Gabriel O. Okunzua v. Mrs. E.b. Amosu & ANOR. (1992)



Gabriel O. Okunzua v. Mrs. E.b. Amosu & ANOR. (1992) – SC

by PaulPipAr

⦿ TAG(S)

– Trespass;
– Damages;
– Special Damages;


Gabriel O. Okunzua


Mrs. E.B. Amosu & Anor.


(1992) NWLR (Pt. 248) 416;
(1992) 7 SCNJ 243;
(1992) LPELR-2531(SC);


Supreme Court


S. Kawu, J.S.C.





⦿ FACT (as relating to the issues)

This is a case of trespass. The Appellant, as plaintiff, sued the Respondent, as defendant, at the trial court for trespass. The trial court gave judgement in favour of the Appellant. The Respondent appealed before the Court of Appeal, which overturned the trial court’s decision. The Appellant, dissatisfied, has appealed to the Supreme Court on eight grounds of appeal.

The grounds, without their particulars, are as follows:
1. The Court of Appeal erred in law in holding that the plaintiff in order to prove exclusive possession of the driveway should produce the deed of his lease and plan of the vicinity and that the non-production was fatal to his claim;
1A. The Court of Appeal erred in law when it failed to resolve the contradictions in the pleadings and the evidence of the 1st and 2nd defendants;
2. The Court of Appeal erred in law in its application of the principle of law in Aldridge v. Wright (1927) 2 KB 117 in holding that the 2nd defendant did not derogate from his grant.
3. The learned Justices of the Court of Appeal misdirected themselves in law when they held that the grant to the plaintiff was that of user, not of exclusive user.
4. The Court of Appeal erred in law when it held that the appellant has not satisfied the burden of proving exclusive possession.
5. The Court of Appeal misdirected itself in law when it held, “The plaintiff agreed that his tenancy was oral and from year to year but did not produce the lease to enable the Court examine its terms had the plaintiff produced the lease and plan of the vicinity and thereby proved his case, the need to pray in aid of section 148(d) of the Evidence Act would not have arisen”.
6. The Court of Appeal erred in law in reversing the findings of fact of the trial court when there was no legal basis for such reversal having regard to the principles of law guiding the interference of appellate court on reversal of findings of fact by trial courts.
7. The Courts of Appeal was wrong in law in requiring the plaintiff to tender a plan of the vicinity in order to prove his case and that its non-production was fatal to his claim.
8. The Court of Appeal erred in law when it reduced the award of special damages, and cancelled the award of general damages against the 2nd defendant and the award of costs.

Available:  Lord Samuel Akhidime v. The State (1984)


1. Was the Court of Appeal correct in its finding that it is the plaintiff and not the defendant who is caught by the provision of section 148(d) of the Evidence Act when he (the plaintiff) failed to produce his deed of lease and plan of the vicinity when the evidence led point to an oral agreement and when a plan of the entire land was tendered by the 2nd defendant?

2. Was the Court of Appeal correct in reversing the High Court findings on the issue of trespass on the ground that the evidence supported a case of user but not exclusive user?

3. Was the Court of Appeal correct in relating the question of exclusive user to the common intention of the parties when the question never arose at any time prior to the institution of the proceedings in the High Court but failing to take account that the lessor (2nd defendant) did not expressly reserve any right over the tenement granted?

4. Did the Court of Appeal correctly apply the decision in Aldridge v. Wright (1929) 2 KB 117 to the facts of this case having regard to the issue in (3) above?

5. In all the above considerations, was the Court of Appeal justified in reversing the specific findings of the lower court and substituting their own findings for the same?

6. Did the Court of Appeal correctly evaluate the evidence on special damages when they reduced the same from N37,700.00 when such evidence stands unchallenged and uncontradicted?




i. Clearly what was in dispute between the plaintiff and the respondents in respect of which issues were joined and evidence led at the trial, was whether the appellant was granted the exclusive use of the driveway by the 2nd respondent. That was the claim made by the appellant in this case and the burden was on him to establish his claim as required under sections 135 and 136 of the Evidence Act. The 2nd respondent’s title to the properties involved was not in issue and, with respect, the learned trial Judge was in error to have based his decision substantially on the failure of the 2nd respondent to produce his title deed.



i. It was the submission of the learned counsel for the appellant that the decision in Aldridge v. Wright (supra) was not correctly applied to the facts of this case. Now two of the propositions enunciated in that case are (1) that on a grant of a tenement by the owner the grantor is obliged to pass to the grantee “all those easements which are necessary to the reasonable enjoyment of the property granted,” and (2) that if the grantor intends to reserve any right over the tenement granted, it is his duty to do so expressly. With regard to the first proposition, it was not the case of the appellant that as the assignee of the lease with the College of Medicine, the 2nd respondent did not pass to him all the easements appurtenant to the tenement for the reasonable enjoyment of the property granted. His case was that the driveway in dispute was granted to him by the 2nd respondent for his exclusive use, a claim which he was unable to substantiate. The application of the second proposition did not arise as the 2nd respondent did not claim that he made any special reservation for himself as to the use of the driveway. His evidence was that he granted permission to the appellant and his wife and other tenants to use driveway. In this regard, he testified as follows: “The road by the side which I said is Nimota Eyiwuawi Road is shown on Exhibit D3. The road in front which was not fully ready was Ademola Debayo Road. I then gave permission for the plaintiff and his wife to be using Nimota Eyiwuawi Road with other tenants, and the plaintiff and his family were using that road. That is the road now in dispute.” I do not, in the circumstances accept the submission of the appellant’s counsel that the Court of Appeal did not correctly apply the principles enunciated in Aldridge v. Wright (supra) to the facts of this case.

Available:  Adeyemi Ogunnaike v. Taiwo Ojayemi (1987)

6. FOR ISSUE 6, THE COURT STATED: “Now in considering the award of damages, the Court of Appeal in its’ judgment at page 324 of the record states as follows:

“Thus, in the case on hand, it might have been possible to confirm the award made by the learned trial Judge but for two reasons. The first is that the claim was for N50.000.00 general and special damages. The award was N37,700.00 for special damages but no reasons were given for the amount awarded as special damages since, with regard to trespass, special damages had to be strictly proved, whereas this is not so in nuisance. Secondly, the only evidence in proof of special damage amounted to N8,900.00 (see pages 78 of the Supplementary Record of Appeal) and so it is not easy to understand how the amount rose to N37,700.00. The respondent (P.W 5) was not cross-examined on the amount of N8,900.00 proved as special damages, and this might have been enough to uphold the award. However, it includes an item for N3,200.00 which was for “fertilizers, insecticides, fungicides and bactericides at N800.00 per year for 4 years.” The period covered by the years is not stated, nor is the cost of each item given, save that they all cost N800.00 per year. Accordingly, I disallow this item. The respondent is accordingly entitled to the balance of N5,700.00 as special damages.”

Available:  National Insurance Corporation of Nigeria (NICON) V. Power & Industrial Engineering Company Ltd. (3 January 1986, SC.194/1984)

The Supreme Court stated further:

“Now, it is trite law that special damages must be strictly proved by the person who claims to be entitled to them, the nature of the proof depending on the circumstances of each case. However in the case of Oshinjinrin & Ors. v Elias & Ors. (1970) 1 All NLR 153 at 156, Coker. J.S.C. delivering the judgment of this court explained what strict proof entails as follows: ‘Undoubtedly, the rule that special damages must be strictly proved applies to cases of tort. In effect, the rule requires anyone asking for special damages to prove strictly that he did suffer such special damages as he claimed. What is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such a character as would suggest that he indeed is entitled to an award under that head otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operates.”
“Having carefully examined the evidence adduced at the trial, I have no hesitation in coming to the conclusion that the award of N3,200.00 for “fertilizer, insecticides, fungicides and bactericides at N800.00 per year for 4 years” was rightly disallowed by the Court of Appeal. I accordingly confirm the award of N5,700.00 as special damages to be paid by the 1st respondent to the appellant.”



S. 148(d) of the Evidence Act provides as follows:
“148. The Court may presume the existence of any fact which it thinks likely to have happened. regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume: (d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”






The presumption is that the decision of a court of trial of facts is correct and that presumption must be disproved by the appellant before an appellate court can interfere. – Kawu, JSC. Okunzua v. Amosu (1992)

For an easement of necessity is one which in the particular circumstances the law creates and makes appendant to the dominant tenement by virtue of the doctrine of implied grant to meet the necessity of the particular dominant tenement. Such an easement is not merely necessary for the reasonable enjoyment of the dominant tenement, but without it the tenement cannot be used at all. – Nnaemeka-Agu, JSC. Okunzua v. Amosu (1992)




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