Mrs Bibian Ngozi Onyia V. MR. Obiora Mbiko & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

On the 28-3-2008, the appellant herein, as plaintiff commenced suit No. A/82/08 against the 1st respondent by filing a writ of summons, accompanied by a statement of claim, statement on oath of the appellant and a list of documents and the documents to be relied on by the appellant.

The 1st respondent then filed his statement of defence, accompanied by his deposition on oath and list of witness. The appellant filed a reply to the statement of defence, list of witnesses, statements on oath of herself and her witness, Engr. Frank Muobike and another list of exhibits and further documents to be relied on.

On 4-4-2008, the appellant by a motion on notice, applied for an order that the 2nd respondent be joined as defendant in the suit. This application was granted and the 2nd respondent was joined. The statement of claim was accordingly amended to reflect the joinder. The 2nd defendant on 4-5-2009 filed his statement of defence accompanied by a list of witnesses and his written deposition.

At the trial, the appellant and Engr. Frank Muobike testified for the appellant as PW1 PW2. The 1st defendant testified as DW1. The 2nd defendant did not testify as a witness. After the close of evidence and following the adoption of the written addresses of Counsel to both sides, the trial court on the 26-7-2010 rendered judgment, holding that the appellant failed to prove her case, dismissing same and awarding cost of N20,000.00 in favour of the respondents.

Dissatisfied with this judgment, the appellant on 27-7-2010 commenced this appeal No. CA/E/262/10 by filing a notice of appeal containing one ground of appeal.

Both sides to this appeal have filed, exchanged and adopted their briefs of argument. The briefs of argument include the appellant’s brief of argument, respondent’s brief of argument and appellant’s reply brief.

The appellant’s brief of argument raised one issue for determination as follows- “whether the plaintiff proved her claims on the preponderance of evidence adduced at the trial of this case.” The respondents in their brief adopted this issue for determination. Learned Counsel for the appellant has argued that the appellant proved her claim on a preponderance of evidence in that the evidence shows that she duly acquired and was allocated the lockup stalls by Awka South Local Government and is the owner of the right to occupy the said stalls.

Learned Counsel pointed out that the 2nd respondent did not attend court through out the trial proceedings in this case and did not testify in support of his statement of defence and written statement on oath and urged this court to discountenance the said statement of defence and written statement on oath.

Learned Counsel for the appellant also pointed out that the 1st respondent who testified in court did not produce the papers from Awka South Local Government allocating the 2nd respondent the stalls occupied by them, any evidence of payment of stallage fees to Awka South Local Government for the stalls they occupy and that the 1st respondent was unable to state the names of the persons he leased the stalls to.

Learned Counsel then submitted that the failure of the respondents to produce evidence of the allocation of the said stalls to the 2nd respondent, evidence of payment of stallage fees for the stalls and evidence of any contract enabling the 2nd respondent to construct the said stalls occupied by him, means that such documents do not exist or that if they are produced they will be unfavourable to the case of the respondents and also means that the stalls occupied by them are not different from stalls No. PJO/1 and PJO/2, the subject of the suit at the trial court.

Learned Counsel further submitted that a proper evaluation of the evidence shows that the appellant is the owner and occupier of stalls Nos PJO/1 and PJO/2, that the four stalls the respondents occupied are mere portions of stalls Nos PJO/1 and PJO/2 occasioned by the unlawful acts of the respondents in entering the stalls without the consent of the appellant.

According to Learned Counsel, this is the reason why the respondents could not produce the allocation papers issued to the 2nd respondents by Awka South Local Government in respect of the stalls occupied by him, and that it is also the reason he could not remember the identification numbers of the four stalls he leased to tenants whom he issued receipts for the rents they paid in respect thereof.

Another argument of Learned Counsel for the appellant is that the trial court was wrong to have held that the failure of the appellant to call Awka South Local Government as a witness was fatal to his case. According to Learned counsel, the appellant had no more need to call Awka south Local Government as a witness because exhibits C, D, F1, F2, G1 and G2 are the acts and deeds of the said Awka South Local Government in respect of stalls Nos PJO/1 and PJO/2 and the respondents did not in any way impugn or challenge the genuineness and or authenticity of these exhibits.