IN THE HIGH COURT OF JUSTICE

OF EDO STATE OF NIGERIA

IN THE BENIN JUDICIAL DIVISION
HOLDEN AT BENIN CITY
BEFORE HIS LORDSHIP, HON.JUSTICE P.A. AKHIHIERO
ON TUESDAY
THE 19TH DAY OF JULY, 2022.

BETWEEN: SUIT NO. B/173/2021

DR. PETER I. OZO-ESON ………………………………… CLAIMANT
AND
MR. JOHN ETINOSA EKUASE ………………………. DEFENDANT

JUDGMENT
The Claimant instituted this suit against the Defendant vide a writ of summons
dated the 18th of March, 2021 claiming as follows:
(a) A declaration that the Claimant is the owner and person entitled to
statutory right of all that parcel of land measuring 100 feet by 100 feet
gcovering an area of approximately 950.464 square meters lying and
situate at Okhuoromi Village and covered by property survey Plan No.
MEA/ED/666/2018 dated the 27th of November, 2018.
(b) An order of perpetual injunction restraining the Defendant, his agents,
servant and/or privies from further trespassing on the land
aforementioned.

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 (c) N20, 000,000.00 (Twenty Million Naira) as general damages for
trespass.
The Writ of Summons, Statement of Claim and other accompanying processes
were served on the Defendant but he failed to attend the Court so the hearing
commenced without him.
At the hearing, the Claimant testified that he is the owner of a parcel of land
measuring 100 feet by 100 feet situate and lying at Okhuoromi Village, known as
Ward 36 A, now Ward 2, Benin City covered by Property Survey Plan No.
MEA/ED/666/2018 dated 27th November, 2018. He said that he acquired the land by
a Deed of Transfer dated 29th day of October, 2018. That upon acquiring the
aforementioned parcel of land from his predecessor-in-title, he took possession and
commissioned a registered Surveyor to survey the part of the land which he purchased.
The Deed of Transfer was admitted as Exhibit A at the trial while the Survey Plan was
admitted as Exhibit B.
He stated that the said parcel of land was part of the larger parcel of land
granted to one Mr. Stephen I. Osagie his predecessor – in – title who is a native and
prominent member of the Okhuoromi Community, vide an Application for Allotment
of Building Plot made through the Elders/Plot Allotment Committee, Okhuoromi
Village which said application was duly approved on the 12th of March, 2018.
He stated that the Okuoromi Community land was de-reserved for the
Community by the Edo State Government several years ago.
He maintained that before the grant of the land to his predecessor –in – title, he
was taken to the land by the Community Pointers on the instruction of the said
Elders/Plot Allotment Committee, was shown the entire land measuring 100 feet by
200 feet and they reported back to the said Plot Allotment Committee who upon been
satisfied that the land was free, allocated it to his predecessor – in – title.
He said that his predecessor-in title was put in possession of the entire land
without any disturbance from anybody and he demarcated the land by a wall fence. He
alleged that before the allocation of the land to his predecessor-in-title, the Egbiri
Community had laid claim to the parcel of land along with other lands during their
boundary dispute with the Okhuoromi Community. He said that the said boundary
dispute was eventually resolved by the palace of the Oba of Benin ceding the land
including the one now in dispute to the Okhuoromi Community. He alleged that before

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the said boundary resolution, the Egbiri Community had put a fence across the land
now in dispute.
The Claimant stated that after taking possession of the land, he erected an iron
gate on the land without let or hindrance. He said that he also commenced the process
of obtaining a Certificate of Occupancy from the Edo State Government through the
Edo State Geographic Information Service.
He said that when he went on a routine check on the land in late January, 2021,
he discovered that the Defendant had broken into his land by pulling down the iron-
gate and destroying part of the fence. He tendered some photographs showing the
damages and destruction of the gate and fence and they were admitted as Exhibits C
and C1.
He alleged that on meeting with the Defendant, he disclosed that he was been
relocated to his parcel of land by someone else who sold a parcel of land to him. That
in spite of his warning, the Defendant continued to lay foundation on his land without
his consent and authority, hence he instituted this suit against the Defendant.
Upon the conclusion of the Claimant’s evidence, the matter was adjourned for
cross examination and the Court ordered that fresh hearing notice should be issued and
served on the Defendant. The Hearing notice was served on him but he failed to appear
in the Court so the Court foreclosed him and the suit was adjourned for Defence. The
Defendant never showed up in Court to defend the suit so the matter was adjourned
for final address.
In his final address, the learned counsel for the Claimant, Idemudia
Ilueminosen Esq. formulated a sole issue for determination as follows:
“Whether from the circumstance of this case, the Claimant is not entitled to his
reliefs claimed?”
Thereafter the learned counsel articulated his arguments on the sole issue for
determination.
He submitted that from the pleadings and evidence led, the Claimant has proved
his case and is entitled to the reliefs claimed. He maintained that it is settled law that
where evidence is unchallenged or un-contradicted the onus of proof on the claimant
is satisfied on minimal proof. See MOBIL OIL (NIGERIA) LTD V. NATIONAL OIL
& CHEMICAL MARKETING CO. LTD (2009) 9 NWLR (PT.671) P.44.

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He posited that by paragraphs 3 to 18 of the Claimant’s witness written statement , the
Claimant explained how he became the owner of the parcel of land measuring 100feet
by 100feet situate at Okhuoromi Village, then known as Ward 36A, now Ward 2,
Benin City and covered by Property Survey Plan No. MEA/ED/666/2018 dated 27th
day of November, 2018 which said Property Survey Plan is in the name of the
Claimant. He referred to exhibits “A” and “B” which are the Deed of Transfer
evidencing the purchase of the land by the Claimant from the original owner and the
Property Survey Plan covering the land respectively.
He said that in paragraphs 19 to 24 of the said Claimant’s Written Statement on
Oath, the Claimant demonstrated clearly the acts of trespass of the Defendant on the
said land and he referred to exhibits C and C1 to buttress his point. He said that in spite
of the cogent and credible evidence of the Claimant in proof of his case, the Defendant
refused and/or neglected to challenge or rebut the evidence. He submitted that where
a party fails to utilize the opportunity to present his case, he cannot later be heard to
complain of lack of fair hearing and he relied on the case of CHAMI V. UBA PLC
(2010) 6 NWLR (PT.1191) P. 474 at 497, paragraph E.
He submitted that the Claimant’s evidence is un-challenged and he referred to
the case of MOBIL OIL (NIGERIA) LTD V. NATIONAL OIL & CHEMICAL
MARKETING CO. LTD (supra), where the court held that where evidence is
unchallenged or un-contradicted, the onus of proof is satisfied on minimal proof, since
there is nothing on the other side of the scale. He also relied on the case of ADELEKE
V. IYANDA (2001) 13 NWLR (PT. 729) P.1 at pages 22-23, paras A-C.
He urged the Court to hold that the evidence of the Claimant is cogent and
credible and thus entitled to his reliefs.
He further submitted that in view of the fact that the Defendant trespassed on
the Claimant’s said parcel of land, the Claimant is entitled to damages against the
Defendant for his acts of trespass and he urged the Court to grant all the Claimant’s
reliefs in this suit.
I have carefully considered all the processes filed in this suit, together with the
evidence led in the course of the hearing and the address of the learned Counsel for the
Claimant.
As I have already observed, the Defendant did not put up any defence to this
suit. Thus, the evidence of the Claimant remains unchallenged.

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 The position of the law is that evidence that is neither challenged nor debunked
remains good and credible evidence which should be relied upon by the trial court,
which has a duty to ascribe probative value to it. See the following decisions on the
point: Monkom vs. Odili (2010) 2 NWLR (Pt.1179) 419 at 442; and Kopek
Construction Ltd. vs. Ekisola (2010) 3 NWLR (Pt.1182) 618 at 663.
Furthermore, where the Claimant has adduced admissible evidence which is
satisfactory in the context of the case, and none is available from the Defendant, the
burden on the Claimant is lighter as the case will be decided upon a minimum of proof.
See: Adeleke vs. Iyanda (2001) 13 NWLR (Pt.729) 1at 23-24.
However, notwithstanding the fact that the suit is undefended, the Court would
only be bound by unchallenged and uncontroverted evidence of the Claimant if it is
cogent and credible. See: Arewa Textiles Plc. vs. Finetex Ltd. (2003) 7 NWLR
(Pt.819) 322 at 341.
Even where the evidence is unchallenged, the trial court still has a duty to
evaluate it and be satisfied that it is credible and sufficient to sustain the claim. See:
Gonzee (Nig.) Ltd. vs. Nigerian Educational Research and Development Council
(2005) 13 NWLR (Pt.943) 634 at 650.
Applying the foregoing principles, I will evaluate the evidence adduced by the
Claimant to ascertain whether they are credible and sufficient to sustain the Claim.
I am of the view that the sole Issue for Determination in this suit is: whether the
Claimant is entitled to the reliefs claimed in this suit.
In a claim for a declaration of title to land, the burden is on the Claimant to
satisfy the Court that he is entitled, on the evidence adduced by him, to the declaration
which he seeks. The Claimant must rely on the strength of his own case and not on the
weakness of the Defendant’s case. See: Ojo vs. Azam (2001) 4 NWLR (Pt.702) 57 at
71; and Oyeneyin vs. Akinkugbe (2010) 4 NWLR (Pt.1184) 265 at 295.
It is now settled law that the five ways of proving ownership of land are as
follow:
I. By traditional evidence;
II. By the production of documents of title;
III. By proving acts of ownership;

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 IV. By proof of possession of connected or adjacent land in circumstances
rendering it probable that the owner of such connected or adjacent land
would in addition be the owner of the land in dispute; and
V. By acts of long possession and enjoyment of the land.

See: Idundun vs. Okumagba (1976) 9-10 S.C. 227.

The point must be made that any one of the five means will be sufficient to prove
title to the land as each is independent of the other. See: Nwosu vs. Udeaja (1990) 1
NWLR (Pt.125) 188; and Anabaronye & Ors. vs. Nwakaihe (1997) 1 NWLR (Pt.482)
374 at 385.
In the instant suit, from the tenor of his evidence the Claimant appears to be
relying on the second and third means of proof, to wit: proof by the production of
documents of title and by acts of ownership.
On the proof by the production of title documents, the Claimant tendered his
Deed of Transfer which was admitted as Exhibit A at the trial while the Survey Plan
was admitted as Exhibit B. The Claimant’s main document of title is the Deed of
Transfer. It is evident that Exhibit A is not a registered legal instrument so it cannot
convey legal title to the land.
However, it is settled law that a purchaser of land who has paid and taken
possession of the land by virtue of a registrable instrument which has not been
registered acquires an equitable interest which can only be defeated by a purchaser for
value without notice of the prior equity. See the following cases: Agboola vs.U.B.A.
Plc. (2011) 11NWLR (Pt.1258) 375 at 415; Dauda vs. Bamidele (2000) 9 NWLR
(Pt.671) 199 at 211; and Goldmark (Nig.) Ltd. vs. Ibafon Co. Ltd. (2012) 10 NWLR
(Pt.1308) 291 at 349-350.g
In the recent case of: Atanda vs. Commissioner for Lands and Housing, Kwara
State & Anor. (2018) 1 NWLR (Pt.1599) 32 at 55, Sanusi JSC, delivering the lead
judgment of the Supreme Court restated the position thus:
“A registrable instrument which has not been registered is also admissible only to
establish or prove equitable interest or to prove payment of purchase price.”
Flowing from the foregoing, I am of the view that although Exhibit A, per se
cannot establish legal title to the land in dispute, it will suffice to vest an equitable
interest on the Claimant, which can only be defeated by a purchaser for value without

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notice of the prior equity. In the absence of any challenge to Exhibit A, I hold that it
will suffice to establish the Claimant’s title to the land in dispute.
On acts of ownership and possession, the Claimant led unchallenged evidence
to prove that immediately after the purchase of the land, he took possession of the land
and erected an iron gate on the land without let or hindrance. He said that he also
commenced the process of obtaining a Certificate of Occupancy from the Edo State
Government through the Edo State Geographic Information Service.
From the uncontroverted evidence of the Claimant, this evidence of carrying out
some developments on the land amount to acts of possession which is one of the ways
of proving title to land. This is further proof of the Claimant’s title. See: Section 35 of
the Evidence Act, 2011 and the case of: Alikor vs. Ogwo (2010) 5 NWLR (Pt.1187)
281 at 312.
On the relief of a perpetual injunction against the Defendant, it is settled law
that once trespass has been proved, an order of injunction becomes necessary to
restrain further trespass. See: ADEGBITE VS. OGUNFAOLU (1990) 4 NWLR (PT.
146) 578; BABATOLA VS. ALADEJANA (2001) FWLR (PT. 61) 1670 and
ANYANWU VS. UZOWUAKA (2009) ALL FWLR (PT. 499) PG. 411.
In the event, I hold that the Claimant is entitled to a perpetual injunction to
restrain the Defendant, his Agents, privies or servants from any further acts of trespass
on the Claimant’s land.
On the claim for the sum of N20,000, 000:00 (Twenty Million Naira) as general
damages for trespass, it is settled law that general damages are presumed by law as the
direct natural consequences of the acts complained of by the Claimant against the
Defendant. The assessment of general damages is not predicated on any established
legal principle. Thus, it usually depends on the peculiar circumstances of the case. See:
Ukachukwu vs. Uzodinma (2007) 9 NWLR (Pt.1038) 167; and Inland Bank (Nig.)
Plc vs. F & S Co. Ltd. (2010) 15 NWLR (Pt.1216) 395.
The fundamental objective for the award of general damages is to compensate
the Claimant for the harm and injury caused by the Defendant. See: Chevron (Nig.)
Ltd. vs. Omoregha (2015) 16 NWLR (Pt.1485) 336 at 340.
Thus, it is the duty of the Court to assess General Damages; taking into
consideration the surrounding circumstances and the conduct of the parties. See:
Olatunde Laja vs. Alhaji Isiba & Anor. (1979) 7 CA.

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 The quantum of damages will depend on the evidence of what the Claimant has
suffered from the acts of the Defendant.
In the instant case, the Claimant gave evidence of how when he went on a
routine check on the land in late January, 2021, he discovered that the Defendant had
broken into his land by pulling down the iron-gate and destroying part of the fence. He
tendered some photographs showing the damages and destruction of the gate and fence
and they were admitted as Exhibits C and C1.
However, the Claimant did not elaborate on the extent of destruction or losses
occasioned by the Defendant’s trespass. For example, we do not know the monetary
value of the gate that was destroyed by the Defendant. Going through the entire gamut
of the Claimant’s evidence, there is no evidence of the quantum of damages suffered
from the action of the Defendant.
Generally the trial court has discretion as to the quantum of damages it would
award in a claim of damages for trespass. The assessment does not depend on any legal
rules- but the discretion of court is however limited by usual caution or prudence and
remoteness of damage when considering its award of damages. See: U.B.N. v. Odusote
Bookstores Ltd. (1995) 9 NWLR (Pt.421) pg. 558; Solanke v. Ajibola (1969) 1 NMLR
pg. 45; ACB Ltd v. Apugo (2001) 5 NWLR (pt.707) pg. 653; and YENEYIN & ANOR
V. AKINKUGBE & ANOR (2010) LPELR-2875(SC).
I have already found in this judgment that the Claimant has established a better
title to the land in dispute and ascribed lawful possession to him. The law is well settled
that trespass is actionable per se. This means the entitlement for damages for trespass
is not hinged on proof of actual or any damage by the Claimant. See: CHUKWUMA
V IFELOYE (2008) 18 NWLR PT. 1118, 204; and REGISTERED TRUSTEES OF
MASTER'S VESSEL MINISTRIES (NIG) INCORP V EMENIKE & ORS
(2017) LPELR - 42836(CA). For trespass however the quantum is usually nominal.
The rationale for this is predicated on the fact that a Claimant is entitled to damages
for trespass even if no damages or loss is caused to him and if any damage or loss is
caused to him as a consequence of the trespass; same is recoverable under special
damages properly pleaded and proved. See AKAOLISA V AKAOLISA (2014) LPELR
- 24148 (CA); and OSUJI V ISIOCHA (1989) 3 NWLR PT 111, 623 AT 634.
In the instant case, the Claimant did not claim special damages neither did he
plead or prove special damages. In the event he is only entitled to nominal damages
which is at the discretion of the Court using the test of a reasonable man. See: Artra

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Industries (Nig.) Ltd. vs. N.B.C.I (1998) 4 NWLR (Pt.546) 357; Ogbechie vs.
Onochie (1988) 4 NWLR (Pt.70) 370. On the whole, the sole issue for determination
is resolved in favour of the Claimant.
The claims succeed and judgment is entered in favour of the Claimant as
follows:
(a) A declaration that the Claimant is the owner and person entitled to statutory
right of ALL THAT parcel of land measuring 100 feet by 100feet covering an
area of approximately 950.464 square meters lying and situate at Okhuoromi
Village and covered by property survey Plan No. MEA/ED/666/2018 dated the
27th of November, 2018;
(b) An order of perpetual injunction restraining the Defendant, his agents,
servant and/or privies from further trespassing on the land aforementioned;
and
(c) N2, 000,000.00 (Two Million Naira) as general damages for trespass.

P.A.AKHIHIERO JUDGE
19 /07/2022

COUNSEL:
Idemudia Ilueminosen Esq. ------------------------------------------------Claimant.
Unrepresented---------------------------------------------------------------Defendant.

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