Robert Agwaramgbo & Anor V. Cyriacus Idumogu (2007)
LawGlobal-Hub Lead Judgment Report
JAMES OGENYI OGEBE, J.C.A.
The respondent sued the appellant in Onitsha High Court seeking for a declaration that he was entitled to possession and use of pitch No. PD/54A in Ogbaru main market with other reliefs. Pleadings were duly exchange and the appellants counter-claimed against the respondent claiming damages for trespass and for an order of injunction.
The case of the respondent is that he applied for and was allocated a shed/pitch No. PD/54A at Ogbaru main market, on the 17th May, 1994 by the Ogbaru Local Government Authority. He was also issued allocation paper and a file code certificate. He also paid stallage fees to the Local Government and was issued receipts.
The appellants were allocated a kiosk with allocation No. D4/KS/1 by the same Local Government.
The gable ends, kiosk and pitch are allocated as mere open spaces and each allotee now constructs a structure on it; some with zink, plank or with cement.
The appellants in restructuring their kiosk of zink and plank structure over-built and incorporated the space allocated as pitch to the respondent. The appellants after decking the structure with cement, also constructed a gate.
On 17/12/98, the respondent by a writ of summons dated 17/12/98 sued the appellants at the Onitsha High Court of Anambra State claiming against the appellants for the following reliefs.
(a) Declaration of the Hon. Court that the plaintiff is entitled to the possession and use of the pitch No. PD/54A in the Ogbaru main market.
(b) Order of the Hon. Court that the defendants remove the gate they have constructed on the plaintiff’s pitch PD/54A in the Ogbaru main market.
(c) Order of the Hon. Court that the defendants restore the stall of the plaintiff which they destroyed before erecting the gate;
OR:
Order that the defendants pay to the plaintiff one hundred and fifty thousand Naira (150,000.00) being the cost of the stall which the defendants destroyed.
On 28/1/99, the appellants filed their statements of defence and counter-claim from the respondent for the following:-
“(1) The sum of N1,000,000 (one million Naira) for general damages for unlawful trespass on the stall No.D4/KS/1 Ogbaru main market in lawful occupation and possession of the defendants.
(2) The sum of N200,000.00 (two hundred thousand Naira) being specific damages caused by the plaintiff to the defendants stall and also the cost of installing a gate on the cracked side of the wall.
(3) An order of injunction restraining the plaintiff, his agents, workers, aids and privies from further trespassing into the defendants stall No. D4/KS/llying and situate at Ogbaru main market in Ogbaru Local Government Area of Anambra State.”
At the close of evidence the appellants by an application dated 17/10/2001 prayed the Hon. Court for an inspection of and visit to the locus in quo in the above case particularly Kiosk D4/KS/1 and lying, situate at Ogbaru main market.
On 31/5/2002, the court proceeded to the locus in quo and thereafter the parties addressed the court and the trial court reserved its judgment for 19/7/2002.
On 4/11/2002, the trial court delivered its judgment in favour of the respondent. The appellants being dissatisfied with the judgment have appealed to this court.
The learned counsel for the appellants formulated 5 issues for determination as follows:-
“1. Whether the trial court was right in law in granting relief not claimed and not proved by the plaintiff/respondent and if the order is incidental or ancillary whether it can be granted without being proved and without further address by the parties?
- Considering the nature of pleadings and evidence before the trial court whether the trial court was right in law in dispensing with the need for survey plan or composite plan of the area in dispute market and whether the judgment reached on dispensing with them is certain and easy to be complied with or enforced.?
- Whether considering the conflicts or contradiction in the plaintiffs case, the totality of evidence and pleadings before the trial court the plaintiff proved his case and if the answers is in the negative whether the trial court was not in error in giving judgment of the plaintiff?
- Whether the trial court was right in law in giving evidence of what he purportedly saw at the locus in quo in his judgment without prior recording of any observation at the locus in quo?
- Whether the trial court error in law in raising issues suo motu in the jdugment and giving judgment on it without first asking for comments fromt eh parties or their counsel and whether it occasioned a miscarriage of justice?”
The learned counsel for the respondent also filed a brief and formulated 2 issues for determination as follows:-
“1. Whether the court was right in holding that pitch PD/54A was allocated to the respondent, is in existence and on the ground.
- Whether on the nature of pleadings and the totality of the evidence led the court was right in holding that the plaintiff was entitled to the reliefs sought.”
While arguing the appeal the learned counsel for the respondent abandoned his preliminary objection to the competence of the appeal and it is herby struck out.
The court has always warned against proliferation of issues. See Agbeotu v. Brisibe (2005) 10 NWLR (Pt.932) 1. The appellants’ issues are too numerous and in my view the second issue formulated by the respondent is the sole issue necessary for the determination of this appeal.
The main argument of the learned counsel for the appellants is that a trial court should not grant a relief not claimed by a claimant. He submitted that the relief granted by the trial court was not in any way incident or ancillary to the relief proved and granted in order to make it effectual as required by law.
He referred to the case of Layinka v. Gegele (1993) 4 KLR 51 at page 64; (1993) 3 NWLR (Pt. 283) 518, where Ogundare, JSC of blessed memory said:-
“With respect to the learned justice of the Court of Appeal, it would appear that their reasoning in affirming the order of the learned trial Judge runs counter to laid down principles.
It is to be observed that the plaintiff did not claim for an injunction. The case originated in a High Court where actions are tried on pleadings.
The rule of Court that is Order 34 rule 1 of the Kwara State High Court (Civil Procedure Rules) 1975 on which the Court of Appeal anchored its affirmation of the order of the trial Judge will only apply where the order made is ancillary to the claims allowed by the court. That is not the case here. I have no hesitation whatsoever in setting aside the order complained of.”
There was no evidence by the respondent or PW2 Udokwu Onyedibeamma that pitch PD/54A was side by side with D4/KS/1 in Ogbaru main market. The learned counsel further submitted that PW2, an official of the Local Government who testified under cross-examination said that he did not know the location of the disputed pitch could not have possibly identified the pitch during the visit to the locus in quo.
The learned counsel for the appellants asked this court to allow the appeal for the following reasons: that the respondent failed to plead and prove the exact location of the pitch No. PD54A in Ogbaru main market, he failed to prove the nature of trespass and presented a contradictory and inconsistent evidence before the trial court, and the trial court speculated substantially in its judgment.
The learned counsel urged the court to grant the counter-claim because it was proved before the lower court and the evidence of the appellants was unchallenged by the respondent.
In reply the learned counsel for the respondent submitted that there was clear evidence of the existence of the disputed pitch in the market and that the trial court clearly evaluated the evidence led by both parties and came to a right decision based on the totality of credible evidence.
He referred to the case of Shell Petroleum Dev. Co. of Nig. Ltd. v. Otoko (1990) 6 NWLR (Pt. 159) 693. The learned counsel further submitted that an appellate court will not ordinarily interfere with the findings of fact made by a trial court except in certain circumstances.
He referred to the case of Oduwole v. Aina (2001) 17 NWLR (Pt. 741) I at page 47 where the Court of Appeal held as follows:-
With reference to the findings of fact in the suit, it is well established that evaluation of evidence and ascription of probative value to such evidence are the primary function of a trial court which saw, heard and assessed the witnesses. Where therefore a trial court clearly evaluated the evidence of the parties and justifiably appraised the facts, it is not the business of the Court of Appeal to substitute its own views of the facts for those of the trial court. However, an appellate court will interfere where there are special circumstances justifying such or where the findings are unsound or where the trial court has failed to properly evaluate the evidence before it as a result of which it reached a decision which is perverse. An appellate court will in the interest of justice disturb, alter, reverse or set aside such findings…”
It is elementary principle of law that any person who wishes the court to believe in the existence of a particular fact has a duty to prove that fact. See the cases of Abana v. Obi (2005) 6 NWLR (Pt.920) 183 and Akinyele v. Afribank Plc (2005) 17 NWLR (Pt. 955) 504. In the instant case the respondent wanted the court to believe that the appellants trespassed into his pitch No. PD/54A. It was his duty not only to prove the existence of the pitch which from all the documentary evidence tendered proved the existence of that pitch in Ogbaru main market, but also to prove the exact location of the pitch and the area trespassed into by the appellants. See the case of Osiegbu v. Okoh (2005) 16 NWLR (Pt. 950) 58.
Throughout the entire evidence of the respondent and his sole witness PW2 no where in their evidence did they describe the area of the pitch with certainty. Indeed PW2 who was an official of the Local Government, owners of the market testified that he did not know the location of the pitch. It was strange therefore for him to go to the locus in quo and begin to give evidence of the location of the pitch. The trial court was therefore wrong in relying on the evidence of PW2 to give judgment in favour of the respondent.
I will not lose sight of the fact that the appellants got their allocation in the market as far back as 1985 while the respondent came in 1994. It follows therefore that the appellants were well established before the respondent came into the disputed space.
On the counter-claim it is my view that there was no credible evidence as to the exact dimension of the appellants’ space for their action of trespass to succeed.
For all I have said in this judgment there is merit in the appeal and I hereby allow it. I set aside the judgment of the trial court given in favour of the respondent against the appellants and in its place dismiss the respondent’s claim before that court.
However, on the counter-claim I affirm the decision of the trial court dismissing the same. The respondent shall pay costs of N7,500.00 to the appellants for this appeal.
Other Citations: (2007)LCN/2401(CA)
