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: