the Deed of Lease dated 17th April, 1964 and Registered as No. 45 at page 45 in Volume 1448 in the Lands Registry in the office at Lagos on the ground that the original copy thereof bears the original copy of Surveyor J.J. De Madeiros’s site plan No. JJ/53/57 and counter-signed by the Director of Surveys on 16/1/58 with the second defendant’s predecessor-in-title. Madam Eunice Dawodu Banwo stated therein as the owner of the said land while the purported copy actually registered shows a copy of the said site plan bearing the same number and same date showing plaintiff’s name as owner of the same land.
The pleadings filed and exchanged between the parties, with the leave of court, are the amended statement of claim, the second amended statement of defence of the 1st defendant, second amended statement of defence of the 1st defendant, second amended statement of defence and counter-claim of the second defendant and the plaintiff’s statement of defence to the 2nd defendant’s counter-claim.
I pause now to define all the parties to this case from the inception of the case up to the stage of this appeal. Until the 4th of December, 1996, the parties to the original claim were Sunday Omoyinmi (as plaintiff) and J.O. Otuyelu with S.O. Olaniyan (as the defendant). As to the counter-claim; the counter-claimant was S.O. Olaniyan while Sunday Omoyinmi and Registrar of Titles for Lagos State as defendants to the counter-claim. The only change in the names of the parties took effect following the death, on 4th December, 1996, of J.O. Otuyelu (1st defendant/respondent) cross-appellant. Sequel to the aforementioned death leave of court was sought and obtained to substitute Mrs. Grace Olu Olaniyan for the deceased (J.O. Otuyelu her father).
After taking the evidence of the parties and their witnesses together with the addresses of their counsel, the court below, in a reserved judgment delivered on 12th October, 1984, dismissed all the heads of the claim of the plaintiff except that under head (5) where it was ordered that the 1st defendant (J .O. Olaniyan) father-in- law of the 2nd defendant and who on his demise was by order of court, substituted by his daughter (Mrs. Grace Olu Olaniyan) shall pay as damages to the plaintiff the sum of N1,221:00 for unlawful damage caused by him and at his instance to the plaintiff’s property.
In disposing of the counter-claim, the lower court struck-out the 2nd defendant/counter-claimant’s relief for declaration of title in fee simple but he (2nd defendant/counter-claimant/appellant) was declared to be the person entitled under the customary law to be granted a certificate of occupancy in respect of the property in dispute known as 5, Oseni Street, Surulere. However, his (2nd defendant/counter-claimant/appellant) claim for general and special damages was dismissed but his leg of counter-claim for injunction was granted and the plaintiff, his servants and/or agents were restrained from going on the land in dispute, while it was ordered that the Deed of Conveyance tendered during the proceedings as Exhibit P registered as No. 45 at p. 45 in volume 1448 in the Lands Registry in the Office at Lagos be delivered to the Assistant Chief Registrar. Litigation to be submitted to the Registrar of Titles for cancellation and its copy expunged from the Register of Deeds. It was also ordered that the 2nd defendant/counter-claimant/appellant shall be entitled to withdraw from the Registrar of the court all such payments made pursuant to the order directing monthly payment of N120:00 into court subject to the sum of N1,221:00 thereof being paid to the plaintiff. Each side was ordered to bear his costs.
Being dissatisfied with the said judgment, the defendants by the original action and the 2nd defendant as plaintiff to the counter-claim filed a notice of cross appeal which incorporates three grounds of appeal; the same are set-out hereunder less their particulars:
(1) The learned trial Judge erred in law and came to a wrong decision when he awarded damages in favour of the plaintiff in respect of the land in issue notwithstanding the fact that the plaintiff was a certified trespasser without any valid title thereto as round by His Lordship in two passages as follows:
(i) The plaintiff having failed to trace his title to the land to the original owner Chief Bada, whose radical title all parties in this case rely for their legal interest in the land, the document, Exhibit P, on which he is relying for the lease on the land cannot avail him.
(ii) In so far as the plaintiff could not produce or explain the non-production of the identical plan attached to Exhibit P in his own name as chain on the plan attached to Exhibit C, I cannot but come to the conclusion that the said plan attached to Exhibit C1 was made with intent to defraud within the provisions of section 473 of the Criminal Code of Lagos State.
(2) The learned trial Judge erred in law and thereby came to a wrong decision when he awarded the plaintiff the sum of N1,221:00 against 1st defendant for purported unlawful damages to plaintiff’s property by 1st defendant and at his instance when there was no basis for same.
(3) The learned trial Judge erred in law and came to a wrong decision when he refused to award costs in favour of both the defendants/respondents and of 2nd defendant/counter-claimant in the court below when costs always abide the want and when none of those winning parties have done anything mean, despicable or otherwise unlawful as to warrant them to be deprived of their costs. Also, the plaintiff being dissatisfied with the said judgment filed a Notice of Appeal on 28th of November, 1984 with an omnibus ground. But with the leave of court, pursuant to an application brought the plaintiff/appellant filed amended grounds of appeal, eight in number which I set-out hereunder without their particulars:
“(1) The learned trial Judge erred in law in granting a declaration of customary right of occupancy in favour of the second defendant when he ought to have dismissed same.
(2) The learned trial Judge erred in law when he held:
“In the foregoing circumstances, the 2nd defendant/counter-claimant has failed to trace his radical title to the original owner, Chief O.S. Bada as to entitle him (the counter-claimant) to the alternative relief claimed …
For these reasons I do not think it will be just to dismiss this aim or the claim rather I shall discontinue it under Order 23 Rule 1 of the High Court Rules and the aim of claim is hereby struck out”.
(3) The learned trial Judge erred in law in dismissing the plaintiff’s claim for damages for trespass and injunction.
(4) The learned trial Judge erred in law in awarding only damages to the plaintiff when having found out that the plaintiff was entitled to the protection in law, he ought to have granted consequential or other ancillary reliefs.
(5) The learned trial Judge erred in law in ordering the deed of the plaintiff to be delivered up and cancelled.
(6) The learned trial Judge erred in law in not setting aside the judgment in Suit No.IK/87/63 Otuyelu v. Comfort Abina.
(7) The learned trial Judge erred in law when after stating that the land in dispute had been in possession of M. Banwo to enable surveyor go there in 1957, he held as follows:
“By relying on a survey plan which I have had could not have been a plan of the land in dispute surveyed for the plaintiff on his instruction, his adoption of the survey beacons planted by the surveyor of the defendants’ predecessor-in-title is a further testimony that the plaintiff’s possession and/or occupation of the land in dispute was that of a squatter or a trespasser otherwise, who was the plaintiff’s surveyor’?
The plaintiff called none nor produced a genuine plan showing that he instructed a surveyor for the purpose of producing a plan of the land in dispute for him.
(8) The judgment is against the weight of evidence. Briefs were filed and exchanged between the parties. With the leave of court, the plaintiff/appellant filed an amended Plaintiff/ Appellant’s brief wherein he raised seven issues for determination and they are in the following terms:
(1) Whether the plaintiff, who sued in trespass, put his title in issue and is not entitled to succeed even though he established and the court found that he was in possession at the time the action was instituted.
(2) Whether the court had any justification to alter the effect of its own rulings in issues previously decided by it in the course or the same proceedings.
(3) Whether judgment in Suit No. IK/87/63 obtained in plaintiff’s absence which injuriously affected him, a person in occupation ought not to be set aside.
(4) Whether site plan presented in error to the Land Registry by illiterate plaintiff contained fraudulent statement by the plaintiff as to lead to cancellation of the deed to which the plan was annexed.
(5) What in law is the effect of award of damages in favour of the plaintiff in the circumstances of this case?
(6) Was it open to the court merely to strike out the 2nd defendant’s claim to title based on a transfer pendete lite.
(7) Whether in his counter-claim the 2nd defendant alleged and proved sale under customary law as to entitle him to the declaration he sought.
Of course the plaintiff/appellant also filed a Reply to Respondent’s Brief and Response/to Cross Appeal sequel to the service on him of the briefs of the cross/appellant. Reacting to the issues raised by the plaintiff/appellant, the defendants as respondents to the main appeal, contend in their Respondents’ Brief that the seven issues raised for argument by the plaintiff/appellant cannot be said to have been distilled nor are they distillable from the amended grounds of appeal, in the alternative, the defendants as respondents to the main appeal opine that the issues raised by the plaintiff/appellant have been proliferated. It was their view, as expressed in their respondents’ brief that the seven issues raised by the plaintiff/appellant could be condensed into three and the three condensed issues as set out in their brief are as follows:
“(1) Whether the judgment given in Suit No. IK/87/63 on 17/7/67 in favour of the 1st defendant against Comfort Abiona (PW 1) be set aside in the year 1972 at the instance of the plaintiff.
(2) Whether the plaintiff can in February, 1972 and thereafter claim a relief for trespass and injunction against 1st defendant and others by virtue of the purported Exhibit P1 in respect of the land in dispute in face of the judgment in Suit No. 1K/87/63.
(3) Whether the 2nd defendant established his title to the land in dispute as against the plaintiff in Exhibit D6 i.e. Suit No.IK/87/63 aforesaid.
The defendants/cross-appellants in their brief filed in support of their cross-appeal formulated three issues for argument and they are in the following terms:
(1) Was the learned trial Judge right to have awarded N1,221:00 damages against the 1st defendant in favour of the plaintiff who committed series of reprehensible acts namely fraud etc. as charged and proved against him in the proceedings.
(2) Was the learned trial Judge right to decree that the N1,221:00 damages awarded in favour of the plaintiff against the 1st defendant be paid from the monetary entitlement of the 2nd defendant.
(3) Was the learned trial Judge right to deprive successful litigants, i.e. the defendants of their right to cost against the plaintiff?
It will seem from the Reply brief of the plaintiff as respondent to the cross-appeal that he (plaintiff/appellant as respondent to the cross-appeal) is in agreement with the issues raised by the cross-appellants for determination.
When this appeal came before us for argument on 25th November, 1999, Chief J.A. Omoyinmi, learned counsel for the appellant adopted the amended brief of the appellant filed on 16/12/97 and the Reply to Respondents brief and response to cross-appeal filed on 20th April, 1998 and urged that the appeal be allowed while the cross-appeal be dismissed. Otunba V. O. Awopeju, learned counsel for the defendants/cross-appellants also adopted the defendants/ respondents brief and the cross-appellants’ brief filed on 6/4/98 while urging that the appeal be dismissed and the cross-appeal be allowed.
I shall begin the consideration of this appeal by saying that the law is sacrosanct that not only must the grounds of appeal formulated arise from the judgment being appealed against, issues raised for determination must be distilled from these grounds of appeal, they must be within the confines of the grounds of appeal, they must not be more than the grounds and must not be proliferated. See (1) Oba v. Egberongbe (1999) 8 NWLR (Pt. 615) 485 (2) Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 (3) Akinbinu v. Oseni (1992) 1 NWLR (Pt. 215) 97, (4) G.E.C. v. Akande & Ors. (1999) 1 NWLR (Pt. 588) 532. I agree with the contention of the cross-appellants as manifested in their brief that the issues raised in the appellant’s brief have been proliferated. I do agree that the three issues raised by the defendants/respondents when taken together cover the field.
Giving a broad look at the entire case it seems to me that the issues arising for determination in the appeal of the plaintiff are:
(1) Whether from the facts of this case, title is in issue.
(2) Whether the plaintiff traced his title to that of the established owner – Chief Bada.
(3) Whether having regard to the evidence before the court the plaintiff is entitled to the award of special and general damages.
(4) Whether the judgment in Suit No. IK/87/63, J.O. Otuyelu v. Comfort Abiona ought to be set-aside having regard to the evidence before the court.
While I am in substantial agreement with the issues raised by the defendants/appellants in their brief of argument in support of their cross-appeal, I wish to say that issue of title is fundamental to the defendants’ counter-claim.
A careful study of the pleadings of the parties shows that the parties are ad idem that the established ownership of the land in dispute resides in one Chief Ode wale Savage Bada. The case of the plaintiff/appellant from his pleadings is that one Madam Comfort Abiona took a lease of the parcel of land from Chief Odewale Savage Bada. Madam Comfort Abiona built on the land and sublet the property to the plaintiff/appellant. The case of the defendants/cross-appellants as gleaned from their pleadings is that Chief Odewale Savage Bada sold the land to Madam Eunice Banwo Dawodu. Upon the death of Madam Dawodu the property devolved on the 1st defendant and his sister as beneficial owners both being the children of Madam Dawodu. The 1st defendant and his said sister later passed their title and interest in the land to the 2nd defendant. From the manner the claim and the counter-claim have been couched, title in the land has been put in issue. It is now firmly established in law that where title to ownership of land has been proved to be established in an identifiable person, to succeed, a plaintiff must trace his title to that of that established owner. See Thomas v. Holder (1946) 12 WACA 78. Once the plaintiff discharges that onus on him the burden then shifts on to the defendant to prove a better title. See Awomuti v. Salami (1978) 3 SC 105. Where however, as in the instant case, both parties claim to derive their title from a common grantor the earlier grant must prevail. See Adelaja v. Fanoiki (1990) 3 SCNJ 131: (1990) 2 NWLR (Pt. 131) 137. Giving that everything is regular, the immutable principle of law and equity is that he who is first in time has the strongest claim in law. Also, equitable in cumbrances rank, as a rule, according to their dates; the first grantee having a better and superior title because he is prior in equity; the maxim being Qui-Prior Est Tempore Potior Est Jure. Indeed, where a plaintiff and a defendant claim to have derived their title, rights and interests from the same person or the same source, the issue should be resolved by finding out who, as between the plaintiff and the defendant has a better title. See (1) Lions Building Ltd. v. Shodipe (1976) 12 SC 135. (2) Bello v. Eweka (1981) 1 SC 101. In perceiving and evaluating the evidence led by the plaintiff to establish his case as presented above, the trial Judge said:
“The plaintiff having failed to trace his title to the land to the original owner, Chief Bada whose radical title all parties in this case rely for their legal interest in the land the document. Exhibit P1 on which he is relying for the lease on the land cannot avail him… The plaintiff’s possession and/or occupation of the land would either be that of a squatter or a trespasser. … In the circumstances therefore the other heads of claim, namely general damages, rents due but lost and injunction under heads (1), (2) and (4) cannot arise. These heads of claim collapse with the claim of trespass.”
To justify the award of N1,221.00 against the defendants as damages for unlawful damage done by the defendants to the plaintiff’s property on the land under what was called the 5th leg of the plaintiff’s claim which is in the following terms: “and for further or other reliefs”, the trial court said:
“Before concluding this aspect of claim, I must even though the possession of the plaintiff has been stated to be that of a trespasser or a squatter, he is nevertheless entitled to protection under the law and as such the defendants or any of them was not entitled to destroy any of the plaintiff’s property on the land especially moveable one without giving the plaintiff sufficient notice to remove them… I therefore accept the evidence of the plaintiff against that of the defendants as to the manner they particularly the 2nd defendant, recovered the vacant possession of the land in dispute from the plaintiff to enable the 2nd defendant erect his building on the said land. I also accept the evidence of the plaintiff on the articles said to have been destroyed, particularly those set out under paragraph 23 of the amended statement of claim as special damages. Therefore if only to teach the defendants, not to take the law into their hands in circumstances such as these, to emphasise that tortuous acts do not pay and also to put the claim under this head to finality, they should be made to pay for the damages said to have been suffered by the plaintiff arising out of that outrageous incursion. I find the 1st defendant liable to the plaintiff in respect of the damages done to the plaintiff’s articles of trade products and other materials for which I award N1,221:00”
I have had a careful examination of the testimony of P.W.1 – Madam Comfort Abiona, the predecessor-in-title of the plaintiff and that of the plaintiff on the issue of title which is in issue here. The best that could be made out of the testimonies is an oral lease allegedly taken out by Madam Comfort Abiona from Chief Odewale Savage Bada-the established owner of the land. And the evidence in that direction came only from P., Madam Comfort Abiona. Undoubtedly, that piece of evidence is no satisfactory proof that the plaintiff has traced his title to that of the established owner. I am therefore in full agreement with the findings of the court below that the plaintiff has failed to trace his title to the land to that of the established owner.
I pause to say that, in law, where a plaintiff has failed to prove the root of title pleaded and relied upon by him in an action such as this where title is in issue, generally, he cannot subsequently rely on acts of possession and the proper order is one dismissing his claim. See (1) Fasoro v. Bevioku (1988) 2 NWLR (Pt. 76) 263, (2) Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) 46 and (3) Chime v. Ude (1993) 3 NWLR (Pt. 279) 78. Having found that the plaintiff has failed to trace his title to land to that of the established owner it follows that the plaintiff is not entitled to a decree declaring him the owner of the land. But, it is obvious from the reliefs sought that the plaintiff is claiming damages for trespass, although I have said that, title is the issue here. The law is trite that trespass is actionable at the suit of the person in possession of the land. He can sue for trespass even if he is neither the owner nor a privy of the owner. The reason for this, in law, is that exclusive possession of the land gives the person in such possession the right to retain it, and to an undisturbed enjoyment of it against all wrong doers except the true owner or a person who could establish better title. See Amakor v. Obiefuna (1974) 3 SC 67. Again, where two contending parties, as in the instant case, claim to be in possession of the land in dispute it becomes mandatory for the court to examine the title of the parties and whoever shows a better title is the winner. See (1) Olayioye v. Oso (1969) 1 All N.L.R. 281 and (2) Adeshoye v. Shiwoniku (1952) 14 WACA 86. I shall now examine the evidence proffered by the defendants before the court below, evaluate same with a view to seeing whether the defendants have better title than the plaintiff whose title, based on the evaluation of the printed evidence, I have adjudged to be defective.
As I have said earlier in this judgment, based on the averments in the pleading of the parties, they both claim to have derived their title from Chief O.S. Bada, the acclaimed original owner. The second defendant/counter-claimants tendered as Ex. P2A as the copy of the original deed or conveyance his claimed, was executed in his favour by the 1st Defendant and D/W5, both in-laws. The defendants/counter-claimants’ case from their pleadings is that Chief Olawale Savage Bada, the established owner of the land sold same to Madam Eunice Dawodu, the mother of the original defendant (J.O. Otuyelu) and executed a deed of conveyance in her favour. She (Madam Dawodu) thereafter exercised acts of possession and ownership on the said land. Part of the exercise was the challenge, in the court, she gave to Madam Comfort Abiona the predecessor-in-title of the plaintiff. The case which started with Madam Eunice Dawodu as plaintiff and Comfort Abiona as the defendant ended up with J.O. Otuyelu as plaintiff and Comfort Abiona as defendant. Upon the death of Madam Eunice Dawodu one of her children J.O. Otuyelu was substituted for her as plaintiff. For a clear picture of the defendants/counter-claimants’ case, I wish to reproduce salient paragraphs of their pleadings, Para 3 of the 1st defendant’s defence reads:
“1st defendant avers further that the land which is the subject-matter of this action was sold and conveyed for valuable consideration by Chief Olawale Savage Bada by a deed of conveyance registered as No. 11 at p. 11 in Volume 348 in the Lands Registry in the Office at Ibadan to Madam Eunice Dawodu, the defendant’s mother”
That Madam Comfort Abiona referred to in paragraph 3 of the Amended Statement of claim was a friend and tenant at will of the 1st defendant’s mother on the land in dispute. Para 8.
“The 1st defendant will rely on the judgment in Suit No. IK/87/63: between J.O. Otuyelu v. Comfort Abiona at the High Court of Justice Western Nigeria, Ikeja Judicial Division as creating estoppel per rem judicata against the plaintiff in this action who derived his title from Comfort Abiona and therefore privy to her.
The plaintiff in his amended statement of claim made averments which confirm the existence of Suit No. IK/87/63. J.O. Otuyelu v’. Comfort Abioua and that Madam Dawodu was the mother of the 1st defendant (J.O. Otuyelu). But in paragraphs 28, 29, 30, 31 and 32 of his amended pleadings he contended that the said judgment, a certified true copy of which was tendered as Ex. D6, was obtained by fraud. In Ex. D6 a judgment delivered by Beckley J.J.O. Otuyelu as plaintiff was adjudged the owner of the said land; damages for trespass were awarded against the defendant (Comfort Abiona) but in his (J.O. Otuyelu) favour so also was an order of injunction clamped on her, there has been no evidence of appeal against the said judgment. The plaintiff made a spirited effort to set aside the judgment – Ex D6. After reviewing the evidence proffered by the plaintiff in that direction, the court below held:
“It is the above enumerated documents that the plaintiff is relying upon for an order to set aside the judgment Ex. D6 on the grounds: (i) fraud and (ii) fundamental and serious irregularities. At this stage, one may ask what have these documents proved in relation to the judgment. Ex D6… I have given a careful consideration to the case presented by the plaintiff to support the relief sought in paragraph 3 of this amended statement of claim and I found no evidence to support any of the grounds raised under the said paragraph to support his complaint. In other words, the plaintiff has failed to establish the standard of evidence – a strange case – to set aside the judgment in Ex, D6.”
I cannot but agree with the findings of the learned trial Judge quoted above. The evidence, oral and documentary, adduced by the plaintiff is far short of the requirements laid down for requirements setting aside judgment said to have been obtained by fraud as set out by the learned Authors of Halsbury’s Laws of England 4th Edition Volume 26 Paragraph 560.
I have somewhere in this judgment traced how the 2nd defendant/cross-appellant eventually came to own the land. He bought same from the surviving children of Madam Dawodu one of who was J.O. Otuydu, his father-in-law. That historical account has not been faulted. The trial Judge after a due consideration of the whole evidence unhesitatingly declared that the 2nd defendant/counter-claimant/appellant was the person entitled to a grant of certificate of occupancy. The findings in my view is correct and it meets the justice of this case. The conclusion that must be reached, in law, from the totality of the evidence is that the plaintiff/appellant cannot maintain an action in trespass against the counterclaimant/appellants giving the state of the evidence before the court. The reason is that, he is the true owner of the land. It therefore follows that the plaintiff/appellant having failed to prove the root of title pleaded and relied upon by him in a land suit such as the present one, where title is in issue the proper order to make is one dismissing his claims in their entirety. Issues 1, 2 and 3 raised in the brief of argument of the defendants/cross-appellants in the cross-appeal are therefore answered in the negative. They are resolved in favour of the cross-appellants. I only need to add that having held that the plaintiff failed to prove his case, the reason adduced by the trial Judge in awarding N1,221:00 damages to the plaintiff are purely sentimental. But it must be noted that sentiments have no place in judicial deliberations. Indeed, they are an anathema to law. Also, from the foregoing issues 1 and 2 of the three condensed issues, encompassing the seven issues raised in the brief of argument of the plaintiff/appellant, are answered in the negative. Of course the third condensed issue is answered in the affirmative. For the avoidance of doubt issues 1 and 2 raised in the brief of the defendants/cross-appellants as respondents to the appeal of the plaintiff/appellant are answered in the negative having regard to the evaluation of the printed evidence carried out supra. The 3rd issue in that cross-appellants’ brief in response to the plaintiff/appellant’s appeal which is whether the 2nd defendant has established his title to the land in dispute is answered in the affirmative.
Having adjudged the 2nd defendant/cross-appellant as the person entitled to a grant of Certificate of Occupancy thus upholding the finding of the court below and having answered issue 2 of the cross-appellants’ brief in response to the appeal of the plaintiff/appellant in the affirmative, I shall now examine the printed evidence with a view to determining whether the plaintiff/appellant committed trespass on the land. I pause to say that trespass to land, in law, constitutes the slightest disturbance to the possession of the land by a person who cannot show a better right to possession. A quick glance at the testimonies of the plaintiff/appellant reveals that he went to the land and disturbed the possession of the defendants/cross-appellants. In leg 2 of the counter-claim, the 2nd defendant/cross-appellant is claiming N10,000:00 as general and special damages for the trespass committed by the said plaintiff/appellant on the land. In dealing with the evidence led by the 2nd defendant/cross-appellant on that point the court below held thus:
“From the above testimony, the inference that the counter-claimant wants this court to draw is that those articles were either stolen by the plaintiff or that the plaintiff converted them to his use and similarly, those allegedly destroyed were destroyed by the plaintiff. First, I must observe that there is no evidence from the counter- claimant that he reported the matter to the Police and the Police investigated the complaint or even invited the counter-claimant for questioning … Could any reasonable person, irresistibly draw the inference or presume that the acts complained were perpetrated by the plaintiff, more so when there is no evidence that the perpetration of the acts complained of could not have been done by any other person or persons or that at the material time the plaintiff was saddled with the responsibility to keep watch over them. The reasonable answer one would expect is “No” and I so hold. The claim for this sum, in my view, is not only frivolous, it is speculative and it is accordingly dismissed.
The other item, which is for loss of one of a block-making machine which the plaintiffs alleged to have unlawfully and willfully detained thus depriving the actual owner of its use for 112 weeks and for which the counter-claimant had to pay, not only N2,240:00 but also N1,000:00 for the said machine which was said to have damaged for non-use … I have held that the counter-claimant made an outrageous incursion to recover possession of the land in dispute. He has since completed the building and now resides in it and yet he wants me to believe that along the line of all the events that led to this action he could not remove a block-making machine while the building operations confirmed … until completion. The claim is not only vexatious and frivolous; it was an attempt to becloud an otherwise clear case of unlawful and outrageous incursion on the plaintiff by the 2nd defendant before this court. The claim is refused and it is hereby dismissed.”
It is perhaps necessary to say here that the 2nd defendant/cross-appellant claimed N4,680:00 as special damages and N3,320:00 as general damages. It is a settled statement of law that special damages are such that the law does not infer from the nature of the act complained of. They do not follow in the ordinary course. They are exceptional in their character and they must therefore be claimed specially and proved strictly. After a careful examination of the testimony of the 2nd defendant/counter-claimant on the items of special damages claimed, I have no hesitation to say that the special damages were not strictly proved as required by law. As I have said, N5,320:00 is the amount claimed as general damages. The court below dismissed this leg of claim (special and general damages). Again, general damages as distinct from special damages, are such as the law will presume to be the direct, natural or probable consequence of the act complained of. See Odulaja v. Haddad (1973) 11 SC 357. Once more, I pause to make same comments on the failure of the court below to make the assessment of damages due to the defendant regardless of the fact that it adjudged that leg of claim to be unmeritorious. The Supreme Court which is the highest court of our land has directed in a number of judicial decisions that even if a trial court found against the plaintiff or a defendant/counterclaimant, once any of them claims a relief in damages, the trial court notwithstanding that it has found against that party must proceed to assess the relevant award in monetary terms so that if such a party with such a relief succeeds on appeal, there will be no difficulty in settling the necessary figures of an award and the necessity of sending the case back for such an assessment would have been avoided. See (1) Okupe v. Ifemebi (1974) 3 SC 97 and (2) Dumbo v. Idugboe (1983) 1 SC NLR 29. However, failure to so assess by the trial court does not debar the appellate court from so doing.
This court can make assessment of the award of damages in the exercise of the powers vested in it by Section 16 of the Court of Appeal Act. Giving that there is satisfactory proof of the special damages, I would say that the 2nd defendant/cross-appellant would have been entitled to the sum of N4,680:00 as special damages. As I have said, the 2nd defendant/cross-appellant claims N5,320:00 as general damages. The court below having failed to perform the duty cast upon it to assess the damages to avoid endless litigation and prevent unnecessary expenses which will likely result if the case were to be sent back to the court below for assessment of general damages, I think this is one of those appropriate cases in which an appellate court can assume the duty. See Int. (Nig.) Ltd. v. Aderemi (1999) 8 NWLR (Pt. 614) 268. Armed with this decision of the Supreme Court, I award the 2nd defendant/cross- appellant the sum of N4,000:00 as general damages. The 3rd leg of the counter-claim is for an order of injunction to restrain the plaintiff. It is settled law that where damages are awarded for trespass to land and there is an ancillary claim for injunction the court will grant that injunction. See Obanor v. Obanor (1976) 2 SC 1. I therefore make an order of injunction restraining the plaintiff and all those claiming through or by him from going into the land. In the 3rd leg of the reliefs sought, the 2nd defendant/counter-claimant is asking the court to order the plaintiff and the 2nd defendant to the counter-claim (The Registrar of Titles, Lagos State) to deliver to this Honourable Court for cancellation the purported Deed of Lease dated 17/4/64 and registered as 45/45/1443 in Lagos Registry. Suffice it to say that the plaintiff predicated his case on the afore-mentioned Deed of Lease. Let me say that, the law remains immutable, that only a party to a deed of conveyance or a deed of lease can apply to the court to have it set-aside. See (1) Ordor v. Nwosu & Anor.(1974) 1 All N.L.R. (Pt. 2) 478 and (2) Ayanboye v. Balogun (1990) 5 NWLR (Pt. 151) 392. The 2nd defendant/cross-appellant is a stranger to the deed of lease and therefore any court, for that matter is lacking in legal power to set aside the said deed of lease at the instance of the 2nd defendant/cross-appellant. But the claim is for the cancellation of the deed of lease. The word “Cancel” is defined in the New Edition of the Chambers Dictionary 20th Edition to mean, word “cross out, to annul or suppress, to abolish or wipe out.” Again the word “Void” in the same dictionary is defined to mean empty, deserted, unoccupied, not binding in law, null or invalid. Where a plaintiff seeks that a transaction or an instrument is declared null and void, if found to be void, the court will declare it as such but not set it aside as there is nothing to set-aside. See (1) Lahan & Ors. v. Lajoyetan ?& Or. (1972) 1 All NLR (Pt. 2) 217, (2): Tika-Tore Press Ltd. v. Abina (1973) 4 SC 63; (3) Ayanboye v. Balogun (1990) 5 NWLR (Pt. 151) 392 and (4) Foko v. Foko (1968) NWLR 441. From the facts of the case at hand the irresistible conclusion that must be reached is that the Deed of Lease Registered as No. 45/45/1448 must be declared void and I so declare it.
In conclusion and from all I have said supra, the appeal of the plaintiff (Sunday Omoyinmi) which is lacking in merit is hereby dismissed in its entirety and consequently an order is hereby made dismissing all the claims he formulated before the court below. The cross-appeal of the defendants/cross-appellants succeeds in part and judgment is hereby entered in favour of the 2nd defendant counter-claimant in the following terms:
(1) The 2nd defendant/counter-claimant is hereby declared to be the person entitled to a Certificate of occupancy in respect of the land in dispute known as 5 Oseni Street, Surulere and shown on the Plan No. D388 attached to Exhibit 2D2 and a replicate of the Plan attached to Ex. D.
(2) (i) The counter-claim for special damages of N4,680:00 is hereby dismissed.
(ii) The 2nd defendant/cross-appellant is awarded the sum of N4,000:00 as general damages against the plaintiff as respondent to the cross-appeal for trespass committed by the plaintiff on the said land.
(3) An order of injunction is hereby made restraining the plaintiff and all those claiming through or by him from coming into the land in dispute to commit further acts of trespass.
(4) It is hereby ordered that the Deed of Lease dated 17th April, 1964 and Registered as No. 45 at Page 45 in Volume 1448 in the Lands Registry in the Office at Lagos be delivered by the plaintiff for cancellation and same shall be expunged by the Registrar of Titles, Lagos State from the Register of Deeds.
For the avoidance of doubt, the judgment of the court below awarding N1,221:00 as damages to the plaintiff for unlawful damage caused by the 1st defendant/counter-claimant is hereby set-aside.
The defendants/cross-appellants are entitled to costs which I assess in their favour but against the plaintiff/appellant as respondent to the cross-appeal at N3,000:00 at the court below and N4,000:00 in this court.
Other Citations: (2000)LCN/0677(CA)