Augustine Asibe & Ors V. Owerri Municipal Local Government (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOJEED A. OWOADE, J.C.A (Delivering the Leading Judgment)

This is an appeal against the decision of P.O. Nnadi, J. sitting at High Court, Owerri in the Owerri Judicial Division of the High Court of Imo State delivered on 3rd day of March, 2007.

The Appellants as Plaintiffs took out a Writ of Summons against the Respondent on 6/11/2003. This was followed by a statement of claim dated 12/3/2003 but filed on 16/12/2003. Paragraph 23 of the Appellants statement of claim prayed for the following reliefs.

(a) Declaration that the forceful acquisition of the plaintiff’s sheds/market stalls in the Owerri Main Market, and ejection of the plaintiffs therefrom by the Defendant is unconstitutional, illegal wrongful and void.

(b) N110, 000.0000.00 General Damages for the said unlawful ejection and continuing loss of revenue.

(c) Mandatory injunction directing the Defendant to restore the displaced Plaintiffs to their said sheds in the Owerri Main Market OR ALTERNATIVELY allocate alternative equivalent number of sheds to the Plaintiffs in Owerri Main Market or any other functional market in Owerri Metropolis/Municipality.

(d) Injunction restraining the Defendant by its agents, privies or controllers, or workmen, by whatever name called from allocating or assigning the sheds or spaced seized from the Plaintiffs to any other persons, group or authority, or constructing any structures on same without first allocating alternative equivalent shed to the plaintiffs.

The Respondent as Defendant in the court below also filed a Statement of Defence on 14/1/2004.

In the court of the trial, the Appellants amended their statement of claim to put it in line with the evidence of PW2.

The Appellants case was that in 1996, they entered into a tenancy agreement with the Respondent by which the Respondent allocated to each of their 110 members of the Butchers Association a portion of the open spaces at the Owerri Main Market called Free Zone to carry on the business of meat selling. The Association collectively paid the sum of N840, 000.00 to the Respondent and individually paid an annual rent of N240.00 per space which rent was later increased to N750.00 per annum.

Each of the 110 members of the Butchers Association was given an allocation paper by the Respondent. Thereafter, the Appellants spent the sum of N300, 000.00 to cover the bare ground of the open spaces with concrete cement floor.

The Appellants carried on their trade until the 3rd day of September 2003 when members of the State Task Force on Street Trading including armed Mobile Policemen without any prior warning or notice came to the Owerri Main Market and destroyed the sheds and structures built by the Appellants and carted away some of the wares of the Appellants.

The Appellants quickly approached the Chairman of the Respondent who directed them to relocate to the Owerri Relief Market. The Appellants went to the Owerri Relief Market and the prior allottees of the sheds at the Relief Market resisted the Appellants from taking occupation of the portion of the Relief Market shown to them. Prior to the destruction of their sheds, the Appellants had paid their rent for the year ending 31st December 2003. When the policemen of the State Task Force did not allow the Appellants carry on their trade and the Respondent could not give them any other place to carry on their trade, they brought the court action.

The Respondent admitted giving llocation papers to members of the Association. The allottees of the open spaces in the Free Zone of the Main Market were not allowed to erect any structures on the open spaces. The task force set up by Imo State Government to check street trading and decongest access roads and thoroughfare in the Owerri Main Market destroyed the structures of the allottees on 3rd of September 2003. The Respondent did not set up the Imo State Task Force. Before the lower court, the Appellants called two witnesses, the Respondent also called two witnesses.