CHIEF BRIGHT ONYEMEH & ANOR v. MRS. GRACE IWUEZE & ANOR (2013)

CHIEF BRIGHT ONYEMEH & ANOR v. MRS. GRACE IWUEZE & ANOR

(2013)LCN/6381(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of July, 2013

CA/OW/314/2012

RATIO

WHETHER AN APPELLATE COURT MAY RE-ASSESS THE AMOUNT OF GENERAL DAMAGES AWARDED BY THE TRIAL JUDGE

WHETHER THE PLAINTIFF MUST PROVE INJURY INCURRED TO SUCCEED IN A CLAIM FOR GENERAL DAMAGES

WORDS AND PHRASES: HEARSAY EVIDENCE

However, I venture to say that, hearsay evidence has been statutorily defined by Section 37 of the Evidence Act, 2011, while Section 38 of the same Act, makes hearsay evidence inadmissible, save as provided in part IV or by or under any other provision of the Evidence Act or other Act. Thus, Section 37 of the Evidence Act, 2011 stipulates that:
“37. Hearsay means a statement –
(a) oral or written made otherwise than by a witness in a proceeding; or
(b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act which is tendered in evidence for the purpose of proving the truth of the matter stated in it.”
It therefore means that any statement, whether oral or written which is made by a person other than a witness in a proceeding or is contained in a document, book or other record which proof is not admissible by the provisions of the Evidence Act or other Law, will be hearsay, if the purpose is to establish or prove the truth of the matter stated therein. This provision in my view, is a statutory entrenchment of the hearsay rule as propounded by our courts in plethora of cases, starting from the case of SUBRAMANIAM vs. PUBLIC PROSECUTOR (1956) 1 W.L.R. p.965 at 969, where hearsay evidence was described as follows:
“Evidence of a statement made to a person called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.”
It is therefore clear that to determine whether or not a statement made by a witness is hearsay or not, it would be necessary to determine the purpose for which the statement was tendered or given in court. See AROGUNDADE vs. THE STATE (2009) 6 NWLR (Pt.1136) p.165; OLALEKAN vs. STATE (2001) 18 NWLR (Pt.746) P.793; OBINWUNNE vs. TABANSI-OKOYE (2006) 8 NWLR (Pt.981) p.1004. That being so, the statement will only be hearsay if it does not emanate from the person who saw, heard or perceived such evidence, it will be admissible in proof of the truth of that which is stated, and therefore not hearsay. See Sections 125 and 126 of the Evidence Act, 2011. PER HARUNA SIMON TSAMMANI, J.C.A.

JUSTICES

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

Between

1. CHIEF BRIGHT ONYEMEH
2. OYINYE MACDONALD Appellant(s)

AND

1. MRS. GRACE IWUEZE
2. MR. RAYMOND IWUEZE Respondent(s)

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.
On issue 1 (3.01), Learned Senior Advocate of Nigeria, for the Appellants submitted that, it is settled law that, a court is under a duty to evaluate all relevant and material evidence with a view to ascribing probative value to such evidence. He then cited the cases of AJAGBE v. IDOWU (2011) 17 NWLR (Pt. 1276) Pg. 422 at 448 Paras. G-H and ODOFIN v. MOGAJI (1978) 4 S.C. Pg. 91, to further submit that, it is after the exercise that the court would weigh the evaluated evidence on an imaginary scale. That bearing in mind, the case which the Appellants presented in the lower court. The court was expected to resolve the following:
a) Was it the 1st Defendant that constructed the building in question?
b) Did he receive an allocation for his efforts in constructing the said building?
c) Is the store in dispute one of the stores received for his efforts in (b) above?
Learned Senior Advocate then contended that, the 1st Appellant gave evidence of how he was given approval to build lock-up stores, and that the store in question was one of the stores he built, whereof that store and others were allocated to him. That the 1st Appellant went on to name the occupants of the adjoining stores to the one in dispute and also tendered Exhibits M, N – N3, P and Q to buttress his claim.
Learned Appellants’ counsel (silk) went on to submit that the 1st Appellant was vehement in stating that the building containing the store in dispute was constructed by him under an arrangement with the Owerri Local Government and that the trial court was under a duty to find out if this claim is true, but failed to do so by examining the relevant evidence on the issue such as Exhibit “P” and “M”, which support the Appellants’ case. That the learned trial judge merely glossed over such evidence, and also over looked the implication of the evidence of the 1st Appellant as to the owner or owners of the stores in the same building as the one in dispute. That the 1st Appellant testified that he owns the other stores in the same building as the one in dispute, which supports the Appellants’ testimony that he built the stores and got them as allocation for his efforts; which evidence the trial court failed to evaluate. It was therefore submitted that, if the learned trial judge had examined those pieces of evidence, his verdict would have been different.
It is also contended by learned Senior Advocate for the Appellant that, the 1st Appellant pleaded that, he owns the store in question and that the Respondents are his tenants. That the learned trial judge only picked on the incidence of tenancy and expected the 1st Appellant to prove it, as if it is the main issue and that from the statement of the learned trial judge at page 113 of the record on the issue of tenancy, it would appear that the trial court treated the matter before him as if it was a case of Recovery of Premises by a Landlord against a Tenant, which is not so in this case. That the 1st Appellant was only expected to proof his ownership of the store, and the fact that he claimed that 1st Respondent is his tenant would not transform the case into a tenancy case. That in the instant case, the Appellants discharged the primary onus placed on them, to show how the store became vested in them. That having done that, the onus was on the Respondents to prove that they are not tenants of the Appellants. He accordingly referred to a portion of the judgment of the trial court at pages 112 – 113 of the Record, to contend that the trial court would appear to accept the version of the 1st Appellant to the effect that he erected the 10 stores including the store in dispute, and that if that is so, the corollary to it is that, the store in question belongs to the 1st Appellant vide Exh. “M”. That the 1st Respondent therefore owes her occupancy of the store in dispute to a landlord/tenant relationship between her and the 1st Appellant.
Learned counsel for the Appellants argued issues 2 and 7 (3.02 and 3.07) together. There, it was contended by Learned Senior Advocate for the Appellant that, the Respondents did not prove their case on preponderance of evidence. Relying on the case of MOGAJI v. ODOFIN (Supra) learned Senior Counsel contended that, when all the credible evidence led by the Appellants and Respondents is weight, the Appellant’s evidence outweigh that of the Respondents. It was therefore contended that, from 1989 which the PW2 sold the store to the 1st Respondent, till date, they have not paid stallage fees for the store because, the Local Government refused to collect the fees on the ground that, they intend to use the store as a Fire Service Station. That the truth or otherwise of that claim remains hearsay, and only the Local Government can provide an answer to it. He then contended that the trial court merely glossed over this important point. That the P.W.3 did not supply the missing link, as his evidence and the report (Exh. “H”) issued by him is suspect. That if as contended by P.W.3 that Exhibit H was necessitated by Exh. “F”, it means that the chairman to whom Exhibit “F” was addressed, must have endorsed it to P.W.3, but there is nothing on Exhibit “F” to show that it was received or endorsed by the Chairman or his office to PW3 to treat. That in any case, P.W.3 stated under cross-examination at page 66 of the record that, it is the duty of the Chairman to issue a final Report but the Chairman did not issue such a report. Learned counsel then contended that the trial court overlooked those lapses in the evidence of P.W.3 and Exhibit (“F” and “H” and proceeded to accord them credibility.
Learned Senior Advocate for the Appellants also contended that, when the above piece of evidence of the Respondents are subtracted from the imaginary scale, it will become evidence that, the Appellants’ case is stronger. That the story of the 1st Respondent on the purchase of the store in 1989, and not being able to pay the stallage fees, will then cast a pall of doubt on the Respondents’ case. That this pall of doubt spreads over even the allocation paper and every document connected with the alleged sale, and that the evidence of the Local Government which could have cleared this doubt did not come. That in contrast, the Appellants’ story is that the 1st Appellant was authorized to construct a set of stores, for which he was duly compensated with allocation of all the stores he built. That there is also evidence of payment of stallage fees from 1995-2008 by the 1st Defendant, and that when it is seen that the Local Government refused to accept stallage fees from the 1st Respondent from 1990 – 2005, while it collected same from the 1st Appellant during the same period, it becomes clear that something was amiss. That the learned trial judge did not advert his mind to this aspect of the case, and that if those facts had been placed on the imaginary scale, it would be obvious that the Respondents did not prove their case on a balance of probabilities.
On issue 4(3.04),learned Senior counsel for the Appellant referred to the remarks of the learned trial judge at page 114 of the records, wherein the learned trial judge described the action of the 1st Appellant in using names of other people to obtain allocation of lock-up store or shops as fraudulent. He contended that, under Order 25 Rule 6(1) of the Imo State High Court (Civil Procedure) Rules, 1988, fraud must be specifically pleaded and particulars thereof supplied. That the Respondents pleaded fraud and forgery against the 1st Appellant only with respect to Exhibit “M” and that from what the learned trial judge said of Exhibit M at page 122 of the Records, the allegation of fraud and forgery were not made out. Furthermore, that the Respondents did not allege fraud against the 1st Appellant with respect to altering the number of the store from 25 to 25A or the use of other persons’ names to obtain allocation. That in any case, there is no evidence led at the trial to show that it was wrong for a man to use names of other persons to apply and receive allocation of stores. Learned Senior Counsel then wondered how the trial court got the evidence it relied upon to find the Appellant guilty of fraud. He then cited the case of N.E.P.A v. OSOSANYA (2004) 5 NWLR (Pt. 867) Pg. 601, to submit that, the remarks of the trial court, not supported by the pleadings and/or evidence is perverse in the extreme and must not be allowed to stand.
Learned senior counsel for the Appellant, argued as his issue 3(3.03) that, the evidence of the P.W.1 to the effect that, the refusal of the Owerri Local Government to accept stallage fee from her from 1998-2005 was because the site of the store was earmarked for Fire Service Station, is clearly hearsay. The case of UKPO v. IMOKE (2009) 1 NWLR (Pt. 1121) Pg. 90 at 147 Paras A-B was cited in support. He further relied on the case of BICHI v. SHEKARAU (2009) 1 NWLR (PT. 1140) Pg.311 to submit that the evidence of P.W.1 on the issue stated above is at variance with her pleadings and ought to have been rejected. That the evidence of P.W.1 that the 1st Defendant is in the habit of entering her store to renumber it was not pleaded. The cases of ABIMBOLA v. ABATAN (2001) 9 NWLR (Pt.717) Pg. 66 at 79 Para B and OTUKPO v. JOHN (2012) 7 NWLR (Pt.1299) Pg. 357 at 383 Para. C, were further cited in support.
On issue 6 (3.06), Learned Senior Advocate for the Appellants contended that, the learned trial judge was under a misdirection when he held that, “neither of Exhibits P, D and Q made reference to No. OW/M/AT/LK/25A” and that “there is nothing in Exhibit “Q” to show that it was issued by Owerri Local Government. Exhibit “P” and “Q” do not support the deposition of the D.W.1 in his Paragraph’s 6, 7, 8 of his Written Statement on Oath.” That the case of the Appellants is simply that; the building in which the store in dispute is located was constructed by him on the authority of Owerri Local Government, and that it is for this reason that he was allocated the store in dispute among others. That Exhibit “P” is evidence of the authority given to the 1st Appellant by Owerri Local Government council while Exhibit “M” is evidence of the allocation to him. Learned Senior Counsel for the Appellant then found it difficult to understand why the learned trial judge would want Exhibit “P” to make reference to No. OW/M/AT/LK/25, because according to him, it is Exhibit “M” that should be expected to make reference to any store, and that it did so. Furthermore, that Exhibit “M” shows that it was the 1st Appellant who built or contributed to the building of the relevant store.
It is also the contention of learned Senior council for the Appellant that, it is not the case of the Respondents that Exhibit “Q” was not issued by Owerri Local Government. That there was no question about the genuineness of the said Exhibit “M” either during the trial or in the address of counsel. That the issue was not raised in the Respondents’ pleadings either. It was therefore submitted that, in holding as he did, the learned trial judge made a case for the Respondents contrary to their case. The cases of OGBORU v. S.P.D.C NIG. LTD (2005) 17 NWLR (Pt. 955) Pg. 596 at 619 and ADEBAYO v. SHOGO (2005) 7 NWLR (Pt. 925) Pg. 480 were then cited to submit that the trial court was under a duty not to make out a case different from the case submitted by the Respondents. That it is clear and explicit that Exhibit “M” was issued to the 1st Appellant, who testified to that effect at page 78 of the record of appeal.
Learned Appellants’ counsel then cited the cases of ADESULE v. MAYOWA (2011) 13 NWLR (Pt. 1263) Pg. 135 at 171 Paras. E-F and CAMEROON AIRLINES v. OTUTUIZU (2011) 4 NWLR (Pt. 1233) Pg. 512 at 545 Paras. A-B, to submit, the Respondents having failed to challenge or contradict the 1st Appellant in his testimony on Exhibit “Q”, are taken as having admitted as true the testimony of the said 1st Appellant on that point. That there is enough information on Exhibit “Q” supported by the oral evidence to assist the court to justly determine the case. That if the trial court had carefully read the deposition of the 1st Appellant in conjunction with Exhibits M, N – N3, P and Q, it would have concluded that Exhibits “P” and “Q” do support the deposition of the D.W.1 in his Paragraphs 6, 7 and 8. We were then urged to resolve these issues in favour of the Appellants.
Mr. U. C. Osuji of learned counsel for the Respondents contended that, the learned trial judge did fully and effectively evaluate all the evidence led on behalf of the Appellants, and which evidence did not show that the store in question belongs to the 1st Appellant. He drew our attention to pages 112 line 1 – 114 line 26, to further contend that, the trial court considered the evidence of the Appellants in support of their claim to ownership, and placed same side by side with the claim of the Respondents, and came to the conclusion by relying on the authority of MOGAJI v. ODOFIN (1978) 4 S.C. Pg. 1, that the Respondents’ case outweighs that of the Appellants. That, the Appellants relied on Exhibit “M” which is the purported allocation letter given to the 1st Appellant, exhibits N-N3 which are receipts of payment to Owerri Municipal Council, exhibit P which is titled completion block of lock-up stores and exhibit “Q” which is a purported building plan which has no number. That all those exhibits tendered by the Appellants were dully considered alongside the oral evidence of the Appellants at pages 111 line 28 – 31 and 112 lines 1-16 of the records.
It is further contended by the Respondents that, the parties derive their titles to Exhibit “A” for the Respondents and Exhibit “M” for the Appellants, both of which are said to emanate from Owerri Local Government. That the Respondents called P.W.3 who was the Director Administration and General Services (DAGS) at the relevant time, to support their allocation, but the Appellants did not call any staff of the Owerri Local Government to support their claim to the store. That in evaluating the evidence at pages 113 lines 20-31 and 114 lines 1 – 3, the testimony of P.W.3 on the issue. Learned Respondents’ counsel disagreed with Appellants’ contention that the findings of the trial court at pages 112 lines 27-31 and 113 lines 1 – 12 support the version of the 1st Appellant that he built the 10 stores in the building inclusive of the shop in question, the corollary of which is that, the store in question belongs to the 1st Appellant and that the 1st Respondent owed her occupation of the store to a landlord/tenant relationship between her and the 1st Appellant. Rather, learned counsel for the Respondents submitted that, it is clear from pages 112 lines 26-31 and 113 lines 1 – 2 that the trial court found in favour of the Respondents. That in so doing, the learned trial judge never placed a higher burden of proof on the Appellants beyond what was expected of them to prove that 1st Respondent was a tenant of the 1st Appellant. That it was the 1st Appellant who asserted that the 1st Applicant was his tenant, which fact the Respondent denied, and therefore the burden was on the 1st Appellant to prove his assertion of the existence of tenancy relationship between him and the 1st Respondent.
It was therefore submitted by learned counsel for the Respondents that, from the evaluation of the oral evidence of the parties and the material documents tendered as Exhibits A, H, M, P and Q, the trial court did carry out its duty of evaluation of all relevant material evidence, and duly ascribed the correct probative value to them as required by the case of AJAGBE v. IDOWU (2011) 17 NWLR (Pt. 1276) Pg. 322 at 448. That after the evaluation of such evidence, the learned trial did place the said evaluated evidence on the scale of justice as laid down in the case of MOGAJI v. ODOFIN (supra), and came to the conclusion that the evidence of the Claimants/Respondents outweigh that of the Defendants/Appellants. He supported his submission with the case of AGBAJE v. FASHOLA (2008) ALL FWLR (Pt.443) Pg. 1302 at 1357. We were then urged to hold that the learned trial judge did fully evaluate all evidence at the trial.
On issues 2 and 7, learned counsel for the Respondents is of the view that, in view of the issues raised or canvassed in issue 1, the arguments on issue 2 and 7 are suplusages. He however contended that in view of the extensive arguments on issue 1 above, the Respondents duly proved their case on the preponderance of evidence as required by law. He also contended that, apart from Exhibit “A” which is the allocation paper issued to P.W. 2, in respect of store No. 25, the Respondents also tendered Exhibits B, C, D and E which are the transfer of ownership from P.W.2 to P.W.1, the stallage fee of N300 of payment for security fee and the transfer of lock-up stores. That on the other hand, the Appellants tendered Exhibits N, N1, N2 and N3, which are payment for stallagge fees for 1995, 1996 and 1997, 2007, which do not operate to revoke the allocation made to P.W.2. That no explanation was given for the absence of receipts for 1998, 1999, 2000 – 2006. It was therefore contended by the Respondents that, the main issue decided by the court below is, as between the Appellants and the Respondents who was entitled to ownership of the store, and that payment of stallage fees, like any other payment of property rate, does not confer ownership of the property on the person paying.
Learned counsel for the Respondents went on to submit that, while the Respondents called PW3 who looked into the matter, the Appellants only relied on Exhibits M, P and Q which the court below found to have been fraudulently made. That Exhibit F is a file copy of the letter sent to the Local Government by the Respondents’ solicitor and which the PW3 identified. He therefore submitted that, the contention of the Appellants’ learned counsel that exhibit F does not have the endorsement of the Local Government Chairman is misconceived, as what was tendered is not the copy sent to the Chairman. That it was Exh. F that made the P.W.3 summon both parties for a meeting, which the 1st Appellant admitted he attended. That in the circumstances, the testimony of P.W.3 who was the head of administration, was bound to be accepted and used to clarify the issue from the Local Government. Learned Respondents counsel then submitted that, in the circumstances, when the evidence led are placed on the imaginary scale, it is obvious that the Respondents’ proved their case on the balance of probabilities.
It is the contention of the Respondents on issue 3 that, the evidence of the Respondents that the Owerri Local Government refused to accept stallage fees from her because the building was to be demolished for the erection of Fire Service Station is not at variance with her pleadings. That the said facts were pleaded at Paragraph 8(a) of the Amended Statement of Claim and that the P.W.1 gave evidence thereof at page 28 lines 25 -29 of the record. That the averment was not challenged or denied by the Appellants in their Statement of Defence is therefore deemed to be admitted. That the attempted denial in Paragraphs 16 and 17 of the written deposition of D.W.1 is at variance with the Appellants’ pleadings and thus goes to no issue. It was also submitted for Respondents that, the testimony of P.W.1 that the 1st Appellant was in the habit of entering the store in dispute to renumber it need not be specifically pleaded, as only facts are pleaded and not evidence. That the Respondents having pleaded at Paragraphs 10 and 17 of the Amended Statement of claim, the threats and interference of the Appellant, it was sufficient to accommodate the testimony of the 1st Respondent on the renumbering of the store by the 1st Appellant.
On the issue of fraud (issue 4), learned counsel for the Respondents submitted that, it was in the process of evaluating the evidence that led the trial court to conclude that the action of the 1st Appellant is fraudulent. That the assertion by the 1st Appellant that he built 10 stores for the Local Government and all of the Ten (10) stores were allocated to him in different names shows that he was hiding something or trying to cover some fraud. That in any case, the fraudulent activities of the 1st Appellant were pleaded in Paragraphs 7, 9 and 10 of the Amended Statement of claim, and the learned trial judge was therefore right when he held that those actions were fraudulent.
On issue 6, learned counsel for the Respondents contended that Exhibit P is captioned “Completion of lock Up Stores” and on the body of the exhibit, it is stated clearly, that the application is to complete existing and uncompleted lock-up stores within 14 days. It is therefore contended that the contents of Exhibit P is at variance with the deposition of the 1st Appellant (D.W.1) to the effect that he started the building and completed same. That if what D.W.1 said is true, then Exhibit P does not refer to the building of stores he was referring to in his deposition. That Exh. Q does not have a Plan Number and did not show that it has any bearing with Owerri Local Government. That, it is based on the findings that the learned trial judge held that Exhibits P and Q do not support the deposition of D.W.1 in his Paragraphs 6, 7, and 8. It was accordingly submitted that, based on the evaluation of the evidence both oral and documentary, the trial court was right when it made those findings of facts.
Now, a careful consideration would show that all the issues raised as issues 1, 2, 3, 4, 6 and 7 summarized above, question the evaluation of the evidence by the trial court. It is necessary to point out that, it is the duty of the trial court who had the advantage of seeing and hearing the witnesses, to evaluate and ascribe probative value to the evidence adduced at the trial. An Appellate court does not enjoy that singular opportunity of seeing and hearing the witnesses.

Accordingly, an Appellate court is always reluctant to interfere with the findings of fact made by the trial court, especially where such findings touch on the credibility of witnesses. Appellate Courts therefore only interfere, where the trial court failed in his primary duty of evaluating the evidence and ascribing the right probative value to it. Generally an appellate court will interfere where there are special circumstances to warrant or justify the interference; such as where the appellate court finds that the trial court failed to properly evaluate the evidence presented before it and which finding led to a perverse decision or occasioned a miscarriage of justice. A perverse decision is one where the trial court took into account extraneous matters or shut its eyes to cogent facts before it. It is also one where the trial court misapplied the principles of -law to the proved facts before it or deduced wrong conclusions upon application of the principles of law to the proved facts. See OKONKWO v. OKONKWO (2010) 14 NWLR (Pt. 1213) Pg.228; OCHIRI v. N.A.O.C. LTD. (2010) 14 NWLR (Pt. 1213) Pg. 208; ALI v. SALIHU (2011) 1 NWLR (Pt. 1228) Pg. 227 and NIKAGBATSE v. OPUYE (2010) 14 NWLR (Pt. 1213) Pg. 50.

The burden is on the party who complains about the findings of facts and evaluation of the evidence by the trial court, which normally is the Appellant, to show from the evidence or the printed record how the findings of the trial court are wrong. In other words, the Appellant has to demonstrate that, if the learned trial judge had not found as he did the result would have been different.

From the position of the law on the duty of a trial court in the evaluation of evidence stated above, my duty here is to consider if from printed record before us, the learned trial judge of the court below, did carry out his duty of evaluating the evidence adduced before him as required of him by law. The duty of the trial judge in evaluation of the evidence, is to put all the evidence called by each side on the issue on either side of the imaginary scale of justice, weigh them together, taking care that only evidence of the same kind are put on the imaginary scale or weighed together. Upon doing that, that side that outweighs the other in probative value, should be believed by the trial court in arriving at a just and final decision. See SHA JNR v. KWAN (2010) 8 NWLR (Pt. 670) Pg. 685 and UKAEGBU v. NWALOLO (2009) 3 NWLR (Pt.1127) Pg. 194.

Though there is no general rule as to the style or approach to adopt in judgment writing or the process of evaluating evidence, there are minimum or recommended standard on the stages to be adopted or followed in reaching or arriving at a fair judgment or decision. Generally:-
a) The learned trial judge should begin by considering the evidence led by the plaintiff, so as to see whether, the plaintiff has led sufficient and credible evidence on all material issues required of him to prove his case. At this stage, the question of belief or disbelief of the witnesses does not arise. If upon the evaluation of the evidence led by the Plaintiff at this stage, the court finds that the evidence is not sufficient as to prove or establish the claim, then, it would mean that the plaintiff has not made out a prima facie case, and in such a circumstance, the trial court does not need to consider the case of the defendant at all. In such a situation, it would not matter that the defendant called no evidence.
b) If the trial court comes to the conclusion that the evidence led by the plaintiff is credible enough as to infer a prima facie case, and where the defendant has called evidence, the next stage would be for the court to evaluate the evidence led on both sides, and in doing so, it must bear in mind (a) on whom the burden of proof of particular facts in dispute lie (b) whether there is any evidence which requires any special approach, and (c) the court will then make its findings having regards to the onus of proof that will ultimately determine the outcome of the case.
See TRADE BANK PLC v. CHAMI (2004) ALL FWLR (Pt. 235) Pg. 118 at 145-146; MOGAJI & ORS v. ODOFIN (supra); WHYTE v. JACK (1996) 2 NWLR (Pt. 431) Pg. 407 at 442 and WOLUCHEM v. GUDI (1981) 5 S.C. Pg. 291 at 294.

It is clear from the above stated principles that, the first thing a trial court must bear in mind in the evaluation of the evidence led before him, is to determine on whom the burden of proof lies. The law is that, the general or ultimate burden of proof in civil cases, lies on the party who asserts the affirmative of the issue. Thus, the burden of proof in the sense of establishing the case ultimately lies with the party who would fail, if no evidence at all is led on the issue in controversy before the court. Putting it in another way, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence at all were produced on either side, regard being had to any presumptions that may arise on the pleadings. Accordingly, the general or ultimate burden would be on the plaintiff who would fail, if no evidence at all were led in the case by either side. See Section 131(1) & (2) and 132 of the Evidence Act, 2011. See also MECHANIC v. ONISESIN (1998) 2 NWLR (Pt. 538) Pg. 446; OKENE v. ORIANWO (1998) 9 NWLR (Pt. 566) Pg.408; OKOROAFOR v. ABAWORONINI (1996) 2 NWLR (Pt. 430) Pg. 278; BROADLINE ENT. LTD v. MONTEREY MARITIME CORP. (1995) 9 NWLR (Pt. 417) Pg. 1 and ADEGOKE v. ADIBI (1992) 2 NWLR (Pt.242) Pg. 410. This general or ultimate burden is static and remains throughout on the plaintiff who desires the judgment of the court and who is the party that would fail to obtain the judgment of the court, if on the totality of the evidence adduced at the trial, the balance on the imaginary scale does not tilt or preponderate in his favour. The standard of proof required of him is that on a balance of the probabilities or a preponderance of evidence.
It is however necessary to point out that, in the course of trial, various issues may come up for the court to determine. In most cases, those issues arise from the pleadings of the parties. In such a circumstance, the burden of proof of those issues will depend upon or be fixed by the pleadings. That will then make the onus of proof to tilt, shift or oscillate from the plaintiff to the Defendant and vice-versa, depending on the state of the pleadings, as the proceedings progress. See Section 133 of the Evidence Act, 2011 and the cases of UDECHUKWU v. NGENE (1992) 8 NWLR (Pt. 261) Pg. 565; AWOFOLAJU v. ADEDOYIN (1992) 8 NWLR (Pt. 260) Pg. 492; UNION BANK OF NIG. LTD v. AJAGU (1990) 1 NWLR (Pt. 126) Pg. 328; MADUMMA v. JAMBO (2001) 15 NWLR (Pt.736) Pg. 461 at 476; OKEWE v. ORIANWO (1998) 9 NWLR (Pt. 566) Pg. 408 at 440; ITAUMA v. AKPE-IME (2000) 7 S.C. Pg. 24 and ELEMA v. AKENZUA (2001) 6 S.C (Pt.111) Pg. 26.
In the instant case, the Respondents were the Plaintiffs at the trial court, while the Appellants were the Defendants. Consequently, the Respondents, who were Plaintiffs had the ultimate burden to prove their case by accepted and credible evidence. Consequently, to determine this case, it would be necessary to determine the nature of their claim before the trial court. The answer can only be found in their Amended Statement of Claim and the evidence led thereon by them. After a careful perusal of the Amended Statement of claim. I am of the view that, the nature of the Respondents’ claim or the cause of action can be found at Paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the Amended Statement of Claim. The 1st Respondent led evidence thereon and called two other witnesses who testified in support. The Appellant also testified as the D.W.1 and called one other witness. The Appellants are however of the view that the learned trial judge failed to properly evaluate the relevant evidence led by them on how they acquired the lock-up shop in dispute. Both of them tendered documents in support of their respective claims.
While testifying in proof the Respondents’ case, the 1st Respondent stated in his evidence in chief at page 27 lines 6-10 of the record as follows:
…I know store No. OW/M/AT/LK/25. It is my shed. I approached one Nze Ekpemarachi the allotee of the shed, who transferred his interest in the shed to me. Nze Ekpemarachi got the store from the Owerri Local Government. When he sold the store to her he gave me all the documents relating to the shed to me. The documents are: Allocation paper, Change of Ownership. This is the letter of allocation of the shed.”
Accordingly, the letter of Allocation of the Lock-Up shop and the Transfer of Ownership were tendered and admitted in evidence as Exhibits A and B respectively without objection. The Allocation Paper and Receipt for the payment of security levy were also tendered and admitted in evidence as Exhibits C and D respectively. The 1st Respondent also stated at page 28 lines 19-23 of the record that, it was the 1st Appellant who introduced her to Mr. Ekpemarachi, her vendor, and that after payment for the purchase price of the shop, the said Nze Ekpemarachi took her to the Owerri Local Government council, where she made payment to the Local Government, whereof she was issued a receipt and her name entered as the owner of the shop. The receipts for the payments were admitted in evidence as Exhibit E and E1 respectively. That she started selling her wares in the shop thereafter. The Respondents also called their vendor, Nze Ekpemarachi who testified as the P.W.2. He stated at page 57 lines 5-13 as follows:
“I know the parties in this suit. I know them in connection with the shed I have at Owerri Market. I have given out the shed to one Sophia Jehova (the 2nd plaintiff in this suit). I also know the 1st defendant. It is through the 1st defendant that I came to know the 2nd plaintiff whom I gave my said shed. The plaintiffs are husband and wife. I gave documents to show that I gave my shed to him. The name on the document is Grace Iwueze, 1st plaintiff. Apart from the document I gave to Grace Iwueze, I gave her all the documents in respect of the said shed. These are documents I handed over to 1st plaintiff. They are Exhibits “A”, “B”, “C”, “D”, “E – E1″. There was somebody who looked into this matter before it came to court.”
Under cross-examination he (P.W.2) stated that:
“I do not know the 1st defendant has many lock-up stores at Owerri Main Market. I went to the market to find a possible buyer of my shed, I went to see Oriheoma in the market, I did not see him. I saw the 1st defendant and told him I was looking for somebody to buy the shed. He said he has a relation who would buy it. I asked him to bring the person to my house. He brought the plaintiff we agreed on the purchase and transferred all my documents to the plaintiff. I gave him the Exhibits I identified in court.”
The above witness stated further that, he was allotted the shed (shop) by the Local Government Council when he was a Councillor and that all other -Councillors were also given shops in the market. That he was given all the allocation papers which he handed over to the plaintiffs (respondents).
On the other hand, the 1st respondent who testified in defence as DW1 stated at paragraphs 3, 4, 5, 6, 7, 11, 12 and 13 of his written deposition as follows:
“3. That I know the store known as No. OW/M/AT/LK/25A located in the Owerri Main Market (Ekeukwu Owerri).
4. The said store was allocated to me by the Owerri Local Government in the name of my son.
5. That I constructed the entire building in which the said store is located.
6. That I did so on behalf of the Owerri Local Government which compensated me by allocating most of the stores located therein to me.
7. The building contains ten stores and all of them belong to me under different names.
11. It is not true that I took the plaintiffs to Nze Ekpemarachi to negotiate the sale of store No. 25A, which rightfully belong to me.
12. It is also not true that I was paid any commission not to talk of paying me N5,000:00 when a store was at the time selling for about N2,000:00.
13. The 1st plaintiff entered the store in question as my tenant and/or licence (sic) and when she defaulted in the payment of rent I served her a quit notice the plaintiffs contrived to deprive me of the store by laying false claims as to its ownership.”
He stated under cross-examination as follows:
“…… Yes, the Owerri Local Government gave me some stores to construct. I entered into agreement with them. It was an oral agreement but they fulfilled their own part of the agreement. There were ten stores in the building I was asked to build. According to the agreement, all the stores were allocated to me in different names. It took me six months to build the ten stores. By the time I was given approval to build the stores, there was no building on the land. The Local Government gave me a Bill of Quantities showing the type of building. I was also given the drawing the type of building to put up. I was not given any certificate of completion after the completion of work but I was taken to the Chairman of the Local Government and informed him that I had completed work and he issued me with allocation papers.”
I also need to point out here that the appellant tendered the allocation paper given to him in respect of No. OW/M/80/25A, Receipts for stallage payment, letter titled completion of Lock-up Stores and building design were tendered by the appellants and admitted as Exhibits M, N-N3, P and Q respectively.
Upon consideration of the evidence of the parties as to their root of title, the learned trial judge held that the store or shop which the respondents refer to as No. 25 while the appellants refer to it as No. 25A is the same store or shop which is in dispute in this case. It is therefore agreed that the property, the subject of this dispute is known by both parties. In other words, it was found by the trial court that the identity of the property in dispute is settled and therefore not contested. After considering the evidence led by the disputants the learned trial judge held at page 112 lines 4-16 as follows:
“Examining the allocation papers Exhibits “A” and “M” tendered by the parties, Exhibit “A” , the letter of allocation issued to Nze Ekpemarachi P.W.2 by Owerri Local Government in 1989 and he transferred same to Mrs. Grace Iwueze. Exhibit “M” letter of allocation to the 1st defendant in the name of his son the 2nd defendant by Owerri Local Government. It is dated 3/12/94.
Exhibit “A” and “M” were issued by the same issuing authority i.e. Owerri Local Government. Exhibit “A” was issued on 16th February, 1989 and Exhibit “M” was issued more than five years after Exhibit “A” was issued in respect of the same lock-up store. Exhibit “A” is first in time. There is nothing to show that Exhibit “A” was revoked by Owerri Local Government before Exhibit “M” was issued. Exhibit “A” was still subsisting at the time Exhibit “M” was issued. There cannot be double allocation of one lock-up store in the Owerri Main Market to two different persons. The first in time prevails.”
It is clear therefore that the trial court carefully evaluated the documents relied on by the parties as conferring title or occupation of the store on them. The result of his evaluation and finding is that Exhibit “A” being first in time prevailed over Exhibit “M” being a later document, unless there is evidence that Exhibit “A” had been revoked. He found that there was no such evidence of revocation of Exhibit “A”. The logical corollary of that finding is that, the respondents had proved a better right or title to the lock-up shop in question than the appellants. Furthermore, it is evident on the record that the 1st respondent was in possession and in fact actual occupation of the lock-up store in dispute. It is my view that the learned trial judge correctly applied that law, for it is the law that where two or more persons contest title or ownership of any land or property, the principle of priorities will apply where both parties claim to have acquired the property from the same vendor or his privies. The position of the first purchaser would be made stronger if, as in this case, it is found that he is in possession. See OSAGIE vs. OYEYINKA (1987) 2 NCSS P.840; OGWUNZE vs. ADELEKE (2008) 2 NWLR (Pt.1070) P.148; AMINU vs. OGUNYEBI (2004) 10 NWLR (Pt.882) P.457; AYINLA vs. SIJUWOLA (1984) NSCC P.301; REG. TRUSTEES OF THE APOSTOLIC FAITH MISSION vs. JAMES (1987) 2 NSCC P.1047; OWOSHO vs. DADA (1984) NSCC p.568 and KACHALLA vs. BANKI (2006) 8 NWLR (Pt.982) p.364. The fact that the 2nd purchaser, as in the instant case, was issued with receipts or allocation is of no relevance, as the existence of such documents is not a magic wand to be used to destroy the existing rights or title over the property in dispute. For the subsequent documents to be valid and effectively confer rights on the owner, there must not be in existence at the time it was issued, a prior holder of the title or right over the property.
In the instant case, Nze Ekpemarachi who sold the shop to the 1st respondent was issued the allocation paper on the 16/2/1989 (exhibit A) and he validly transferred his rights over the land to the 1st respondent vide Exhibit “B” dated the 18/9/1989. The transfer of the ownership of the store or lock-up shop was effected vide Exhibit E dated 14/2/1990 and Exhibit E1 also dated the 14/2/1990. The document the appellants rely on as conferring ownership of the shop was issued on the 3/12/1994, about five years after the allocation of the said shop to Nze Ekpemarachi, the respondents’ vendor. The said document is Exhibit “M” on record. The respondents’ document of title is clearly earlier in time and therefore has priority over that of the appellants. Furthermore, the validity of Exhibits “A”, “B”, “C”, “D” and “E – E1” were not impugned at all. The finding of the trial court as cited above cannot therefore be faulted.
I have also given consideration to the claim of the appellants. Their claim is that he was directed by the Owerri Local Government to construct or build the shops, which include the shop in dispute. That it was in consideration of his work that he was allocated all the ten shops in the said building. The document he relied on as the document contracting him to build the shops is exhibit “P”. It appears to me that the document in question i.e. Exhibit “P” does not support the claim of the appellant. A carefully look at the said Exhibit “P” which is dated 7/9/94, reveals to me that it was an authority for the appellant to complete the construction of certain lock-up stores at the Owerri Main Market, and that he was expected to complete the construction within 14 days from the date of approval. Certainly, it is difficult for me to believe that ten lock-up shops could be started from its foundation and completed within 14 days. Happily, the 1st appellant himself cleared the air when he stated under cross-examination that it took him six months to complete construction of the shops. If that is so, could the shops it took him six month to complete or build, be the same stores he was authorized to complete by Exhibit “P”? The appellant further compounded his difficulty when he stated under cross-examination that the agreement to construct the shops, was an oral agreement. If the agreement was oral, why tender Exhibit “P” which is documentary, as the agreement between him and the Local Government to build the shops. See page 83 of the records. On that score, I am tempted to say that there was no such agreement between the 1st Appellant and Owerri Local Government. I also note that the Appellant stated that it took him six months to build the ten stores (page 83 lines 15 of the record). I presume that, as he relied on Exhibit “P” which is the contract document, and which is dated 7/9/94, he completed building the stores in March, 1995. However, by Exhibit “M”, he was allocated the shop on the 3/12/94. That was even before the shops were built and numbered. He did not say he was allocated the shops before he executed the job or work. Indeed he stated at page 83, under cross-examination that:
“I was not given any certificate of completion after the completion of work but I was taken to the Chairman of the Local Government and informed him that I had completed work and he issued me with allocation papers.”
It is therefore clear to me that, the evidence of the appellant that he constructed the stores, including the store in dispute is not credible at all. If placed on the imaginary scale of justice, the evidence placed before the court by the respondents would out-weigh that of the appellants.
The appellants also complained that the learned trial judge placed or imposed a burden of proof on the 1st defendant not necessitated by the pleadings or evidence. The appellants’ complaint is that, the trial court imposed a higher onus on the 1st appellant when it required the 1st appellant to lead evidence to prove tenancy between him and the 1st respondent. That such onus is unnecessary as the onus was on the 1st respondent to prove that she is not a tenant of the 1st appellant who had proved title. The statement or finding of the trial court complained of is at page 113 lines 6-12 of the record. Therein, the learned trial judge had held that:
“The 1st defendant in establishing the fact of tenancy of the DW1 must by credible evidence establish the existence of the tenancy agreement with the DW1 who denied such tenancy. He is expected to prove tenancy by proving the existence of the tenancy, the rent payable by the P.W.1 to him, he must prove the nature of the tenancy by reference to period of time by which rent is paid. Rents so far paid. Receipts issued to the 1st claimant. These facts are not placed before the court. The evidence of the D.W.1 that the P.W.1 is his tenant in that store is not credible and it is not proved.”
The trial court arrived at that reasoning and conclusion on the background of the pleading of the appellants in paragraph 4 of the amended statement of defence, were he averred that:
“……The 1st plaintiff entered into possession of the store as a tenant and or licencee of the defendants. She has been in default of payment of rent to the defendants hence a notice to quit was served on her.”
I had pointed not earlier in the course of this judgment that, in civil cases, the burden of proof is upon the party, whether plaintiff or defendant, who asserts the affirmative of an issue, and who would fail, if no evidence were led on that which is asserted. It means therefore that the burden of proof in such situations is fixed by the pleadings before evidence in the case is gone into. That burden is to prove a positive assertion and not a negative assertion, for it is easier to prove a positive assertion than a negative assertion. See MADUMMA vs. JAMBO (supra); JACK vs. WHYTE (2001) 6 NWLR (Pt.709) p.226 at 272; NIGERIAN MARITIME SERVICES vs. ONISESIN (1998) 2 NWLR (Pt.538) p.446 and OKENE vs. ORIANWO (supra) at 440. That being so, the burden was on the appellants who asserted that the 1st respondent was their tenant to prove same. The 1st respondent had no duty to prove that she was not a tenant, as claimed by the 1st appellant. The learned trial judge therefore rightly placed the burden of proof of the assertion on the appellants that the 1st respondent was a tenant. He also rightly found that the appellant proffered no evidence of such tenancy relationship between the 1st Appellant and the 1st Respondent. It is therefore erroneous to contend as done by learned senior counsel that the trial court placed a duty on the Appellants as is not required on them by law. In any case, there is no iota of evidence in such tenancy relationship on the record beyond the bare ipse dexit of the Appellants.
Learned senior advocate for the Appellants made a mountain of argument on the issue that, the PW2 sold the store in question to the 1st Respondent in 1989, but from that 1989 till date, no stallage fee had been paid by the 1st Respondent, on the excuse that the Local Government refused to collect the stallage fee because they intended to demolish the building so as to erect a Fire Service Station. The arguments of the Appellant and that of the Respondents had been summarised in the early part of this judgment. The long and short of the Appellants’ argument here considering that the 1st Appellant paid stallage fees from 1995-2008, while the Local Government did not or rather refused to collect the stallage fees from the 1st Respondent indicates that something was amiss with the Respondents’ claim. Truly, from the record of appeal, and particularly page 28 lines 25-29 thereof, the 1st Respondent stated as follows:
“I went to Local Government to pay for the shed and the Local Government refused to accept my money and the Local Government Said they would demolish the shed and that the place would be used for the fire brigade office. That was in 1989 and since then the Local Government refused to accept the annual fees from me.”
The P.W.1 reiterated this fact when in continuation of her testimony on the 15/5/2006, at page 41 lines 9 -14 she stated that:
“Yes I went to pay at the Local Government and where (sic) told that chief Bright had paid in the name of the 2nd defendant. It was in the year 2005. From 1989-1990, I was paying the stallage fee, the Local Government refused to accept the money alleging the place would be demolished and used for Fire Service Station. I do not know when else they started to collect the stallage fees but I went last year to pay but the defendant had already paid for it.”
It is this testimony of the 1st Respondent that the Appellants contend, casts a pall of doubt on the entire claim of the Respondents, including the allocation paper and every document connected with the alleged sale, and that only evidence of the Local Government, which did not come, could clear this.
I have looked at the entire gamut of the judgment of the court. I cannot see anywhere in the judgment where the learned trial judge pronounced on the issue of payment or non-payment of stallage fee and its consequence on the claims of the parties. Perhaps, the learned trial judge did not see its relevance in the determination of the respective rights of the parties. If my guess is correct, then I am of the view that the trial court may be right. On that score, I am inclined to agree with the submission of learned counsel for the Respondents, when he contended at page 10 Paragraphs 5.10 – 5.11 that:
“The main issue in this case which the trial court decided on was, between the claimants and the defendants who was entitled to the ownership of the store? Or between Exhibit A and M which is the real and genuine allocation of store No. 25? This issue was resolved satisfactorily by the lower court payment of stallage fee like payment of property rate cannot entitled (sic) a person to ownership of a store or land.”
Indeed, that is the crux or umbilical cord of this case. Without a valid title, payment of stallage fee has nothing on which to stand. In other words, payment of stallage fee is dependent upon a valid title to the store, as you cannot put something on nothing and expect it to stand. It therefore means that where the party claiming ownership of the property has been able to prove validity of his title, the fact that stallage fee had not been paid or refused, will not operate to invalidate the title of the claimant. The issue of failure to pay stallage fee or refusal to collect same should be an issue between the claimant who has ab initio proved title and his vendor; and in this case between the Local Government and the 1st Respondent. However, as between the Appellants and the Respondents, non-payment of stallage fee cannot operate to void the Respondents’ title in favour of the Appellant. In any case’ the P.W.2 stated the consequence of failure to pay stallage fee at page 58 lines 14 – 19, under cross-examination, as follows:
“It is true that store owners in Owerri Municipal pay stallage fee. If a person fails to pay stallage fee we send debt collectors to collect the stallage fee from him. If he persistently refused to pay the stallage fee, his store will be locked until he pays them, the store will be open for him. Any owner of store can rent his store to another person who pays rents to him.”
The evidence shows that, the 1st Respondent after he was put in possession and occupation of the shop, she had been in possession of same till the Appellant layed claim to same. The P.W.2 (Nze Ekpemarachi), the original allotee had transferred his title to her as evidenced by Exhibit “B” and “E”. The Owerri Local Government had consented and actualized the transfer, vide Exhibit E1. There is no evidence on record that, the Local Government was dissatisfied with the conduct of the 1st Respondent in any way. In fact when the dispute arose between the Respondent and the Appellant, P.W.3 who was Director of Administration and General Services, gave uncontradicted evidence that he investigated the matter and found out that, store No. T/25 was lawfully allocated to the P.W.2 (Nze Ekpemarachi). The issue of payment of stallage fee is therefore a non-issue as between the Appellant and the 1st Respondent.
The Appellants also complained that the remarks of the learned trial judge at page 114 of the record of appeal, wherein he described the action of the 1st Appellant as fraudulent is not supported by the pleadings and evidence, and therefore perverse. The arguments of counsel had been summarized at the beginning of this judgment. It suffices to state that, the learned trial judge had found and thus held at page 114 lines 3 – 12 as follows:
“The action of the D.W.1. in the circumstances is fraudulent. Also in his written deposition, the D.W.1 stated in Paragraphs 4 and 7 as follows:
4. The said store allocated to me by the Owerri Local Government in the name of my son.
5. That the building contains ten stores and all of them belong to me under different names.
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. It has not been shown by evidence that these other people under their various names applied to Owerri Municipal council for allocation of stores.”
From the portion of the judgment of the trial court quoted above, it appears to me that the Appellants misconceived the reasoning or rationale for the remarks of the trial court. The learned trial judge did not base or premise his reasoning on the deposition of the Respondents. He relied on the pleading and evidence of the 1st Respondent which, in the opinion of the learned trial judge revealed fraudulent conduct in the action of the 1st Appellant as stated in Paragraphs 4 and 7 of the written deposition. Even if the Respondents did not specifically plead fraud, I am of the view that, where facts in the Appellants’ case revealed the elements of fraud or fraudulent activity in the evidence relied on by the Appellant in prove of their case, the trial court was entitled to say so. Indeed, I agree with the view expressed by the learned trial judge in the passage of his judgment referred to, that the conduct of the 1st Appellant in the acquisition of the ten (10) shops he alleged he built for the Local Government was fraudulent. If indeed, the ten (10) shops were allocated to him as compensation for the work he did for the Local Government, where is the evidence? Again, if the transaction or allocation was legitimate and transparent why cover the real allottees of those shops or allottees of the shop. By taking up the allotments in the names of persons other than his own, there was something the 1st Appellant was trying to hide. That conduct in my view was rightly described by the learned trial judge as fraudulent.
It was also contended, by the Appellants, as their argument on issue 3 that the evidence of P.W.1 to the effect that the refusal of the Owerri Local Government to accept the stallage fees from her from 1989 till 2005 or date, was because the site of the store was earmarked for Fire Service Station, is hearsay evidence. It should be noted that the Respondents pleaded this fact and led evidence thereon at the trial without any objection to its admissibility by the Appellants. It was also not raised in the arguments of the Appellants by their Written Address at the trial court. The court below therefore had no opportunity of pronouncing on same. Furthermore, the Appellants have not sought for nor obtained leave of this court to raise same as a fresh or new issue. See GABRIEL v. THE STATE (1989) ALL NLR Pg. 457; GAJI & ORS. v. PAYE (2003) 8 NWLR (Pt. 823) Pg.583; DAGACI OF DERE v. DAGACI OF EBWA (2006) 7 NWLR (Pt. 979) Pg.382; ONYEMAIZU v. OJIAKO (2010) 4 NWLR (Pt. 1185) Pg.504; MICHAEL v. YUOSUO (2004) 15 NWLR (Pt. 895) Pg. 90 at 103 and ALI PINDAR KWAJAFFA v. BANK OF THE NORTH LTD (2004) 5 SCNJ Pg. 121. That being so, this issue being a fresh one, in that it was not canvassed in the court below, and as no leave of this court was sought and obtained before it was raised, it cannot be validly entertained.
However, I venture to say that, hearsay evidence has been statutorily defined by Section 37 of the Evidence Act, 2011, while Section 38 of the same Act, makes hearsay evidence inadmissible, save as provided in part IV or by or under any other provision of the Evidence Act or other Act. Thus, Section 37 of the Evidence Act, 2011 stipulates that:
“37. Hearsay means a statement –
(a) oral or written made otherwise than by a witness in a proceeding; or
(b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act which is tendered in evidence for the purpose of proving the truth of the matter stated in it.”
It therefore means that any statement, whether oral or written which is made by a person other than a witness in a proceeding or is contained in a document, book or other record which proof is not admissible by the provisions of the Evidence Act or other Law, will be hearsay, if the purpose is to establish or prove the truth of the matter stated therein. This provision in my view, is a statutory entrenchment of the hearsay rule as propounded by our courts in plethora of cases, starting from the case of SUBRAMANIAM vs. PUBLIC PROSECUTOR (1956) 1 W.L.R. p.965 at 969, where hearsay evidence was described as follows:
“Evidence of a statement made to a person called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.”
It is therefore clear that to determine whether or not a statement made by a witness is hearsay or not, it would be necessary to determine the purpose for which the statement was tendered or given in court. See AROGUNDADE vs. THE STATE (2009) 6 NWLR (Pt.1136) p.165; OLALEKAN vs. STATE (2001) 18 NWLR (Pt.746) P.793; OBINWUNNE vs. TABANSI-OKOYE (2006) 8 NWLR (Pt.981) p.1004. That being so, the statement will only be hearsay if it does not emanate from the person who saw, heard or perceived such evidence, it will be admissible in proof of the truth of that which is stated, and therefore not hearsay. See Sections 125 and 126 of the Evidence Act, 2011. In the instant case, the PW1 stated that the statement was made to him, that the building housing the store in dispute would be demolished for the construction of a Fire Service Station. The witness did not in my view tender the statement as the truth that the building would be demolished. She only stated what was said to her and not to establish the truth or fact of demolition of the building. To that extent therefore the statement of the PW1 complained of is not hearsay.
Contrary to the contention of the appellants, that statement is also not at variance with the pleadings. Furthermore, I agree with learned counsel for the respondent that, the statement of the PW1 that 1st appellant was in the habit of entering her store to renumber it is evidence which could be and was led in support of paragraph 8(a) of the Amendment Statement of Claim. See also paragraphs 10 and 17 of the Amended Statement of Claim.
It is also the submission of the appellants that the learned trial judge misdirected himself when he held that neither Exhibits P, D and Q made reference to No. OW/M/AT.LK/25 and that there is nothing in Exhibit “Q” to show that it was issued by Owerri Local Government; and that Exhibits “P” and “Q” do not support the deposition of DW1 in his paragraphs 6, 7 and 8 of the written deposition on oath. The arguments of both counsel on the issued had been summarized earlier in this judgment. The remark of the learned trail judge is contained at page 111 line 25 page 112 line 3. Therein, the learned trial judge found that:
“The DW1 stated that he constructed the store which contain 10 stores including the one in dispute and they were all allocated to him in different names including that of his son the 2nd defendant. He stated that he entered an oral agreement with the Local Government to construct stores. The defendants tendered Exhibit “P” titled completion of lock-up stores, also tendered Exhibit “Q” building plan. Neither of the Exhibits “P” and “Q” made reference to No. OW/M/AT.LK/25. There is nothing in Exhibit “Q” to show it was issued by Owerri Local Government. Exhibits “P” and “Q” do not support the deposition of the DW1 in paragraphs 6, 7, 8, of his written statement on oath.”
Now, the 1st appellant had deposed in paragraphs 5, 6, 7 and 8 of his written deposition contained at pages 72-74 of the record of appeal as follows:
“5. That I constructed the entire building in which the said store is located.
6. That I did so on behalf of the Owerri Local Government which compensated me by allocating most of the stores allocated therein to me.
7. That the building contains ten stores and all of them belong to me under different names.
8. The stores are as follows: 25A, 25B, 25C, 26, 26A, 27, 28, 29, 30 and 31.
Now, Exhibit “P” which is titled “Completion of Lock-up Stores”, was tendered by the appellants as agreement or rather contract award authorizing him to construct certain stores. I had earlier held when considering issues 1 and 2 that the said Exhibit “P” only granted authority to the 1st appellant to complete the construction of certain lock-up stores. The document does not name any specific lock-up store(s). While Exhibit P stated that the work was to be completed within 14 days from the date of approval, the appellant stated that it took him six (6) months to complete building the stores allocated to him. It is clear that the Exhibit was “authority to complete” certain lock-up stores. It does not purport to be an award for the “construction of the entire building”. If that is so, it is obvious and right to hold, as done by the learned trial judge, that Exhibit “P” does not support the deposition of the 1st appellant. Exhibit “Q” which is said to be the building plan issued to the 1st appellant was not transmitted along with the records, so I was unable to lay my hands on same at the time of writing this judgment. I cannot therefore comment on same.
Based on the above consideration of issues 1, 2, 3, 4, 6 and 7 all the issues have been resolved against the appellants. The result is that, the learned trial judge of the court below properly evaluated the evidence led before him, and rightly came to the conclusion that the Plaintiffs/Respondents proved their case on the standard required of them by law, which is balance of probabilities or preponderance of evidence. In other words, by the evidence on record the balance of the imaginary scale of justice tilted in favour of the Respondents. The learned trial judge was therefore right, when he held that, the Claimants (Respondents) have established that the 1st Claimant (1st Respondent) is the person having legal right of ownership and possession of the store/shed in dispute against the Defendants (Appellants) who have not established such legal rights.
Having thus found the next issue to be determined is whether the sum of Five Hundred Thousand Naira (N500,000:00) general damages awarded the Respondents is proper in the circumstances of this case. This is the 5th issue posited for determination by the Appellants. It was submitted by learned counsel for the Appellants that, general damages refer to that aspect of damages which the law presumes against a tort feasor. He then cited the case of S.B.N. v. C.B.N (2009) 6 NWLR (Pt. 1137) Pg. 237 to submit that, it is awarded in every case where a party has proved his case without insisting that he should prove the quantum of damages to which he is entitled. That, courts have a duty to ensure that they are not excessive or awarded on irrelevant or arbitrary grounds; and that in trespass cases damages are nominal or minimal. According to learned counsel, the court is under a duty to give reasons as to how it arrived at the amount it awarded. The case of ONWUKA v. NKA (1996) 7 NWLR (Pt.458) Pg.1 was cited in support.
Learned Senior Advocate for the Appellant then contended that, in the instant case the court below awarded the sum of N500,000:00 as general damages without giving any reason(s) for the award. That the award was arbitrary and undeserved; and that if the award was because the 1st Defendant was in ‘the habit of entering the store to renumber it and lay claims to it, that allegation is not borne out of the pleadings and therefore wrongly received in evidence as the material facts thereof were not pleaded. He relied on the case of OLOWOFOYEKU v. AG, OYO STATE (1996) 10 NWLR (Pt.477) Pg. 190. If the award is based on the quit notices issued on the Respondents which the court treated as wrongful interferences, it was contended that, it was an award based on psychological or mental considerations, and not a physical thing as the law requires. That there must be evidence of physical contact with the thing trespassed on, and that in this case, there was no evidence that the quit notices were pasted on the store by the Appellants or their agents. It was accordingly submitted by learned counsel that, the issuance of quit notices without more could not translate to trespass, as to attract the award of N500,000:00 made by the trial court. We were then urged to interfere with the award.
Learned counsel for the Respondents on the other hand, submitted that the award of N500,000: out of the Five Million Naira (N5,000,000:00) claimed is not excessive. He referred to the remarks of the learned trial judge at page 115 lines 1 – 9 of the records to submit that the learned trial judge gave reasons for the award of N500,000:00 out of five million general damages claimed. Furthermore, that the learned trial judge recognised that the amount he could award as general damages in the circumstances of the case, is nominal, in recognition of the Respondents’ interest (right) in the lock-up store and not as compensation. He then relied on the case of HANSEATIC INTERNATIONAL LTD v. USANG (2003) FWLR (Pt. 149) Pg. 1563 at 1590, to submit that general damages are implied by law and need not be specifically pleaded and proved by evidence. We were then urged to resolve this issue in favour of the Respondents.
Now, general damages are classified into two (a) that in which the damages may be inferred, such as in cases of defamation, personal injury or trespass; and (b) that in which damages will not be inferred but must be proved such as in damages arising by way of loss of business. In the instant case, the general damages claimed by the respondents is for wrongful interference with the right of Respondents over the lock-up store, by the 1st Appellant. In other words, the general damages claimed were for trespass in the said lock-up store. The evidence led thereon is that, the 1st Appellant was in the habit of entering the store from time to time to renumber the store. It is trite law that in a claim for trespass to land, any slight disturbance to the possession of the land by a person who cannot show a better title or right to possession, will suffice. See SOLOMON & ORS v. MOGAJI & ORS (1987) 11 S.C. Pg.1; EZE v. OBIEFUNA (1995) 6 NWLR (Pt. 404) Pg. 639.

Accordingly, to succeed in a claim for general damages in an action for trespass, the plaintiff need not prove any injury, as damages on such a claim are awarded to the plaintiff even if he suffers no injury from the wrongful act of the defendant. That is why it is said that trespass is actionable per se. However, where there is no actual injury, the damages to be awarded is nominal. See ELOICHIN (NIG) LTD v. MBADIWE (1986) 1 NWLR (Pt. 14) Pg. 47 at 61. The complaint of the Appellants is that the trial court’s award of damages was arbitrary and undeserved.
Now, in the assessment and award of general damages, the learned trial judge held at page 115 of the record of appeal as follows:
“The PW1 stated that the 1st Defendant was in the habit of entering her said store to renumber it and lay claims to it.
The D.W.1 issued her and her son notices to quit the store. The notices are Exhibits “J”, “J1”, “J2″. These constitute wrongful interference with the claimants’ right over the lock-up store.
General damages are implied by law in every violation of the legal right. It need not be specifically pleaded and proved. It is enough if it is generally averred. See case of HANSEATIC INTERNATIONAL LTD v. NARTHAN USANG (2003) FNLR Part 149, 1543 at 1590.
Damages in this case should be nominal to show the court’s recognition of the claimants’ proprietary interest in the lock-up store and not a way of compensating the claimants unless it is claimed as special damages and properly pleaded and proved.”
It is clear therefore, at least to me, from the portion of the judgment quoted above, that the learned trial judge, clearly stated the reason for the award of damages he made. In other words, he appreciated the law on the point and supported same with judicial authorities. I had held elsewhere in this judgment that, the evidence that the 1st Appellant was in the habit of entering the 1st Appellant’s store to renumber same is supported by the Respondents’ pleadings. It is also in evidence that the 1st Appellant or his agents entered the 1st Respondent’s shop to serve her quit notices. Surely, the quit notice could not have been served without entering the shop. I believe those are facts the learned trial judge considered before making the award in the sum of five hundred thousand naira (N500,000:00) out of the five million naira (N5m) claimed by the Respondents. He stated clearly that the award he made is nominal and not as compensation for any loss suffered. It is trite law that general damages are those that the law recognises or presumes to be the direct and natural consequence of the act complained of. They may be described as damages that are awarded without the necessity to prove actual damage. See ESEIGBE v. AGIZOLOR (1993) 9 NWLR (Pt. 316) Pg. 128 at 145 and ROCKONOH PROPERTY CO. LTD v. N.I.T.E.L PLC & ANOR (2001) 10 S.C.M. Pg. 117 at 136. In fact, in the area of assessment of general damages, the proper exercise of judicial discretion is required of the trial court.

It is however the law that, where the trial judge has made an award of general damages, it is not the duty of an appellate court to re-asses the amount of general damages so made, simply because it would have awarded a different amount, if it had determined the matter at first instance. The appellate court would only interfere if it is satisfied, from the evidence on record, that the trial court while assessing the damages applied wrong principles of law or that it took into account irrelevant factors or made an erroneous estimate of the damages. See BALA v. BANKOLE (1986) 3 NWLR (Pt. 27) Pg. 141; OZIGBU ENGR. CO. LTD v. IWUAMADI (2009) 16 NWLR (Pt. 1166) Pg. 44; ADIM N.B.C LTD (2010) 9 NWLR (Pt. 1200) Pg. 543; INT. ILE IND. (NIG) LTD v. ADEREMI (1999) 8 NWLR (Pt. 614) Pg. 268; OKONKWO v. GBOGIE (1996) 5 NWLR (Pt. 449) Pg. 420; A.C.B. LTD v. APUUGO (2001) 5 NWLR (Pt. 707) Pg.483; NWOBOSI v. A.C.B LTD (1995) 6 NWLR (Pt. 404) Pg. 658; LEVENTIS NIG. PLC v. AKPU (2007) 17 NWLR (Pt. 1063) Pg. 416 and PETER v. A.I.G (2001) 7 NWLR (Pt.713) Pg. 602.It is the Appellant who has the burden to demonstrate or show from the evidence on record that the damages awarded was wrong or unmerited. See OMOSAGIE v. OKUTUBO (1969) 2 ALL N.L.R Pg. 175 at 180.
I have observed that the trial court gave reason for the award he made. I have also observed that the trial court satisfactorily appreciated his duty in the assessment of the general damages he made. The Appellants have also not seriously, in my view, discredited the evaluation or the assessment of the general damages made in this case. It has also not been established that the amount awarded is manifestly high or excessive. That being so, the appeal also fails on this ground. Issue 5 is therefore resolved against the Appellants.
Having resolved as above, it is clear that all the issue in this appeal have been resolved against the Appellants. That being so, it means that the appeal has failed in its entirety for lack of merit. The appeal is accordingly dismissed. I therefore affirm the judgment of the court below in Suit No. HOW/332/2005, delivered on the 14th day of May, 2012.
I award thirty thousand naira (N30,000:00) as cost against the Appellants in favour of the Respondents.

JOHN INYANG OKORO, J.C.A.: I was privileged to read in draft the judgment of my learned brother, HARUNA SIMON TSAMMANI, JCA, just delivered. My brother has admirably and commendably dealt with all the salient issues submitted for the determination of this appeal. I am satisfied to adopt both his reasoning and conclusion as mine. I too hold that this appeal is devoid of merit. It is accordingly dismissed by me. I abide by the order as to costs in the lead judgment.

PHILOMENA MBUA EKPE, J.C.A.: The judgment just delivered by my learned brother HARUNA SIMON TSAMMANI, JCA was read by me in draft before today. I agree entirely with his Lordship’s reasoning and conclusions. I too hold that this appeal is unmeritorious and is accordingly dismissed. The judgment of the lower court delivered on the 14th day of May 2012 in Suit No: HOW/332/2005 is affirmed. I abide by my Lord’s order as to costs.

Appearances

J.M.E. Onyenakazi; Esq with J.C. Arisukwu; Esq.For Appellant

AND

U. C. O. Osuji; Esq.For Respondent