EJEZIE ANENE & ORS v. THEOSOPHY THEOCRAT OKOYE (2013)

EJEZIE ANENE & ORS v. THEOSOPHY THEOCRAT OKOYE

(2013)LCN/6424(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of July, 2013

CA/E/159/2009

JUSTICES

MOJEED ADBKUNLE OWOADE Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

1. EJEZIE ANENE
2. GOZIE AGWUCHA
3. DR. B. U. C. AGHAZU
(Defendant through his Attorney Chief Agu Okonkwo ? joined by court order dated 12/6/06) Appellant(s)

AND

THEOSOPHY THEOCRAT OKOYE Respondent(s)

RATIO

WHETHER OR NOT THE COMPETENCE OF AN APPEAL LIES AGAINST A JUDGEMENT DECIDED

An appeal can competently or validly lie only against what a judgment decided. It cannot lie against what was not decided in the judgment appealed against. An appeal on a matter not decided in the judgment is incompetent and must be struck out. Any issue for determination deriving from such ground is incompetent and equally has to be struck out. See SARAKI & ANOR v. KOTOYE (1992) 11/12 SCNJ 26 where the Supreme Court, per Karibi-Whyte, JSC held that the subject matter for determination must be an issue in controversy between the parties. The decision appealed against must have decided the issue… Hence the ground of appeal must ex necessitate be based on such issues in controversy.” See also NIGER CONSTRUCTION CO. LTD. v. OKUGBENI (1987) 4 NWLR (pt. 67) 787 in which it was held that where a ground of appeal cannot be fixed and circumscribed within a particular issue in controversy in the judgment challenged, such ground of appeal cannot justifiably be regarded as related to the decision. A fortiori, no issue for determination can be formulated therefrom.
It is a well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. Grounds of appeal are not formulated in nubibus. They must be in firma terra, namely arise from the judgment. However meritorious the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties. This is the precondition for the vesting of the judicial powers of the Constitution in the courts. PER AGIM, J.C.A.

WHETHER OR NOT FACT IS IN ISSUE ON THE PLEADINGS

It is trite law that a fact is in issue on the pleadings if it is in dispute. See OLUFASOYE v. OLORUNFEMI (1989) 1 NSCC 21 AT 28 EKIMAARE v. EMOHONYON AND EDOSONWAN v. OGBEYFUN (1996) 4 SCNJ 21 AT 29. PER AGIM, J.C.A.

MEANING OF THE WORD “POSSESSION”

The word “possession” has been defined in the above two cases in a general sense. The word is also defined in this general sense by Blacks Law Dictionary (9th edition) at page 1281 as
1.”the fact of having or holding property in ones power, the exercise of dominion over property
2. The right under which one may exercise control over something to the exclusion of all others, the continuing exercise of a claim to the exclusive use of a material object.
3. The detention or use of a physical thing with the intent to hold it as one’s own.
4. Something that a person owns or controls.”
In this general sense the word possession includes the right to possession arising as an incident of ownership and possessory rights or right of possession arising by virtue of the mere actual physical occupation of the land or property.

Possessory rights exist or arise by virtue of the protection the law accords the fact of actual physical occupation of land, even if it is wrongful or adverse. The primary right which such physical occupation confers is the right to exclude others. So a possessor can therefore exclude all those interfering with his possession except the person with a better right to immediate possession. So the word possession includes the right to possession and the actual physical occupation of the land. The holder of the allodial title to land or the holder of the right of occupancy of land which is physically occupied by him has both the right to possession and the right of possession of the land (possession in an all encompassing sense). PER AGIM, J.C.A.

WHETHER OR NOT THE OWNER OF A TITLE TO LAND CAN MAINTAIN AN ACTION IN DAMAGES FOR TRESPASS

The owner of the allodial title to land or the holder of the legal title to the right of occupancy of land may be in actual physical occupation of the land either in person or through an agent. Even if he is not in actual physical occupation of the land, he can by virtue of his right to the possession of the land, maintain an action in damages for trespass in respect of injuries to the reversionary interest of such owner. For this reason he can sue for acts of trespass, which if acquiesced in, would result in loss or gain of an easement. See KALIO & ANOR v. WOLUCHEM (1985) 3 S.C. 109 per Karibi-Whyte JSC. But where he chooses to lease or sub let his right to the immediate possession of the land to a tenant or subtenant and vests actual physical occupation of the land on such tenant or sub tenant, he relinguishes the possessory right to the tenant or sub-tenant, and will cease to have the capacity to bring actions in trespass against persons who trespass on the land during the lawful occupation by the tenant or subtenant except if the trespass is such that affects his reversionary interest in the land. The Supreme Court in OLAGBEMIRO v. AJAGUNGBADE III & ANOR (1990) 5 S.C. (pt 1) 61 held per Bello, CJN that “when a parcel of land, which was trespassed onto, was in lawful exclusive possession of another person, a suit in trespass is not maintainable by its owner who had no right to immediate possession at the time the trespass was committed.” Here the customary owner of the land having made a customary grant of it to Ogbomosho Local Government who now occupy same. The Supreme Court held that since the Customary owner was not in exclusive possession of the land having made a grant of it to the Local Government, he could not maintain an action for damages for trespass committed on the land during the lawful occupation of same by the Local Government. PER AGIM, J.C.A.

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On the 20th October 2008, the Anambra State High Court sitting at Nnewi, per G. E. Ifeakandu, J rendered judgment in suit No. HN/51/2005 in favour of the plaintiff (respondent herein) against the defendants (appellants herein) in the following terms –
1. “The plaintiff is declared the bona fide allottee of stall situate, being and known as Zone 19 No. 308 at the Main Market, Nnewi which was granted to him by the Nnewi North Local Government.
2. N600,000.00 (Six hundred thousand naira) only being general damages for trespass jointly and severally against the defendants.
3. Perpetual injunction restraining the defendants, their servants, agents and or privies from disturbance or further disturbance or from interfering with the plaintiff in his enjoyment of the said stall.”
Dissatisfied with this judgment, the defendants commenced this appeal No. CA/E/159/2009 on 3rd December, 2008 by filing a notice of appeal containing six grounds of appeal. With the leave of this court, the said notice of appeal was subsequently amended. The amended notice of appeal dated 25th April 2012 and filed on 26th April 2012 contains 8 grounds of appeal.
Both parties to this appeal have filed, exchanged and adopted their respective briefs of argument. The briefs of argument filed in this appeal include the appellants brief of argument, the respondent’s brief of argument and the appellants’ reply brief.
The appellants in their brief of argument raised the following issues for determination:
1. Whether the plaintiff who had let the stall in dispute to a tenant can maintain an action in trespass and whether there was evidence that the defendants are trespassers.
2. Whether the learned trial judge was right to hold that posting of the notice on the said stall was the act of trespass.
3. Whether the learned trial judge was right to award the sum of N600,000.00 against the defendants jointly in favour of the plaintiff on the facts and circumstances of this case.
4. Whether the sum of N600,000.00 awarded by the learned trial judge in the circumstance of this case is not excessive and wrong.
5. Whether the learned trial judge was right to hold that extrinsic evidence is inadmissible to show that stall known as Zone 19 No. 308 is also known as stall No. 68 in Block E 27 in Zone 22 Main Market, Nnewi.
6. Whether the learned trial judge was right to hold that the plaintiff is the bona fide allottee of the stall in dispute.
The Respondent in his brief of argument raised the following issues for determination.
1. Whether the Respondent has the locus standi to institute an action for trespass at the court below.
2. Was the lower court not justified to have granted the reliefs contained in the Respondent’s statement of claim?
Considering the judgment, the grounds of appeal, the issues for determination and the arguments thereon, I think that all the issues raised by the parties herein deal with one central issue, that is, whether the reliefs granted the respondent by the trial court in its judgment was justified by the facts before it and the law.
Before I delve into the determination of the merit of this issue, let me deal with a preliminary issue concerning the relationship between ground 5 of the amended notice of appeal, issue No. 5 in the appellant’s brief and the judgment appealed against.
I have noticed that ground five of the amended notice of appeal and issue No. 5 are not based on and are not challenging any part of the judgment of the trial court. The trial court never decided that extrinsic evidence is admissible to show that the market stall known as Zone 19 No. 308 is also known as stall No. 68 in Block E. 27 in Zone 22 Main market Nnewi. The said ground 5 reads that – “The learned trial judge erred in law when it held that extrinsic evidence is admissible to show that stall known as Zone 13 no 134 is also known as stall No. 68 in Block 827 in Zone 22 Main Market Nnewi.”
PARTICULARS OF ERROR
132(1) of Evidence Act provides five classes of exceptions to the general rule of exclusion of extrinsic evidence laid down in the section
1. The defendants pleaded that the number of the stall was changed by the traders for administrative convenience
2. The learned trial judge did not make any finding on this issue
3. The learned trial judge found that the identity of the stall was ascertainable and known to the parties.
4. The plaintiff did not join issues with the defendant on the said renumbering of the stall by traders.
The question raised by issue No. 5 is – “Whether the learned trial judge was right to hold that extrinsic evidence is inadmissible to show that stall known as Zone 19 No. 308 is also known as stall No. 68 in Block E 27 in Zone 22 Main Market, Nnewi.” The decision of the trial court was that extrinsic facts cannot be admitted to show that the sublease property in exhibit J, stall No. 68, block E 27, Zone 22 at Nnewi main market also bears the identification particulars of Zone 19 No. 308 having been so renumbered by traders for administrative convenience. This is clear from the portion of the judgment of the trial court as follows – “The Court therefore agrees with the plaintiff’s counsel that extrinsic facts should not be added to, subtracted from, to contradict the terms of a document or instrument (Exhibit ‘J’) to give it another meaning, I hold therefore that it was not so intended that stall at Zone 19 at No. 308 was meant to be part of Exhibit ‘J’ and that no oral evidence at this stage of litigation should or ought to be allowed to form part of the said Exhibit ‘J’ so as to bring the res – the stall now in dispute i.e. stall Zone 19 No.308, to be part of the Lease Instrument Exhibit ‘J’. Also the Court, having carefully examined the pleadings of the parties. Exhibits ‘B’, ‘C’, ‘D’, ‘E’, ‘F’, ‘G’, ‘GI’, Exhibit ‘J’, & ‘K’ and the submissions by the two Counsel on the “plaintiff’s issue No. 1 that Exhibit ‘J’ has no connection or bearing with the stall at Zone 19 No. 308 as pleaded by the plaintiff which is in dispute in this case”, it is also my view that for the reason(s) earlier on considered the two parties in this suit very well know the stall at Zone 19 No. 308 that is now in dispute which the plaintiff claims. The res or the stall in dispute has no connection with Exhibit ‘J’ the Lease Agreement and I resolve issue No. 1 of the plaintiff, in favour of the plaintiff.”
An appeal can competently or validly lie only against what a judgment decided. It cannot lie against what was not decided in the judgment appealed against. An appeal on a matter not decided in the judgment is incompetent and must be struck out.

Any issue for determination deriving from such ground is incompetent and equally has to be struck out. See SARAKI & ANOR v. KOTOYE (1992) 11/12 SCNJ 26 where the Supreme Court, per Karibi-Whyte, JSC held that the subject matter for determination must be an issue in controversy between the parties. The decision appealed against must have decided the issue… Hence the ground of appeal must ex necessitate be based on such issues in controversy.” See also NIGER CONSTRUCTION CO. LTD. v. OKUGBENI (1987) 4 NWLR (pt. 67) 787 in which it was held that where a ground of appeal cannot be fixed and circumscribed within a particular issue in controversy in the judgment challenged, such ground of appeal cannot justifiably be regarded as related to the decision. A fortiori, no issue for determination can be formulated therefrom.
It is a well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. Grounds of appeal are not formulated in nubibus. They must be in firma terra, namely arise from the judgment. However meritorious the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties. This is the precondition for the vesting of the judicial powers of the Constitution in the courts.
Throughout the judgment of the trial court there was no mention of any stall known as Zone 13 No. 134 or its relationship with stall No. 68, block E 27 in Zone 22 main market Road. I think that appellant may have intended to write Zone 19 No. 308 but mistakenly wrote the above. Assuming it was a mistake, the appellant had an opportunity to correct it when he amended the notice of appeal. They did not and rather compounded the problem by maintaining their allegation in ground 5 that the trial court held that “Extrinsic evidence is admissible” where as the decision is that such evidence was inadmissible to vary the contents of a written agreement. In framing issue 5, the appellants alleged that the trial court held that such evidence was inadmissible contrary to grounds of this appeal. This court has to deal with the said ground 5 of the notice of appeal and the appellants’ issue No. 5 as they stand and cannot assume that they said something different from what they expressly contain.
As it is, the arguments against the decision of the trial court that the suit property is not the same as the property in exhibit J cannot stand on the basis of issue No. 5 of the appellant’s brief. It is trite law that an incompetent issue cannot be a valid basis for any argument in an appeal. The argument of an appeal can only be based on competent and valid issues arising for determination in the appeal.
However, since issue No. 5 was argued together with issue No. 6 and the argument was based on both issues, it can be considered on the basis of issue No. 6 which derives from grounds 6 and 8 of the amended notice of appeal. Having resolved the above preliminary issue, let me now return to the determination of the central issue in this appeal, that is, whether the reliefs granted the respondent by the trial court in its judgment can be justified in law and on the facts before it. The reliefs are three, namely:
1. A declaration that the plaintiff is the bona fide allottee of stall known as Zone 19 No. 308 situate at the Main Market, Nnewi which was granted to him by the Nnewi North Local Government.
2. N600,000.00 being general damages for trespass jointly and severally against the defendants.
3. Perpetual injunction restraining the defendants, then servants, agents and or privies from disturbance or further disturbance or from interfering with the plaintiff in his enjoyment of the said stall.
I will start the determination of the above issue with a clarification of the burden and standard of proof on each party to the case at the trial. It was the respondent as plaintiff that commenced the suit at the trial court claiming for the said reliefs. The defendants filed no counter-claim. The 1st and 2nd defendants filed a statement of defence but led no evidence in defence. The 3rd appellant filed a statement of defence to the suit and led evidence in defence. It was the respondent as plaintiff that desired the trial court to grant him the reliefs claimed on the basis of the existence of the facts that Nnewi North Local government allotted him a stall identified as Zone 19 No 308 main market Nnewi which he built, let out to a tenant who was and still is now occupying same, the defendants have trespassed thereon and continue doing so. Therefore he has the legal burden to prove the existence of the said facts by virtue of Ss.131, 132 and 133(1) of the 2011 Evidence Act. It is implicit in these provisions that he has to discharge this burden on the basis of the strength of his case. Where he fails to do so, the weakness of the defence or absence of a defence will not help him. S.134 of the said 2011 Evidence Act requires that this burden of proof be discharged on the balance of probabilities.
The defence of the appellants (defendants) is that it is the 3rd appellant that has the valid legal title to the right to occupy the stall in dispute because the respondents allotment was not perfected or formalized by him as required by the allocation slip (exhibit D) and therefore stood forfeited, that he had the valid legal title to the stall because the subsequent allotment of the same stall by Enugu North Local government to him was formalized by a deed of sub-lease, which was duly executed, registered and the necessary statutory consent thereto obtained. The appellants further contended that at best the respondent had an equitable title which had become overtaken by the superior legal title of the 3rd appellant. It was also part of the appellant’s defence that the proper identifying particulars of the stall is No. 68, block E 27 Zone 22 and not Zone 19 No. 308 and that it was the traders in the market who renamed it Zone 19 No. 308 for the administrative convenience of collecting security levies and that they did not trespass into the stall in question.
Once the respondent proved his case on a balance of probabilities the evidential burden shifts and vests on the appellants as defendants to prove on a balance of probabilities the existence of the facts forming the basis of their defence. This is so by virture of S.133 (2) of the 2011 Evidence Act.
I will now consider if each party discharged his or their burden of proof of the existence of the facts upon which his or their claim or defence is based. Let me start with the respondent as plaintiff. The evidence led by the plaintiff in support of his statement of claim establish, and the appellants concede that
1. Enugu North Local Government by exhibit D (allocation slip) allocated one stall at Zone 19 No. 308 in the Nnewi Main Market to the respondent
2. The respondent did not comply with the requirement stated in exhibit D as follows- “Please come and formalize your allocation with the committee on or before 31st January 2001 and wait finally for the issuance of C of O or the allocation stands forfeited at the expiration of the date line.” The allocation was not formalized.
3. The respondent built the stall and let same to PW2 who was occupying same and paying rents therefore as tenant of the respondent since January 2004 till date.
4. Nnewi North Local Government issued a Work Order/Permit dated 26-3-2001 (exhibit E herein) authorizing the respondent to build the stall. The work Order/Permit states thus- “I am directed to permit you by this Order to carry out some construction work at the Nnewi Main Market on the market stall with the following particulars: Number 308 Zone 19. This however must be carried out with the specifications and supervision of the Town Engineer and/or his representative.”
The respondent’s claim for a declaration that he is the bona fide allottee of the stall known as Zone 19 No. 308 at Nnewi Main Market is founded on the above evidence. The 1st and 2nd appellants led no evidence at all in this case. It was the 3rd appellant who led evidence to defend the above claim of the respondent. The evidence he led through DW1 in support of his statement of defence was that –
1. By deed of sub-lease, Nnewi North Local government allocated to him stall No. 68 in block E 21 in Zone 22 shown in the Master Plan of Nnewi main market (plan No. Misc (AS) 48) of 20th March 2001 attached to the sublease. The deed of sub-lease dated 30th October 2001 is exhibit J and the said master plan attached to it is exhibit K.
2. 3rd appellant donated power of attorney to DW1 to defend the suit on his behalf. The power of attorney date d 2nd May 2006, is in evidence as exhibit H. It states DW1 is to manage and superintend the management of the stall No. 68 block E 27 Zone 22 Nkwo main market also known as Zone 19 No. 308.”
Zone 19 No 308 was made by the traders at “Nkwo Nnewi” for collection of security fees around 2002.
The respondent has been in occupation of the stall in dispute from 2001 to 2008.
The 3rd appellant’s defence that respondent was not the bona-fide allotee of the stall in dispute was founded on the facts contained in the above evidence.
The trial court after a proper review and evaluation of the evidence on both sides held that-
1. Stall No. 68 Block E 27 Zone 22 in exhibit J is not the same as the stall known as Zone 19 No. 308 allocated to the respondent as per exhibit D and that exhibit J is not connected and has no relationship with the Stall at Zone 19 No. 308.
2. Stall in Zone 19 No. 308 was duly allocated to the respondent who had continuously possessed same and paying stallage fees therefore to Nnewi North Local government and that there is no evidence that such allocation had been revoked.
3. While the plaintiff has his subsisting equitable interest in stall at Zone 19 No. 308, the 3rd defendant has his legal interest and title in exhibit J which he is yet to take possession as soon as he properly locates same without gambling.”
The trial court after finding that the respondent was duly allotted the stall, he constructed same, he has been paying stallage fees therefore to Nnewi North Local Government and did put in a tenant who has been paying him rent, held that the respondent had proved his claim for a declaration that he was the bona fide allottee of the said stall by a preponderance of evidence.
Learned counsel for the appellants has argued that the trial court was wrong to have held that the respondent was the bona fide owner of the said stall. The grounds for this argument are as follows-
(a) It was wrong for the trial court to have considered the issue of whether the stall at Zone 19 No. 308 is the same as stall No. 68 block E 27 Zone 22 because the respondent did not deny paragraph 2 of the 3rd appellant’s statement of defence alleging this fact and thereby admitted it and so no issue was joined on it.
(b) The trial court was wrong to have refused to consider evidence outside exhibit J to show that stall at Zone 19 number 308 is another name or identifying particulars for the stall, the subject of exhibit J the sublease.
(c) There is no evidence that the respondent’s interest in stall at Zone 19 No. 308 was first in time to that of the 3rd appellant.
(d) The trial court did not make any finding concerning the renumbering of the stall and did not state whether it believed or disbelieved DW1 that the stall was renumbered.
Learned counsel for the respondent has submitted replicando that-
(a) paragraph 2 of the reply to the statement of defence denied paragraph 3 of the appellant’s statement of defence and therefore issues were joined on the renumbering of the stall in dispute.
(b) By virtue of S.132 (1) of the Evidence Act oral evidence cannot be admitted to contradict or vary the content of a written document.
So DW1’s evidence to show that stall known as No. 68 Block E 27 Zone 22 in exhibit J also refers to or is the same as stall at Zone 19 No. 308 main market in exhibit J also is the same as main market Nnewi, was not admissible.
(c) The finding of the trial court that the allocation of the stall to the respondent was earlier in time than the sublease in exhibit J is supported by exhibit E and J and is therefore right.
(d) The court disbelieved DW1’s testimony that stall at 19 number 308 also bears No. 68 Block E 27 Zone 22.
Let me consider the arguments of both sides as to whether Stall No. 68 Block E 27 Zone 22 in exhibit J was renumbered as Zone 19 No. 308 by the traders for the administrative convenience of collecting security levies. The respondent in paragraph 3 of the statement of claim identified the suit stall thus – “the stall known, situate and lying at No 308, main market, Nnewi.”
The 1st and 2nd appellants in response to this averment stated in paragraph 3 of their statement of defence concerning the identity of the suit stall thus “the stall known as No 68 Block E 27 Zone 22 Nkwo Main Market and also numbered Zone 19 No 308 by traders for administrative convenience…” The 3rd appellant in his statement of defence avers that – “the stall No. 68 Block E 27 Zone 22 which is also numbered Zone 19 No 308 Nkwo main market…”
The respondent in paragraph 2 of his reply to the statement of defence replied to the above mentioned paragraphs of the appellants respective statements of defence thus -“The plaintiff vehemently deny paragraph 3 of the 1st and 2nd Defendants statement of defence and paragraph 2 of the 3rd defendant’s statement of defence and state that the defendants are merely speaking as a result of irremediable hallucination. The plaintiff is the bona fide and beneficial allotee of the stall known, situate and lying at Zone 19 No. 308 Main Market Nnewi.”
It is clear from these pleadings that both sides joined issues on whether the stall was No. 68 Block 827 Zone 22 and renumbered as Zone 19 No. 308 or is just Zone 19 No. 308 and whether it is at Nkwo main market or Nnewi main market. I do not agree with the argument of Learned counsel for the appellants that paragraph 2 of the respondent’s reply to the statement of defence did not deny the numbering but merely joined issues on ownership. Issues were joined on the number and location of the stall even before the reply was filed. The said paragraph 2 merely emphasized it. The respondent therein restated the number of the stall as Zone 19 No. 308 at Nnewi Main Market. After generally denying the averments in paragraph 2 of the 3rd appellant’s statement of defence and paragraph 3 of the 1st and 2nd appellant’s statement of defence, paragraph 2 of the reply denied by necessary implication paragraph 3 of the 1st and 2nd appellants’ statement of defence that traders renumbered the stall for administrative convenience to collect security levies. It did this by restating the number and location of the stall. The respondent in his statement of claim averred that the stall is located at Nnewi main market. The appellants in their statements of defence aver that it is located at Nkwo main market. The identity of the stall was clearly in dispute on the pleadings and as such was in issue. It is trite law that a fact is in issue on the pleadings if it is in dispute. See OLUFASOYE v. OLORUNFEMI (1989) 1 NSCC 21 AT 28 EKIMAARE v. EMOHONYON AND EDOSONWAN v. OGBEYFUN (1996) 4 SCNJ 21 AT 29.Since both sides joined issues on the identity and location of the stall, the trial court was bound to determine it. It therefore was right to have considered the issue of the number and location of the suit stall.
Let me now consider the argument that the trial court was wrong to have relied on S.132 (1) of the Evidence Act and refused to admit or consider the oral evidence of DW1 or other evidence to show that the stall subleased was subsequently renumbered by traders in the market as Zone 19 No. 308. Learned counsel for the appellant has argued that “Under cross examination the DW1 explained how the number Zone 19 No. 308 Nkwo Main Market also came to be number of the stall. The learned trial judge did not make any finding on this piece of evidence or state anywhere in the judgment that she does not believe or accept the explanation proffered by the said witness on the numbering instead she held that extrinsic evidence is inadmissible to add or alter the contents of a written document to wit: Exhibit J and accordingly held that Exhibit “J” does not relate to the stall in dispute. This is wrong, more so when the parties did not join issues on the numbering or the stall being known by another number. The said evidence also did not alter or add but it merely explained a latter event.”
Firstly, let me express my agreement with the submission of Learned Counsel for the respondent that the trial court in its judgment at page 129 of the record of this appeal expressly stated that it disbelieved DW1 that stall No. 68 Block 27 Zone 22 was also numbered as Zone 19 number 308.
Therefore the above argument of learned counsel that the trial court did not state whether it believed or disbelieved DW1 on the numbering of the stall is not correct. Secondly, the trial court did hold in its judgment that the stall at Zone 19 No. 308 is not mentioned in exhibit J and is not connected to it and “that while the plaintiff has his subsisting equitable interest in stall at Zone 19 No. 308, the 3rd defendant has his legal interest and title in exhibit J which he is yet to take possession of as soon as he properly locates same without gambling.” The trial court having held that the stall at Zone 19 No 308 is distinct from the stall subleased in exhibit J and stated that it disbelieved DW1 that the stall was renumbered, the argument that it made no finding of fact on the numbering become meaningless.
Even though the trial court held that the oral evidence of DW1 as extrinsic facts should not be allowed to vary the terms of exhibit J “so as to bring the res-the stall now in dispute i.e. stall at Zone 19 No 308 to be part of the Lease instrument exhibit J”, it still went ahead to disbelieve the said testimony of DW1 that the stall was renumbered. The trial court’s decision to disbelieve DW1’s testimony shows that the said evidence was not disregarded but was considered by the trial court in determining the issues in dispute. Therefore the complain that the trial court refused to admit or consider DW1’s evidence that stall No. 68 Block E. 27 Zone 22 in exhibit J was subsequently renumbered by traders becomes unnecessary.
The trial courts disbelief of DW1’s testimony of the said renumbering of the stall is justified by the evidence. All sides agree that Nnewi North Local government has the certificate of occupancy of the said stall and is therefore the holder of the legal title to the right of occupancy of same. The traders in the market are not the owners of the stall. Enugu North Local Government as the owner of the stall should know more than anybody else the identification particulars and location of the stall and is therefore in the best position to say which stall it sublet to which person. The pleading and the evidence of the appellants that the stall is known as No 68 block E. 27 Zone 22 at Nkwo main market and was subsequently renamed by traders in the market as Zone 19 No 308 implies that the stall is not known to Nnewi North Local Government as Zone 19 No. 308. In other words Nnewi North Local Government did not give it such number, it was the traders that did.
The DW1 in his testimony under cross-examination said the number Zone 19 No 308 was given by the traders around 2002. Learned Counsel for the appellants have argued that the said numbering by the traders was done subsequent to exhibit J. But exhibits D and E show that it was Nnewi North Local Government that gave the stall in dispute the number Zone 19 No. 308 long before the exhibit J came into existence, Exhibit D, even though not dated, directs therein that the allocation of the stall Zone 19 No. 308 Nnewi main market to the respondent be formalized before 31st January 2001. This shows that the allocation therein was made before 31st January 2001.
Exhibit E dated 26 March 2001 permits the respondent to construct stall at Zone 19 No. 308 at Nnewi main market, Exhibits D and E were issued by Nnewi North Local Government. Exhibit J is dated and made on 30th October 2001. It is a sublease by Nnewi North Local Government of a stall No. 68 block E 21 in Zone 22 at Nkwo Nnewi Market to 3rd appellant. As at 30th October 2001, the said Local Government knew a stall it numbered as Zone 19 No. 308 had been allocated to the respondent. It was certain and clear as to which stall it was subletting to by that date to the 3rd appellant. The stall is identified in exhibit J as No. 68 block E. 27 Zone 22 at Nkwo Nnewi market. Exhibit D, E and J clearly show that the trial court was right in disbelieving the evidence of DW1 that traders renumbered stall No. 68 block E 27 Zone 22 at Nkwo Nnewi market as Zone 19 No 308. It believed the evidence of PW1, the then Chairman of Nnewi North Local Government that allocated the stall in exhibit D. The trial court held that “p. 124.” Exhibits D, E and F also show that the trial court was right to have held that there is no relationship between stall No. 308 Zone 19 Nnewi Main Market and stall in exhibit J. Both sides agree that the respondent not having formalized the allocation as required by exhibit D only had an equitable right to occupy the stall. The trial court held that the respondent had a subsisting equitable interest in the said stall No. 308 at Zone 19 of Nnewi market Road. Exhibit D directed that the respondent formalize the allocation by 31st January 2001 and await the final issuance of the certificate of occupancy or the allocation will stand forfeited after the said 31st January 2001. The respondent failed to formalize the allocation after the expiration of the said dateline. Yet the Nnewi Local Government did not treat the allocation as forfeited and continued to treat the respondent as the allotee of the stall No. 308 Zone 19 Nnewi main market Road. On 26th March 200I it issued respondent a work order/permit (exhibit E) to carry out construction of the said stall. Pursuant to exhibit E, the respondent went ahead constructed the stall and let it out to a tenant in consideration for payment of rent. Nnewi Local Government has continued to collect stallage fees from the respondent as the allotee of the said stall. Exhibit G is a general receipt form issued by Nnewi North Local Government on 3rd March 2004 acknowledging the receipt of N3600 from the respondent as 2002-2004 stallages fees for stall No. 308 Zone 19 at Nnewi main market. Exhibit G1 dated 31st February 2005 is a similar receipt for 2005 stallage fees for the said stall. PW2 occupies the stall till date as the tenant of the respondent by virtue of Exhibits E, G and G1. The allocation of stall No. 308 Zone 19 Nnewi Main Market by Nnewi North Local Government to the respondent remained subsisting and vesting a subsisting equitable right in him to continue to occupy same.
In the light of the foregoing I hold that the trial court was right to have declared that the respondent is the bona fide allottee of stall No. 308 Zone 19 at Nnewi main market.
I will now consider if the trial court was right to have awarded the respondent N600,000 as general damages for trespass against the appellants.
In this respect the Learned Counsel for the appellants argued under its issues Nos 1, 2, 3 and 4 that-
(a)Since the respondent was not in possession of the stall having let it out to a tenant (PW2) who was at the material time occupying same, he had no locus standi to bring a claim for trespass to the stall.
(b) Whereas the respondent pleaded that the 1st appellant dropped a note for the respondent’s tenant to come and see him, the evidence led by the respondent is that the note was posted on the wall of the stall. It was therefore wrong for the trial court to rely on evidence that is at variance in the pleading to find that trespass was committed by the pasting of the notice on the wall of the stall.
(c) The trial court ought to have made specific finding on who committed the alleged trespass and was wrong to have found all the appellants liable for trespass. When no case of trespass was made against them (particularly the 1st and 3rd appellants)
(d) The sum of N600,000 awarded as general damages for trespass constituted by the pasting of a note on the wall of the stall is excessive and arbitrary.”
Learned Counsel for the respondent has argued in reply that –
(a) The respondent was in possession of the stall through his tenant (PW2).
(b) The evidence that the 2nd appellant pasted the note on the wall of the stall is consistent with the averment in paragraph 7 of the statement of claim that the 2nd appellant dropped note for the respondents tenant to come and see him.
(c) It is conceded that there is no claim against the 3rd appellant and so the award of damages against the 3rd appellant is wrong. The evidence established a case of trespass against 1st and 2nd appellants. The pleadings and evidence that the 1st and 2nd appellants severally visited the stall and threatened the respondent’s tenant is not denied. The evidence that the 2nd appellant pasted the note on the wall of the stall is not denied.
The trial court was right to find them liable for trespass.
(d) Damages for trespass can be awarded even where no actual damages is proved. Award of such damages is at the discretion of the court. The award of N600,000 as general damages is not excessive in view of the decline in the value of the naira.
Let me start with the question of whether the respondent had the locus standi to bring or maintain the claim for damages for trespass. The determination of this question obviously depends on the determination of another question, whether the respondent was in possession of the stall and was by virtue of such possession capable of claiming for damages for trespass on the stall?
The trial court held that the respondent “is in possession of the stall at Zone 19 No. 308 through his tenant who pays rent to him.” Learned Counsel for the respondent, for his argument that the respondent possessed the stall through his tenant relied on the definition of possession by two Supreme Court decisions. The first one is ABIOYE v. YAKUBU (1991) 5 NWLR (PT 190) 130, wherein the court held that “Possession” as defined in words and phrases Vol. 4 page 152 includes receipt of rents and profits or the right to receive the same if any (Law of Property Act 1922; Section 188(3); Administration of Estate Act 1925; S.55(1). According to the Learned Authors of words and Phrases at page 152 or Vol. 4: “Possession” as enjoyed by the owner of a house, property or estate may mean either the user of it by someone else who is a subtenant; the rents and profit being received by the Owner; or it may equally mean that the user may be exercised by the owner in whole or in part and in lieu of or in addition to mere receipt of profits Martins Co. Ltd. v. Watt & Hunter (1925) N.I. 79, per Moore, L.J. at page 85).”
The second is MAGAJI & ORS v. CADBURY FRY (EXPORT) LTD (1972) A NLR 84 at 90 wherein the court held that “Possession of a parcel of land means the occupation or physical control of the land either personally or through an agent or servant. As stated by Lord Fitzgerald in Lord Advocate v. Young (1887) 12 App. Cap. 544 at page 556, by possession is meant possession of that character of which the thing possessed is capable. Thus, if a person adduced evidence that he or his agents or servants were cultivating a farmland that would be evidence sufficient to establish that he was in possession of the land. Similarly, if a person erects on a parcel of land a signboard bearing his name, he thereby gives notice to all and sundry that he is in possession of that land.”
The word “possession” has been defined in the above two cases in a general sense. The word is also defined in this general sense by Blacks Law Dictionary (9th edition) at page 1281 as
1.”the fact of having or holding property in ones power, the exercise of dominion over property
2. The right under which one may exercise control over something to the exclusion of all others, the continuing exercise of a claim to the exclusive use of a material object.
3. The detention or use of a physical thing with the intent to hold it as one’s own.
4. Something that a person owns or controls.”
In this general sense the word possession includes the right to possession arising as an incident of ownership and possessory rights or right of possession arising by virtue of the mere actual physical occupation of the land or property.

In OKOLO v. UZOKA (1978) 4 S.C. (Reprint) 53 the Supreme Court per Fatayi-Williams (as he then was) held that a tenant in occupation can sue but not the landlord except in cases of injury to the reversion. Where the trespass has caused a permanent injury to the land affecting the value of the inheritance, then he may sue for injury to his interest instead of waiting until his future estate falls into possession. But for a bare trespass even though committed under a claim of right of way, he cannot sue.
In the light of the foregoing, I hold that the trial court was wrong to have held that the respondent is in possession of the stall No. 308 Zone 19 Nnewi main market through his tenant. The respondent has sublet his right to the possession of the stall and delivered actual physical occupation of same to his tenant, PW2 who is in exclusive possession of the stall. The alleged acts of trespass of 1st and 2nd appellants were committed during the lawful actual physical occupation of the stall by the respondent’s tenant. I therefore agree with the submission of Learned Counsel for the appellants that the respondent had no locus standi to sue the appellants for damages for trespass and injunction on account of the trespass, on acts committed on the stall while it was under the physical possession of the respondent’s tenant (PW2). In EKPAN v. UYO (1986) 3 NWLR 63, a third party was a lawful tenant of the plaintiffs on a land in the exclusive occupation of the said third party. It was held that the plaintiffs not being in possession of the land lacked the locus standi to sue in respect of a trespassory act committed on the land in the lawful exclusive occupation of the tenant. Where, as in this case, the plaintiff lacked the locus standi to bring the action, the court has no jurisdiction to entertain such action. See RTEAN v. NURTW (1992) 2 NWLR 381 AT 391, OGUNSANYA v. DADA (1992) 4 SCNJ 162 AT 168, OLORIODE v. OYEBI (1984) 5 S.C. 1 AND ADESOKAN v. ADETUNJI (1992) 6 SCNJ 1 (PT 1) 123 AT 146. The claim for damages for trespass on the market stall was incompetent as the respondent lack locus standi to bring the claim. The trial court therefore lacked the jurisdiction to entertain and determine such claim.
For this reason I hold that the exercise of jurisdiction to try that claim was a nullity. Accordingly, the decision of the trial court awarding the sum of N600,000 as general damages for trespass is hereby declared a nullity and is accordingly set aside. Having held as above, it shall serve no useful purpose considering the other arguments against the award of the general damages for trespass.
It is beyond dispute that the relief of injunction was meant to restrain further trespass on the stall. Having held that the respondent lacked the locus standi to sue in respect of the trespass on the stall and that therefore the trial court lacked the jurisdiction to try the claim in respect of the trespass on the stall, the grant of the injunction to restrain the trespass cannot stand. It is accordingly hereby set aside.
On the whole, the appeal against the declaration that the respondent is the bona fide allottee of stall No. 308 Zone 19 at Nnewi main market fails and is accordingly dismissed. The appeal against the award of the sum of N600,000 general damages for trespass on the said stall and injunction to restrain the appellants from further interfering with the respondent’s enjoyment of the stall succeeds.
On the whole this appeal succeeds in part. The declaration that the respondent is the bona fide allotee of the market stall, Zone 19 No. 308 at Main Market Nnewi is upheld. The award of N600,000 general damages and the order of injunction against the appellant is hereby set aside.
I make no Order as to costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

ISAIAH OLUFEMI AKEJU, J.C.A.: I agree entirely with the reasoning and conclusion of my learned brother, Emmanuel Akomaye Agim, JCA and I allow the appeal in part. I abide by the consequential orders by my learned brother.

Appearances

Chief G. Oseloka OsigweFor Appellant

AND

Ike Obeta Esq.For Respondent