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.