Chijoke Asiegbu & Anor. V. Chief John Olibie (2008)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A.

This is an appeal against the judgment of High Court of Justice Anambra State (the lower Court for short) in Suit No. 0/6/2004 delivered at Onitsha on 20th July 2006. The respondent herein as plaintiff, took a Writ of Summons at the lower court against the two appellants as defendants, claiming the under-mentioned reliefs:-

(a) A declaration that the plaintiff is the lawful allocated by the Onitsha North Local Government of market stall Number VI/15 situate at Onitsha Main Market and also known as Mandella Square Main Market, Onitsha.

(b) N2,000,000 being damages for trespass.

(c) Injunction restraining the defendants by themselves, their servants or otherwise whosoever from remaining on or continuing in occupation of the said stall.

Upon being served with the Writ of Summons and Statement of Claim, the two defendants in their joint Statement of Defence made a Counter-Claim as below:

(1) A declaration of the court that the Defendants are entitled to Market Stall No. VI/14B situate at the Main Market Onitsha, Onitsha LGA.

(2) N5 million damages for trespass.

(3) Perpetual Injunction restraining the plaintiff, his servants, agents and privies from further trespass into stall No. IV/14B, Main Market, Onitsha.

The facts which gave rise to this appeal as presented by both parties are somehow conflicting. The market stall in dispute, which is No. VI/15 situate at Onitsha Main Market otherwise known as Mandella Square Main Market was initially allocated to one Mr. Ezenagu G. Chukwuma by the said market authority and on 7th February 1995, Mr. Chukwuma transferred the said stall to the plaintiff/respondent herein. The plaintiff/respondent claimed that the defendants/appellants forcibly ejected him out of his own stall through self-help and took over possession of the said stall for the reason that the said stall earlier occupied by the plaintiff was stall No. VI/14B and not VI/15 as they were the proper allocatees of the said stall i.e. No.VI/14B.

On the other hand the defendants/appellants though admitted that they were the allocattees of stall No.VI/14B, even before Mr. Ezenagu Chukwuma transferred stall No. VI/15 to the plaintiff/respondent, the plaintiff/respondent insisted that his stall No. VI/15 was the same with VI/14B, which was occupied by them and was in their possession. The appellants/defendants also accused the plaintiff/respondent of also using his position as one time Chairman of the Local Government and changed the position of the defendants’ stall with the connivance of the staff of the Market authority. In other words, the defendants/appellants claimed that the plaintiff contested that stall No. VI/15 was the same with stall No. VI/14B occupied by them and dispossessed them of their stall No. VI/14B, also through self- help, just to later claim that they were the ones who forcibly ejected him out of the stall. There were other accusations and counteraccusations, which are not of relevance here.

Pleadings were order, filed and exchanged. Hearing commenced in earnest with the parties calling witnesses and tendering documentary evidence. The plaintiff called two witnesses while the defendants called three witnesses.

The learned trial judge in a reserved judgment delivered on 20/7/2006 found in favour of the plaintiff/respondent and also dismissed the defendants’ counter-claim. Aggrieved and dissatisfied with the decision of the lower court, the two defendants appealed to this court.

The appellants’ learned counsel on the 9th July 2007 filed joint brief of argument on behalf of the two appellants, proposed for the determination of this appeal which are reproduced below:

“1. Whether the plaintiff proved his case judging from his pleadings and evidence before the court and the fact that the court was asked to grant a declaration relief (sic)?

2. Whether the trial judge appreciated the issue before him. Whether the stall VI/14B was the same stall (or store) the plaintiff got from Ezenagu Chukwuma G., which was reallocated to the plaintiff by the Onitsha North Local Government on 7th February 1995. Are there difficulties in identification of stalls in Mandella Square Main Market?
3. Whether the trial judge reviewed and properly evaluated Exhibits E, E3 and E4 admitted in evidence, if no, did the non evaluation occasion the miscarriage of justice?
4. Whether the trial judge was right when he decided that the failure of the defendants to institute another action when 0/436/99 was non-suited was because they were not sure of their facts; and
5. Whether the trial judge was right when he said that the case of Governor of Lagos State vs. Ojukwu was different from the instant case, notwithstanding that the defendants were thrown out of their stall by force?
6. Is the plaintiff entitled to damages awarded by the trial court?”

The Respondent’s learned counsel who on 9/7/07 filed his Respondent’s brief of argument dated 13/6/07 formulated three issues for determination, which read thus:-

a) Whether the learned trial judge properly reviewed and evaluated the evidence before him by both parties before he arrived at his judicious and judicial decision that the plaintiff/respondent was the lawful allottee of Market Stall No. VI/15 by Onitsha North Local Government.

b) Whether the learned trial judge was not right when he awarded the sum of N400,000.00 damages against the defendants/appellants for their unlawful acts of trespassing and occupation of the plaintiff/respondent’s Market Stall No. VI/15 situate at Mandella Square Onitsha Main Market; and

c) Whether the Court of Appeal can be invited in this case to interfere with the evaluation of evidence and findings of fact made by the trial court before reaching its decision and award damages.

A close and dispassionate look at the two sets of issues for determination proposed by the learned counsel of the parties made me to be inclined to be guided by those formulated by the respondent’s counsel in the treatment of this appeal, not only because of their being all encompassing and more elegantly couched, but also because they have indeed encapsulated or captured all the issues at stake in the appeal and those issues raised in the appellants’ brief of argument as well. And in treating the appeal I shall consider all the three issues raised by the respondent together since they, in my Opinion, subsumed all the issues raised in the Appellants’ brief of argument.

It is the contention of the learned counsel of the appellants that the plaintiff now respondent sued the defendants as appellants herein at the lower court, claiming declaratory relief that he was the lawful allottee of stall No. VI/15 situate at the Mandella Square Main Market Onitsha, which was earlier allocated to Mr. Ezenagu G. Chukwuma. They further conceded as per their pleadings that there was no dispute between the two parties over stall No. VI/15 at the same market and also conceded that they defendants/appellants were and are still occupying stall No. VI/14B situate at the said market. The learned counsel for appellants went further to pose argument on the allegation of use of thugs by the plaintiff to dispossess the defendants of the stall in dispute. The appellants’ learned counsel also admitted that what his clients occupy by virtue of Exhibit F made in 1993 was stall No. VI/14B and that it was that particular stall that the plaintiff/respondent claimed was reallocated to him as stall NO.VI/11 in 1995. The Appellants’ counsel submitted that the circumstance of the allocation of stall No. VI/15 and VI/14B are not the same because Exhibit E3, a letter titled “Investigative Activities” clearly stated that there was unsystematic numbering as complained by the respondent which require some adjustments they might not require the use of reasonable force to effect the changes and that the occupier of VI/15 has allocation paper for VI/14B in the plan attached.

He further argued that although it is true that facts admitted need not be proved that proposition does not hold in declaration of right to property which the law always require a party claiming to be entitled to the declaration to satisfy the court by evidence that he is so entitled. See the case of Vincent I. Bello vs. Magnus Iweke (1981) 1 SC 101 at 102 per Obaseki JSC.

On the issue of whether the identity of stall No. VI/14B was same with the stall the plaintiff (respondent) purchased from Mr. Ezenagu, Chukwuma, the learned appellants’ counsel submitted that the trial court was wrong to have held that there was no evidence that the stalls were numbered and no evidence was adduced by the defendants as to who showed them the stall they moved into. He argued that the real issue was not whether the defendants have been paying stallage fee.

The learned appellants’ counsel also conceded that there was no problem on the identity of the stalls. He said that contrary to what the trial court held, the stalls were numbered. He also stated that the trial court was apparently in misconception of facts when it said that there was no evidence to show that when the plaintiff initially moved into the stall presently occupied by the defendants, that the defendants were in occupation, as the trial court did not specify which stall the plaintiff initially moved into or was presently occupied by the defendants and which stall the defendants were not in occupation. He said that this finding of the lower court is perverse.

He also argued that the defendants are now in occupation of stall No. VI/15 and are therefore deemed in law to be in possession. It is also the submission of the appellants’ counsel that the learned trial judge failed to evaluate Exhibits E, E3 and E4 and that such non-evaluation occasioned miscarriage of justice. He further remarked that the trial court was in error when it concluded that the defendants in the suit No. 0/438/99 Chijioke Aseigbu v. John Olibie were only interested in procuring an ex parte injunction against the plaintiff vide Exhibit J but were not interested in prosecuting the substantive suit, hence they were non-suited on 23/10/2000 vide Exhibit K and that if they were sure of their facts they would have proceeded with their own suit. He queried that had the trial court weighed Exhibit J the counter affidavit, it would have held otherwise. He again argued that the trial court was in error when it held that the facts of the instant case differed from those in the case of Mil. Gov. of Lagos State vs. Chief Emeka Ojukwu (19886) 1 NWLR (Pt. 18) 638.

Finally on the issue of damages N400,000 on trespass awarded by the trial court to the respondents against the defendants, the appellants counsel submitted that the trial court was wrong to have held that the appellants were trespassers and have unlawfully occupied stall NO.VI/15 and they never occupied same adding that it was the plaintiff/respondent who wanted to change the position of his stall No. VI/15 which should be at the position of the defendants stall NO.VI/14B. He said the assessment of the general damages on trespass was wrong in law and therefore unwarranted. See UBN Plc vs. Ntuk (2004) All FWLR (234) para E-H. He urged us to overturn such award of damages and to finally allow their entire appeal.

In his response, the learned counsel for the respondent submitted that throughout the trial at the lower court the plaintiff/respondent consistently claimed that he is the rightful owner of stall No. VI/15 in Onitsha main market and had never claimed to be owner of stall No. VI/14B, which was claimed by the two defendants/appellants. He said this was in line with his pleadings and the evidence he led at the trial court to prove his entitlement or ownership vide Exhibits A, B and D and his testimony and that of PW2.

He also submitted that the testimonies of DWs 1, 2 and 3 simply ascertained that they were allocated stall No. VI/14B and tendered Exhibits F and G to prove their claim of stall No. VI/14B, also in line with their pleadings, that their stall was No. VI/14B and not VI/15. He argued that the trial judge had properly evaluated the evidence adduced by all the witnesses before he arrived at his conclusion that the appellant was the owner of stall No. VI/15 before awarding the declaratory relief sought by the plaintiff/respondent. See Agbi vs. Ogbeh (2005) 25 WRN 18 at 126/127; Leadway Assurance Co Ltd. VS. Zeco (Nig.) Ltd. (2000) 9 NWLR (Pt. 6 73) 4 80. The learned respondent’s counsel further argued that the core issue in contention is the ownership of stall No. VI/15 and not, Stall No. VI/14B. Therefore, if the defendants/appellants are claiming ownership of stall No. VI/14B it is their own business and what the trial judge found and concluded after proper evaluation of evidence led before him was that the plaintiff/respondent was the rightful owner of Stall NO.VI/15 which was duly established by him through his evidence – oral and documentary. He cited and relied on the case of Agba vs. B.H.I. Holdings Ltd. (1998) 1 NWLR (Pt. 535) 696.

The Respondent’s counsel further submitted that appellate court can only interfere with decision of a trial court if such decision is perverse or was reached on a wrong principle of law. See Mini Lodge Ltd vs. Ngei (2007) 24 WRN 32; Woluchem vs. Gudi (2004) 3 WRN 20; Agbabiaka v. Saibu (1998) 10 NWLR (Pt. 571) 534. He said the decision reached by the trial court was not perverse as it was based on both oral and documentary evidence. He also stressed that the trial judge had properly considered and evaluated the evidence adduced in the case at the trial and ascribed probative value to them before arriving at his decision. See Uzoechi vs. Onyenwe (1999) 1 SCN] 34. Mungwu vs. Ochekwu (2005) 9 WRN 125. He then urged this court not to interfere with the decision of the trial court as it was neither perverse nor based on a wrong principle of law.

Now coming to the issue of award of N400,000 general damages to the respondent for trespass committed by the appellants, the learned counsel for the respondent submitted that the plaintiff/respondent had proved that the defendants came to the store with thugs and scattered his merchandise and drove away everyone before locking up the store. He said the plaintiff/respondent also called uncontradicted evidence to show that the defendants/appellants were in actual possession of the said store. He said those pieces of evidence were clear proof of trespass committed on the stall of the respondent. He further remarked, that general damages need not be proved specifically with particulars, as is the case in claim for specific damages; See Aliko Engr. Ltd. vs. Akinsina (2005) 32 WRN 40. He argued that the trial judge was right in awarding damages to the tune of N400.000 in favour of the plaintiff/respondent against the defendants/appellants having concluded that the latter committed trespass into the former’s stall NO.VI/15 adding that where there is injury there ought to be a remedy. He said the appellants failed to establish the condition upon which an appellate court can interfere with award of damages as annunciated in the cases of Chagaurv v. Yakubu (2005) 35 ERN 63 at 88; NICON Hotels Ltd. v s. Nene Dental Clinics Ltd. (2005) 32 WRN 40; Ebe vs. Nnamani (1997) 7 NWLR (Pt. 573) 479; UAC vs. Irole (2001) 5 NWLR (Pt. 707) 583). He finally urged that this court should refuse to interfere with the award of general damages made by the lower court

In considering the issues raised in this appeal, I deem it apt to set out below some paragraphs of the pleadings which I consider relevant for consideration of the appeal before us. The plaintiff in his Statement of Claim averred thus, inter alia,

Paragraph:-

“(1) The plaintiff is the lawful allottee by the Onitsha North Local Government of Market stall number VI/15 at the Onitsha main market and also know (sic) as Mandella Square Main Market, Onitsha.

(2) The Stall was previously allocated to one Mr. Ezenagu G. Chukwuma but was re-allocated and transferred to the plaintiff by the Onitsha North Local Government through its letter reference number ONLG/C/242/Vol.IV of the 7th day of February 1995, which shall be founded upon at the trial.

(3) By the said allocation, the plaintiff became entitled to the right of occupancy of the said stall and immediately took possession of same.

(4) The plaintiff paid and changed ownership of the full stall No. VI/15 Onitsha Main Market with receipt number 084021 dated 13th day of February 1995. The plaintiff hereby pleads the said receipt.

(5) Soon after the stall was delivered to the Plaintiff the defendants brought in tugs (sic) and scattered the plaintiffs goods of merchandise and wrongfully taken possession of the stall and have thereby trespassed and are still trespassing thereon.

(8) The plaintiff complained to the Onitsha North Local Government owners of market stalls for wrongful possession of the stall by the defendants, the Onitsha North Market stall wrote to the plaintiff conferming (sic) his ownership in letter reference number ONLG/CAI/Vol.V/252 also attached market plan thereto indicating the position of the plaintiffs stall as VI/15 Mandella Square Main Market, Onitsha. The Plaintiff hereby plead which shall be founded (sic).”

On the other part and in reply to the above, the defendants jointly pleaded inter alia in their statement of defence as below:

Paragraph:-

“(1) The defendants state that there is no dispute between the plaintiff and the defendant over market No. VI/15 at the Onitsha Main Market Onitsha, Anambra State of Nigeria. The Defendants occupy Market Stall No VI/14B main market Onithsa.

(2) The plaintiff has deliberately misrepresented the issue in dispute. The plaintiff wants to force the defendants out of their stall No. VI/14B and occupy it, by arrogating to stall No. VI/15 the possession of stall No. V1/14B.

(3) The defendants deny paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10. The Defendants are the persons allocated stall No. VI/14B at the area known as Mandella Square, Main Market Onitsha by Onitsha North Local Government

(6)The Defendants took immediate and effective possession of the stall and were doing business there and paying the stallage fees to the Government without let or hindrance. The Defendants shall rely on the stallage receipts during trial.

(7) The Defendants were on 23rd day of May 1996, issued separate allocation papers for the same stall No. VI/14B. The Defendants will rely on the allocation papers during the trial. Market stall No. VI/14B is not the normal size of stalls. It is half of the other normal stalls, thus the stall in the Defendants possession is called one quarter stall.

The plaintiff was not the original allottee of Market Stall No. VI/15. One Ezenagu G. Chukwuma of No. 14, John Street, Onitsha was the original allottee of stall No. VI/15A and he occupied. By a joint application for transfer of allocation of stall No. VI/15 main market made on 7th February 1995 Onitsha North Local Government re-allocated the said stall No.VI/15 to John Olibie, the plaintiff. The Defendants shall rely on it during the trial. Notice is hereby given to the plaintiff to produce the joint allocation paper dated 7th February 1995.

(17) The Defendants moved into stall No. VI/14B like every other trader allocated stall (in Mandella line) after the construction of the stall. The numbering of stores was done by Onitsha North Local Government. The Local Government issued allocation papers bearing the stall numbers. The allocation paper given to the defendants has not been revoked. The number of the stall allocated the Defendants is VI/14B.

(18) The Defendants have been paying their stallge fees to the Onitsha North Local Government in respect of stall No. VI/15 and have not breached the condition of the stall.”

One thing that attracts my attention right away is that in his Statement of Claim, the plaintiff consistently claimed that he was the owner of STALL No. VI/15 and had never asserted any claim on stall No. VI/14B. The subject matter of the plaintiffs claim at the lower court is the ownership of stall NO.VI/15 and nothing more as per the declaratory relief he sought and had led evidence to prove that at the lower court. On their part, the two defendants principally claimed ownership of stall No. VI/14B, which was never claimed by the plaintiff. Even though the defendants in their Statement of Defence denied among others, paragraphs 1, 2, 3, 4 and 8 of the plaintiffs Statement of Claim (reproduced supra) on which he latter based his claim of stall No. VI/15 (see paragraph 3 of Statement of Defence), the Defendants in paragraph 9 of their Statement of Defence jointly admitted that the said stall NO.VI/15 was re-allocated to the plaintiff /respondent on 7/2/1995. Again, the Defendants who admitted in the first paragraph of their statement of Defence that there was no dispute between them and the plaintiff over market stall No. VI/15 and that they were the ones occupying stall No. VI/14B; they went ahead to aver in paragraph 18 that they have been paying stallage fees on stall No. VI/15 without any breach, even though, they never averred that that particular stall was ever allocated to them. I also observe that the defendants in paragraph 9 of their joint statement of defence introduced issue of stall No. VI/15A which never featured in the statement of claim and which also is in conflict with the other leg of the same paragraph 9 where they averred inter alia that what was transferred to the plaintiff was stall No. VI/15 and not VI/15A.

In the light of the pleadings by the parties herein the main contention of the parties is ‘Who is the lawful allocatee of the stall No. VI/15?. In other words, did the plaintiff prove his claims for declaratory relief with regard to stall No. VI/15 through credible evidence as would warrant the lower court oblige him such claim by granting the relief(s) sought by him?

To my mind, the main issue around which all submissions by the learned counsel revolved is on proof and evaluation by the trial court. The law is well established now that a plaintiff has the onus to satisfy the court that he is entitled, on the evidence produced by him, to a declaration of title.

He must therefore rely on the strength of his case and not on the weakness of the defendant’s case. Once the plaintiff fails to discharge such onus the weakness of the defendant’s case will not be of any assistance to him and the proper judgment will certainly be for the defendant. See Ayeddoun T. Julies vs. Raimi Ajani (1980) 5-7 SC 96; Akinola & Ors v. Oluwo & 2 Ors. (1962) WNLR 135. Although the rules of court and evidence relieves a party of the need to prove what has been admitted by the adverse party but there is a rider to that in that where a court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled, to satisfy it by evidence not by mere admission in the pleadings of the defendant that he is entitled. This is necessary from the backdrop of the fact that the court has discretion to grant or refuse a declaration. The present approach by court nowadays is that courts are hesitant in granting declaration of rights either on admission or in default of defence without hearing evidence. See Kodilonve vs. Mbanefo Odu 2 WAC A 337. I took pains to discuss the present position of the law and lay emphasis on the issue of proof in view of my earlier observation that the defendants/appellants herein have admitted in their joint pleadings that the plaintiff respondent was the allocattee of stall No. VI/15.

Now the next issue is, did the plaintiff/respondent prove by evidence his claim for the ownership of the stall in question as would warrant his being granted the declaration of right of same by the lower court?

The Respondent as plaintiff at the lower court testified as PW 1. In his ipse dixit he stated inter alia:

“I am claiming a declaration that the position of VI/15 Mandella Square, Onitsah Main Market that I am the lawful owner.”

Throughout his testimony and even during rigorous cross-examination he remained adamant and consistent in his testimony, that he is claiming Stall No. VI/15 and NOT stall No. VI/14B. Needless to say, that there is no rule of common law that is against admissibility of the ipse dixit of a party to a case. With regard to the probative value of the evidence, it was in this instant case uncontradicted and uncontroverted; hence it goes in absolutely unchallenged. The plaintiff/respondent also called PW2, the Market Secretary Onisha Main Market who testified that stall No. VI/15 was different from Stall No. VI/14B being claimed by the two defendants and to the effect that it was the plaintiff/respondent who was allocated and was the lawful owner of stall No. VI/15. He claimed to be officer in charge of all markets under the supervision and jurisdiction of Onitsha North Local Government Council. When being cross-examined, he emphasized on the sketch map attached thereto which clearly showed the positions of stalls VI/15 and VI/14B the former shown in red verge on the sketch map. He also insisted under cross-examination that whoever the Local Government issues allocation paper was the true owner of the market stall and that every allocation paper bears definite number, adding that stall No. VI/15 was actually allocated to the plaintiff/respondent. This witness also testified during cross-examination that he was the most qualified person to speak on market stalls, allocation and ownership with Onitsha Local Government and stated as below at page 56 of the Record:

“Whoever the Local Government issues allocation paper is the owner of the market stall. Every allocation paper bears a definite number. I am the admin officer in charge of the market.”

On their own part, the 1st and 2nd defendants/appellants testified as DWs 1 and 2 respectively. They also called one Chidi Polycarp Ofobike to testify as DW3. Their testimonies largely centred on the fact that they were jointly allocated stall No. VI/14B. For instance under cross-examination:

DW1 said thus:

“My allocation paper does not bear VI/15. I am not occupying stall No. VI/15. It is true that Onitsha North Local government regulates the market. The Local Government has a master plan for the market. And when there is dispute as regards ownership of a shed the Local Government will be consulted and they will use their master plan to resolve the dispute. The Local Government has the final say as regards any dispute of a stall.”

The plaintiff/respondent also tendered Exhibits A, B and D. Exhibit A is the letter of allocation of stall VI/15 to him by the market authority dated 7/2/1995. Exhibit B is receipt for reallocation of Stall No. VI/15 issued to plaintiff while Exhibit D is the letter to which sketch plan of the market square was attached which clearly also showed the position of stalls Nos. VI/15 and VI/14B among others.

The defendants on the other hand tendered among others, Exhibits F & G which are the documents issued to them by Onitsha Local North Government Council allocating to them stall No. VI/14B. They also averred emphatically that there was no dispute over stall VI/14 and VI/14B. They also stated that the plaintiff failed to file a reply to deny their averments they made in paragraph IS of their statement of defence to the effect that he started his claim for VI/14B by contending that the numbering of the stall was not systematic.

With due respect to the learned counsel for the appellants, I do not think there is any need for him to file a reply to their averment in that regard since he never claimed ownership of stall No. VI/14B and that that was not the subject matter of his claim at the trial court. The defendants’ counsel also referred to their Exhibit E, a letter dated 13/7/98 titled “Investigative Activities” wherein it said inter alia that the occupier of No. VI/15 has the allocation paper for No. VI/14B in the new plan attached and submitted that the plaintiff’s pleading differ from what emerged during trial as the true cause of action. I do not agree with this submission. This is because the plaintiff averred in paragraph 5 as follows:-

“Soon after the stall was delivered to the plaintiff, the defendants brought in tugs (sic) and scattered the plaintiff’s goods of merchandise and completely taken possession of the stall and have thereby trespassed, and are still trespassing thereon.

This averment can be said to be in line with the Exhibit E3 (which was dated 13/7/98) which says that the occupier of No. VI/15 (i.e. the defendants/appellants) had the allocation paper for No. VI/14B (which is the stall the defendants are claiming ownership of. It goes to show further that they are still in occupation of stall No. VI/15 and are holding allocation paper of their stall No. VI/4B. Here I will add, that the plaintiff is consistent in his case or claim throughout the trial at the lower court. The appellants’ counsel delved very much on the identity or renumbering or change of position of the stall. I feel all these are irrelevant since the defendants/appellants themselves admitted in their pleading that there is no dispute between the two stalls, i.e. No. VI/15 and No. VI/14B, which are differently claimed by each of the parties. All that the plaintiff claimed is stall No. VI/15 and not VI/14B. Similarly, the defendants/appellants merely pleaded and led evidence to show that they were allocated stall No. VI/14B and did not adduce any shred of evidence to show that they were owners of, or allocated stall No. VI/15 as opposed to the evidence led by the plaintiff/respondent to establish his claim on stall VI/15. In the case of Vincent Bello vs. Magnus Iweka (Supra), the Supreme Court per Obaseki, JSC had this to say at page 102:-

“It is true as was contended before us by the appellant’s counsel that the rules of court and evidence relieved a party of the need to prove what is admitted. But where the court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence that he is so entitled.”

From the synopsis of evidence adduced by the parties as highlighted above, I am emboldened to say that the learned trial judge was right in his findings that stall No. VI/15 claimed by the plaintiff/respondent was duly and lawfully allocated to him and was equally right in granting the order restraining the appellants from further trespassing and occupying the said stall. In the case of Agbe vs. BHI Holdings Ltd. (supra) this court had this to say per Ubaezuonu J. CA. at page 709:

“Consequently, if a plaintiff claims for trespass on Blackacre but defendant instead of joining issues with him on Blackacre chooses to say that he went into Greenacre, that is his business. The Court is entitled to make an order in respect of the subject matter of the claim, that is Blackacre. The defendant cannot be heard to complain because the order on Blackacre will not prejudice his activities in Greenacre. If however, what the defendant describes as Greenacre is in fact the Blackacre which the plaintiff claims, then it is a question of difference in description and not difference in identity.”

In the instant case, as I posited above, the plaintiff claims stall No. VI/15 and had never claimed stall No. VI/14B. I am therefore of the firm view that the learned trial judge had satisfied himself that the plaintiff had adduced preponderant and credible evidence to establish that he is the lawful allottee of Stall No. VI/15 and the learned trial judge had rightly granted the relief sought.

I will now pause here a little to consider the issue of evaluation of the evidence by the learned trial judge. It is the grouse of the learned counsel for the appellants that the learned trial judge did not evaluate the evidence they adduced in Exhibits E3 and E4. Exhibit E3 is the letter titled “Investigative Activities” dated 13/7/97 while Exhibit E4 is the Report of Onitsha North Local Government dated 23/3/1999. Let me state here that the law is settled, that in a civil case, before a trial judge comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the evidence and testimonies adduced by both parties on an imaginary scale; the plaintiffs on one side of the scale and that of the defendant on the other side and weigh them together. After weighing the two evidence, he should find out which of them overweighs the other by the quality or the probative value of the testimony of the witnesses and the documents: See Aromire & Ors vs. Awoyemi (1972) 1 All NLR 101; R. R. Mogaji & Ors. vs. Madam Ratisalu Odofin & Anor. (1978) 4 S.C. 91 at 94; Vincent I. Bello vs. Magnus Eweka (Supra).

In the instant case, the issues joined are simply whether the plaintiff at the court below now respondent, was the lawful owner of stall No. VI/15 and whether the defendants have trespassed into the said stall as would enable the court to award the damage claimed by the plaintiff simpliciter. If that had been the case, I think those issues have been resolved by the appellants concession that there was no dispute with regard to the identity of stalls Nos. VI/15 and VI/14B and that the fanner (Stall No.VI/15) was transferred to Ezenagu G. Chukwuma and also was later allocated to the respondent by the Onitsha North Local Government. As rightly found by the trial court the plaintiff adduced credible evidence to justify his claim for that stall. The trial judge after reviewing the evidence adduced by the parties had this to say at page 77/78 of the record:

“It is agreed by the parties in their pleadings that the plaintiff is the allottee of stall No. VI/15 who inherited same from one Ezenagu G. Chukwuma. The defendants in paragraph 10 of their statement of defence averred that throughout the time Ezenagu G. Chukwuma was there, they had no dispute as regards the position, of stalls No. VI/15 and VI/14B .

The defendants in their evidence admitted that it was Onitsha North Local Government that has the sole authority to say who owns each stall in their area of jurisdiction. The Onitsha North Local Government wrote Exhibit D, which has (sic) attached to the sketch map showing the position of stall VI/15 at Mandella Square.

The defendants are actual (sic) in possession of stall No. V1/15. The 1st and 2nd defendants admitted in their evidence that in case of any dispute respecting any stall that resort will he had to the Onitsha North Local Government being the sale authority as regards the control and administration of the market.”

In apparent reference to Exhibits E3 and E4, the trial court earlier in its judgment stated at page 76 of the record as below:

“Both the defence witness number one and two (sic) i.e. 2nd and 1st defendants admitted that it was the duty of Onitsha North Local Government to issue numbers to the stalls ” If that so why should the traders dictate for the Local Government when and when not to reassign stalls ….. ” There is a lot of difference between instate (sic) case and the authorities of Military Governor of Lagos State vs. Chief Emeka Ojukwu (1980) 1 NWLR (Pt. 62 at page 638″

From the above excerpts from the judgment of the lower court I am of the firm view that the trial court had duly evaluated the evidence adduced by the parties which were relevant to the subject matter of the claims made by the plaintiff which solely relates to stall No .VI/15 and not any other Stall or issues not raised or canvassed by the plaintiff in his pleadings. Instead of the defendants to join issues with him as to the ownership of the said stall No. VI/15, they merely laid claims to stall No. VI/14B which was never claimed by the plaintiff and which had no similarity whatsoever with Stall No. VI/15 as rightly admitted by the defendants also in their pleadings. Exhibits E3 and E4 therefore had no direct bearing with the stall in dispute i.e. No. VI/15. The learned trial judge can therefore not be accused of refusing to delve much on the said two exhibits which in my view have little or no relevance to the issues before him which is on solely stall No. V1/15, but were merely on re-numbering of stalls which even the issuers of the said exhibits testified to the effect that there was no disputes on the identity of stalls VI/15 and VI/14B and produced a plan which clearly showed or demarcated the positions of the two stalls. I therefore hold that the learned trial judge had received and properly evaluated the evidence adduced before him and had rightly relied on and accepted the evidence adduced by the plaintiff/respondent which is credible, uncontroverted and uncontradicted and had rightly rejected or disbelieved the evidence adduced by the two defendants which was characterized with some contradictions and irrelevancies. Similarly the defendants’ counter claim was rightly rejected for their failure to lead evidence to prove same.

I will now come to the award of N400,000.00 damages by the trial court out of the N2,000,000.00 damages for trespass claimed by the plaintiff/respondent in his Statement of Claim. By paragraph 5 of the statement of claim reproduced supra the plaintiff/respondent averred that the defendants brought thugs to his stall and scattered his goods of merchandise and forcibly took possession of same and trespassed thereon through self help and continued to remain there and he even reported to the police for malicious damages of his goods. He also testified in court and stated: “on 26/5/99 the defendants came to the store with thugs and scattered his merchandise and drove everyone away and locked the store with padlock key”. The trial court after evaluating the evidence found that the defendants were in actual possession of stall No. VI/15 and ruled that it was satisfied that the plaintiff had proved his case on balance of preponderance of evidence and finally found in favour of the plaintiff and awarded the sum as general damages. Generally speaking, damages is sort of pecuniary compensation or indemnity recoverable in the courts by any person who suffered a loss, detriment or injury, be it to his person, property or right, through the unlawful or wrongful act or omission or negligence of another.

In fact it is monetary compensation sought or awarded for breach of contract or tortuous acts. Shell Petroleum Dev, Co. vs. Tiebo (1996) 4 NWLR (Pt.448) 657; Paul Ebe vs. Albert Nnamani & Anor (1997) 7 NWLR (Pt.513) 479.

Trial Courts have unfettered discretion to award general damages being the first instant courts that had the opportunity and benefit of hearing the testimony of witnesses and watched their behaviour and had duly examined them. An appeal court will normally be very hesitant to interfere with award of damages by trial courts except on the following circumstances, namely:-

(a) Where the trial court has acted under a mistake of law.

(b) When it has acted in disregard of principles or

(c) Where it had acted under a misapprehension of facts; or

(d) Where it has taken into account irrelevant matters or failed to take account of relevant matters; or

(e) Where injustice would result if the appeal court does not interfere; or

(I) Where the amount awarded is either ridiculously low or ridiculously high that it must have been wholly erroneous estimate of the damages.

Unless these circumstances are amply shown to the court by a complainant to have been breached, an appeal court will not be entitled to interfere with an award of damages by a trial court. See Union Bank of (Nig) Ltd. vs. Odusote Books Stores Ltd., (1995) 9 NWLR (Pt.421) 558; Shell Petroleum Dev. Co. vs. Tiebo (supra); See also Chaguary v. Yakubu (2005) 33 WRN 63 at 88; NICON Hotel Ltd. vs. Nene Deutal Clinic Ltd (supra); Ebe vs. Nnamani (supra); UAC vs. Irole (2001) 5 NWLR (Pt.707) 583. In the surrounding circumstance of this instant case, I am unable to see any cogent reason why I should interfere with the award of damages of N400,000.00 made by the lower court, as the defendants/appellants woefully failed to show that any of the afore-listed conditions was neither not followed nor was disregarded by the lower court. I therefore decline to interfere with the award of damages made by the trial court.

The learned counsel for the appellants has urged that we should interfere with the entire finding of the lower court. As I remarked earlier in this judgment, the learned trial judge had based his decision on the evidence adduced before him upon the pleadings by parties and that he had duly evaluated such evidence before arriving at his decision. As an appeal court, it will not be our business to interfere with the decision of the lower court once such decision was based on evidence supporting the pleadings. It is trite law that appeal courts should be loathe to disturb or interfere with the findings of fact made by a trial court except in a situation where there is obvious error in the appraisal of the evidence and ascription of probative value thereto by such trial court. See Afungwu vs. Ochekwu (2005) 9 WRN 125; Uzoechi vs. Onyenwe (1999) 1 SCNJ 4; Ceda Press Nig. Ltd vs. Mand G Ass Co. (2005) 32 WRN 73 at 88; Agbi vs. Ogbe (2005) 25 WRN 38. From the principles enunciated in the above mentioned decided authorities of this court and of the apex court, I do not think the surrounding circumstances will entitle or permit me to interfere with the decision of the learned trial judge as being called upon so to do by the learned counsel for the appellants who indeed failed to justifiably show why the lower court’s decision should be disturbed. I am strongly of the firm view, that the plaintiff/respondent had proved his case on preponderance of evidence at the lower court and is entitled to judgment given in his favour.

On the whole, I find no merit in this appeal. It fails and it is accordingly dismissed by me. The decision of the lower court in suit No. 0/6/2004 delivered on 20th July 2006 is hereby affirmed. Costs follow events.

The respondent is entitled to costs assessed at N20,000.00 to be paid to him by the two appellants.

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Other Citations: (2008)LCN/2789(CA)