Mrs. Ngozi Mbakwe V. Ifeanyi Boniface Esione (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

On 29/3/2004, the respondent herein, as plaintiff, filed a claim and caused a writ of summons to issue same day commencing Suit No. O/62/2004 against the appellant herein, as defendant in the High Court of Anambra State sitting at Onitsha. The plaintiff claimed for the following reliefs:

“1. Declaration that the plaintiff is the person entitled to the use and occupation of Market Stall No. OSLG/MH/100 ? 1st floor (double stall) situate at Bridge Head Market, Onitsha.

2. Injunction restraining the defendant either by himself or by his privies or agents or servants from disturbing the plaintiff’s right to possess and use the said market stall.
3. N30,000,00 being the value of the iron door removed by the defendant.
4. N1,000,000.00 damages against the defendant for disturbing the plaintiff’s right to occupy and use the said market stall.”

The pleadings upon which the case was tried and determined were as follows – Amended statement of claim, amended statement of defence.

The plaintiff testified as PW1 and also adduced evidence through PW2 in support of his

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claim.

The defendant did not testify as a witness, but adduced evidence through DW1, her husband to rebut the case made out by the plaintiff’s evidence.

Following the filing, exchange and adoption of final written addresses by both sides, the trial Court on 14-7-2010 rendered judgment holding that the plaintiff’s claim succeeded in part and granted all the reliefs claimed by the plaintiff except the relief of one million naira damages for disturbance of plaintiff’s right to occupy and use the market stall.

Dissatisfied with this judgment, the defendant on 26/7/2010 commenced this appeal No. CA/E/233/2010 by filing a notice of appeal containing ten grounds for the appeal.

Both sides have filed, exchanged and adopted the following briefs – appellant’s brief, respondent’s brief and appellant’s reply brief.

The appellant’s brief raised the following issues for determination-

“1. Whether the trial judge was right to have suo motu and unsolicitedly amended the pleadings of the respondent in order to fill the yawning gaps in the case of the respondent (Ground 1).

2. Whether the Court below was right to hold that stall

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