Chief Bright Onyemeh & Anor V. Mrs. Grace Iwueze & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Imo State High Court, sitting at Owerri and presided over by C. I. Ohakwe; J in Suit No. HOW/332/2005, delivered on the 14th day of May, 2012.

At the trial court, the Respondents who were the Plaintiffs had by an Amended Statement of claim dated and filed the 28/3/2010, sought for the following reliefs against the Appellants who were Defendants:

1. A declaration that the 1st Plaintiff is the lawful allottee of lock-up store/shop No. OW/M/AT/LK/25 Owerri Main Market, Owerri Municipal Council of Imo State.
2. An order of court rendering null and void the fraudulently obtained allocation paper dated 3/12/94 bearing OW/M/AT/LK/25A which is not in existence anywhere.
3. An order of court setting aside or declaring notice to quit with reference No. OW/RP/2874/2005 dated 18th day of July, 2005 and filed in the Magistrate Court registry, Owerri on 20/7/2005 and served on the Plaintiffs and their son on the ground that the said notices are invalid and incompetent.
4. Five Million Naira (N5,000,000:00) only being general damages suffered by the Plaintiffs for the defendant’s wrongful interference with the right of the plaintiffs over the said lock-up store.
5. Injunction restraining the defendants, their agents, servants or privies from interfering with the rights of the Plaintiffs over the said lock-up shop/store No. OW/M/AT/LK/25 along Express Line A, Owerri Main

Market, Owerri.

The Plaintiffs/Respondents case is that the 1st Appellant had acquired an interest by way of purchase, over store or lock-up shop No. OW/M/AT/LK/25, from one Mr. Ekpemarachi who testified for the Plaintiffs/Respondents as P.W.2. That the said Mr. Ekpemarachi had been allotted the shop by the Owerri Local Government vide letter with Reference No. OWLG/90/S.398 dated the 16/2/1989, when he was a Counsellor in the said Local Government. That after the purchase, the 1st Respondent tried to pay the necessary fees to the Local Government, but they refused to accept same because the building was proposed for demolition in order to erect a Fire Service Station.

That it was the 1st Appellant who acted as a middleman in the sale transaction between the Respondents and Mr. Ekpemarachi, for which, he was paid a commission of Five Thousand Naira (N5,000:00). That it was in 2005 when the 1st Respondent went to pay the stallage fee that she discovered that the 1st Appellant had already paid.

According to the Respondents when they noticed that the Appellants were laying claim to the store, they wrote a complaint to the Owerri Local Government, and the PW3 who was at the time the Acting Director of Administration and General Services (DAGS) was mandated to look into the matter. That the PW3 invited both parties, and upon his findings, confirmed ownership of the store on the Respondents.

The Appellants on the other hand contended that it was the 1st Appellant who was contracted by the Owerri Local Government to erect the building, consisting of ten (10) stores, one of which was the store in dispute. That upon completion of the building, the Local Government allotted all the stores to him as compensation for his work. That the 1st Appellant then tenanted the store in dispute to the 1st Respondent. The Appellants therefore contended that the 1st Respondent was a tenant to the Appellants. At the trial, the Respondents called three witnesses who testified as the P.W.1, P.W.2 and P.W.3 respectively.

The 1st Appellant testified as the D.W.1 and called one other witness who testified as the D.W.2. At the close of evidence, counsel filed and adopted their Written Addresses. In a considered judgment delivered on the 14/5/2012, the learned trial judge of the court below, entered judgment for the plaintiffs/Respondents and granted all the reliefs sought by them. The Defendants/Appellants are aggrieved by the decision and have now filed this appeal.

The Appellants’ Notice of Appeal which is at pages 142-150 of the record of appeal was dated the 07/6/2012 and filed the 11/6/2012. It consists of ten (10) Grounds of Appeal. As required by the Rules of this court the parties filed and exchanged Briefs of Arguments.

The Appellants’ Brief of Arguments settled by Chief Eze Duruiheoma, SAN was dated the 23/11/2012 and filed 27/11/2012. Therein, seven (7) questions were put before this court for determination as follows: 1. Did the Learned Trial Judge fully and effectively evaluate all the material evidence led on behalf of the Defendants which evidence shows that the shed in question belongs to the 1st Defendant? (Ground 1 & 3).

2. Did the Learned Trial court place higher onus of proof on the Defendants than they ought to bear (Ground 2).
3. Did the Learned Trial Judge act on hearsay evidence? (Ground 4)
4. Was the learned Trial Judge correct to hold as follows:

“The action of the D.W.1 in the circumstances is fraudulent” and that the transaction whereby the 1st Defendant used names of other people including the 2nd Defendant’s name to obtain allocation of 10 lock-up stores was fraudulent” (Ground 5)

5. Was the sum of N500,000:00 awarded as general damages deserved? (Ground 6).
6. Did the Learned Trial Judge not misdirect himself when he held that Exhibits “P” and “Q” do not support the deposition of the D.W.1? (Ground 7).
7. In the entire circumstances of this case, did the Plaintiffs prove their case on a balance of probabilities? (Grounds 8, 9 and 10).

The Respondents’ Brief of Arguments dated 18/12/2012 and filed the 19/12/2012 was settled by U.C. Osuji, Esq. Therein the Respondents adopted all the issues formulated for determination by the Appellants.

I have carefully considered the issues settled for determination in this appeal. A sober reflection would reveal that issues 1, 2, 3, 4, 6 and 7 can be conveniently taken together, while issue 5 stand on its own. In that respect, I propose to consider issues 1, 2, 3, 4, 6, and 7 together, while issue 5 will be considered alone. I now begin with issue 1, 2, 3, 4, 6 and 7.