Clement Nwankwo V. A. A. Oforkansi & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

The claim of the 1st Respondent who was the plaintiff at the Anambra State High Court of Justice, holden at Onitsha was with respect to his ownership of the Stall No. V1/14, Mandela Square at the Main Market Onisha. The appellant also laid claim to the same Stall No. V1/14 aforesaid.

Hence, the dispute got the attention of the Onitsha North Local Government – the owner of the radical title over the Onitsha Main Market. In his claim, as represented in the Amended Statement of Claim, the 1st Respondent prayed as follows:-

“1. Declaration that the Plaintiff is the rightful allottee of Stall No. V1/14 Mandela Square Main Market Onitsha as shown on the plan containing the Original numbering as confirmed on 30/8/95, 12/10/95 and 18 /10/95 by the 2nd Defendant.

2. A Declaration that Plan as confirmed by the local Government letters of 30/8/95 and 18/10/95 is the only valid Plan upon which the Stall was allotted to the Plaintiff and the 1st Defendant.
3. A Declaration that the Plan as made on 4/12/95 by the 2nd Defendant is ultra vires the 2nd Defendant, null and void

and of no legal effect, in so far as the Plan purports to give Stall No. V1/14A to the 1st Defendant, as Stall No. V1/9A.

4. An Injunction perpetually restraining the 2nd Defendant, its agent and servant, privies etc. from tampering with or doing any other thing contrary to the Plan and allocation as made to the plaintiff on 31/10/94 and confirmed on 30/8/95 and 18/10/95 and 12/10/95.
5. An Injunction perpetually restraining the 1st Defendant, his agent, privies, servants from trespassing or further entering into or occupying the Plaintiffs Stall No. V1/14A Mandela Square Main Market, Onitsha as shown in the Plan confirmed on 30/8/95, 12/10/95 and 18/10/95 by the 2nd Defendant.
6. N100, 000.00 aggravated, exemplary and general damages against the 1st Defendant.
7. N5000.00 special damages for loss of earnings by the Plaintiff for each day of the trespass by the 1st Defendant until same is abated by the 1st Defendant.”

The claim was denied by the appellant herein and also by the Onitsha North Local Government – the 2nd defendant at the trial Court. They each filed their defences to the action and joined issues with the 1st Respondent.

The suit proceeded to hearing, with each side calling witnesses who gave evidence for them. Some documentary exhibits were tendered by both parties and admitted into evidence by the Court. At the end of leading evidence viva voce by the witnesses, counsel to the parties filed and exchanged written addresses. The learned trial judge, in his judgment largely found in favour of the 1st Respondent and dismissed the appellant’s counter – claim. This appeal is sequel to that decision of the trial Court delivered on 2nd October, 2008.

The appellant’s notice of appeal, contained in the Additional/Supplementary Record of Appeal, was dated and filed on 22nd December, 2008. The appeal is anchored on fourteen (14) grounds of appeal. The appellant in pursuit of the prosecution of the appeal, filed an Amended Appellant’s brief of argument, settled by Dr. Onyechi Ikpeazu, SAN, OON, on 7th February 2014.

?In it, seven (07) issues were nominated for the determination of the appeal thus:

“1. Whether the learned trial judge was justified in her conclusion that the identity of A. A. Ofokansi in whose name the suit was instituted was established. Grounds XI and

XII

2. Whether the 2nd Respondent was precluded from conducting an inquiry and resolving the dispute as to the proper allottee and location of the stall in dispute, having regard to the documents previously executed by its officers.

GROUND I

3. Whether the findings of the learned trial judge that the Appellant was adjudged a squatter in Stall No. V1/14A and was the one who wiped out the number and wrote V1/9A and boasted that Mr. Oradiwe would assist him retain the Stall was justified by evidence.

GROUND VI

4. Whether the learned trial judge was wrong in accepting as reliable the evidence of PW2 in holding that Exhibit L was the document which duly established the proper Allottee of the location in dispute.

GROUNDS VIII AND IX