MRS BIBIAN NGOZI ONYIA v. MR. OBIORA MBIKO & ANOR
(2014)LCN/7141(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of April, 2014
CA/E/262/2010
RATIO
WHETHER A COURT HAS THE POWER TO REFUSE TO CONSIDER EVIDENCE TENDERED BEFORE IT
A court has a mandatory duty to consider and evaluate all evidence elicited by all parties in a case before it in arriving at any decision in the case. See MOGAJI & ORS V. ODOFIN & ORS (1978) 4 SC (REPRINT) 53 AT 65 and ADAMU v. STATE (1991) 6 SC 17. It has no power to ignore or refuse to consider any evidence before it in arriving at any decision. To refuse to consider any evidence or its probative value amounts to lack of evaluation of that evidence and unfair adjudication. As the Supreme Court held in OSISAODU & ANOR v. ELEWUJU & ANOR (2006)13 NWLR (PT. 998) 517. It is the totality of the evidence that has to be evaluated and assessed together. The trial court cannot pick and choose the evidence to be assessed. Per EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
MRS BIBIAN NGOZI ONYIA Appellant(s)
AND
1. MR. OBIORA MBIKO
2. OZO DR AUSTIN NDIGWE Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On the 28-3-2008, the appellant herein, as plaintiff commenced suit No. A/82/08 against the 1st respondent by filing a writ of summons, accompanied by a statement of claim, statement on oath of the appellant and a list of documents and the documents to be relied on by the appellant. The 1st respondent then filed his statement of defence, accompanied by his deposition on oath and list of witness. The appellant filed a reply to the statement of defence, list of witnesses, statements on oath of herself and her witness, Engr. Frank Muobike and another list of exhibits and further documents to be relied on.
On 4-4-2008, the appellant by a motion on notice, applied for an order that the 2nd respondent be joined as defendant in the suit. This application was granted and the 2nd respondent was joined. The statement of claim was accordingly amended to reflect the joinder. The 2nd defendant on 4-5-2009 filed his statement of defence accompanied by a list of witnesses and his written deposition.
At the trial, the appellant and Engr. Frank Muobike testified for the appellant as PW1 PW2. The 1st defendant testified as DW1. The 2nd defendant did not testify as a witness. After the close of evidence and following the adoption of the written addresses of Counsel to both sides, the trial court on the 26-7-2010 rendered judgment, holding that the appellant failed to prove her case, dismissing same and awarding cost of N20,000.00 in favour of the respondents.
Dissatisfied with this judgment, the appellant on 27-7-2010 commenced this appeal No. CA/E/262/10 by filing a notice of appeal containing one ground of appeal.
Both sides to this appeal have filed, exchanged and adopted their briefs of argument. The briefs of argument include the appellant’s brief of argument, respondent’s brief of argument and appellant’s reply brief.
The appellant’s brief of argument raised one issue for determination as follows- “whether the plaintiff proved her claims on the preponderance of evidence adduced at the trial of this case.” The respondents in their brief adopted this issue for determination. Learned Counsel for the appellant has argued that the appellant proved her claim on a preponderance of evidence in that the evidence shows that she duly acquired and was allocated the lockup stalls by Awka South Local Government and is the owner of the right to occupy the said stalls. Learned Counsel pointed out that the 2nd respondent did not attend court through out the trial proceedings in this case and did not testify in support of his statement of defence and written statement on oath and urged this court to discountenance the said statement of defence and written statement on oath. Learned Counsel for the appellant also pointed out that the 1st respondent who testified in court did not produce the papers from Awka South Local Government allocating the 2nd respondent the stalls occupied by them, any evidence of payment of stallage fees to Awka South Local Government for the stalls they occupy and that the 1st respondent was unable to state the names of the persons he leased the stalls to. Learned Counsel then submitted that the failure of the respondents to produce evidence of the allocation of the said stalls to the 2nd respondent, evidence of payment of stallage fees for the stalls and evidence of any contract enabling the 2nd respondent to construct the said stalls occupied by him, means that such documents do not exist or that if they are produced they will be unfavourable to the case of the respondents and also means that the stalls occupied by them are not different from stalls No. PJO/1 and PJO/2, the subject of the suit at the trial court. Learned Counsel further submitted that a proper evaluation of the evidence shows that the appellant is the owner and occupier of stalls Nos PJO/1 and PJO/2, that the four stalls the respondents occupied are mere portions of stalls Nos PJO/1 and PJO/2 occasioned by the unlawful acts of the respondents in entering the stalls without the consent of the appellant. According to Learned Counsel, this is the reason why the respondents could not produce the allocation papers issued to the 2nd respondents by Awka South Local Government in respect of the stalls occupied by him, and that it is also the reason he could not remember the identification numbers of the four stalls he leased to tenants whom he issued receipts for the rents they paid in respect thereof.
Another argument of Learned Counsel for the appellant is that the trial court was wrong to have held that the failure of the appellant to call Awka South Local Government as a witness was fatal to his case. According to Learned counsel, the appellant had no more need to call Awka south Local Government as a witness because exhibits C, D, F1, F2, G1 and G2 are the acts and deeds of the said Awka South Local Government in respect of stalls Nos PJO/1 and PJO/2 and the respondents did not in any way impugn or challenge the genuineness and or authenticity of these exhibits. Learned Counsel urged this court to accept that on the balance of probability, the evidence of the appellant show that she is the owner and occupier of lock up stalls PJO/1 and PJO/2 which were partitioned into four stalls without her consent and occupied by the respondents who put in rent paying tenants.
Learned counsel for the respondent argued in reply that the appellant did not discharge the onus placed on her by virtue of Ss. 135(1) & (2), 136 & 137(1) & 2 of the Evidence Act. Learned Counsel argued that the appellant had never been in possession of the stalls allocated to her and therefore cannot claim to be the owner and occupier of the said stalls. Learned counsel also submitted that the fact that Ocean Gate International limited constructed the stalls in dispute in pursuance of a contract with Awka South Local Government to construct market stalls in Eke Awka market 6 given in evidence by DW2 was not pleaded in the appellant’s pleadings and therefore go to no issue and should be expunged from the evidence on record. The Learned counsel further submitted that Awka South Local Government is a necessary party to the case and that failure to join Awka South Local Government as a party or call her as a witness or call the original allottees of the said stalls as witnesses was fatal to the case of the appellant. He finally submitted that the appellant as plaintiff can only succeed on the strength of his case and not on the weakness of the defence and that the appellant does not have a good case, has no credible witness and should not therefore succeed here, just as she did not at the trial court. He then urged that this appeal be dismissed.
Learned counsel for the appellant in the appellant’s reply brief argued that-
(i) by virtue of exhibits C and D, the certificates of Transfer of allocation of the right of occupancy of the stalls, the appellant was in constructive possession of the stalls.
(ii) It is not correct that the construction of market stalls including those in dispute in this case by Ocean Gate International limited was not pleaded by the appellant. It was pleaded in paragraphs 1 and 5(b) of the plaintiff’s Reply to the 2nd defendant’s statement of defence.
(iii) Failure to call Awka South Local government or the original allottees of the stalls as witnesses is not fatal to the appellant’s case.
(iv) Awka South Local Government is not a necessary party to the suit merely because it owns the stalls and issued exhibits C and D transferring the allocation and the right to occupy the stalls to the appellant.
Three sub-issues arise for determination from the above arguments of learned counsel to both sides as follows-
1. whether the preponderance of evidence showed that the appellant was the owner of the right of occupancy of stalls Nos. PJO/1 and PJO/2
2. whether stalls PJO/1 and PJO/2 and the stalls occupied by the respondents at Eke Awka Park Market 6 are the same.
3. whether the failure to join Awka South Local Government as a party in the suit was fatal to the appellant’s case.
The first sub-issue deals with the part of the judgment of the trial court as follows- “I am of the view that Awka South Local Government are in a position to give evidence as to the stalls allocated to the plaintiff, to settle the issue of allocation of the stalls which is in issue. I do not agree with the plaintiffs counsel submission in his written address that the evidence of PW1 supported the case of the plaintiff on the prerequisite for owning a lock-up stall. The prerequisite for owning a lock-up stall in Awka South Local Government cannot take the place of proof that the stalls were allocated to her. The vital witness who could have in one way or the other settled the issue of the allocation of stalls PWO/1 and PWO/2 which is in issue in this case is the Awka South Local Government which the plaintiff failed to call to testify. It is within her knowledge why she failed to call the owners of the stalls who issued exhibits C and D. The PWII is the contractor and did not pass ownership to the plaintiff. The Awka South Local Government who allotted the stalls PJO/1 and the PW1 is the contractor who contracted (sic) the stores, allocated same to the original owner, but he is not a staff or authority of the Local Government who transferred ownership by Exhibit C and D from the original owners to the plaintiff on record. I cannot therefore rely on the evidence of PW1 as corroboration that the stalls PJO/1 and PJO/2 were allocated to the plaintiff.”
It is glaring from this portion of the judgment that the trial court took the view that the failure to call officials of Awka South Local Government to testify that it allocated stalls Nos PJO/1 and PJO/2 to the appellant rendered the evidence elicited by the appellant insufficient to prove that the said Local Government allocated the said stalls to her. I do not think that the above part of the judgment of the trial court and the argument of Learned Counsel in this appeal supporting same are correct in view of exhibits C, D, F1, F2, G1 and G2.
Exhibit C is a letter dated 26-7-2007 with reference No ALG/AD/102/S.1/T/ from Awka South Local Government to the appellant. It states that – “I wish to refer to you joint application on the above subject matter in which you requested that lock-up stall No. PJO/1 previously held by Chibuike Emos be reallocated to you and inform you that application has been granted. You will pay the change of ownership fee N500.00 (Five Hundred Naira) as well as the monthly stallage fee of N200. You are also expected to be current in Capitation Rate Payment and abide by all other regulations made for the orderly use of market. The Market Superintendent and the Accountant are by this letter advised to update their records accordingly.”
Exhibit D is a similar letter dated 26-7-2007 with reference No ALG/AD/102/S.1/T/ from Awka South Local Government to the appellant it states that – ” I wish to refer to you joint application on the above subject matter in which you requested that lock-up stall No. PJO/2 previously held by Arinze Uzodima be reallocated to you and inform you that application has been granted. You will pay the change of ownership fee N500.00 (Five Hundred Naira) as well as the monthly stallage fee of N200. You are also expected to be current in Capitation Rate Payment and abide by all other regulations made for the orderly use of market. The Market Superintendent and the Accountant are by this letter advised to update their records accordingly.”
These exhibits constitute the root of the appellant’s title to the ownership of the right to occupy the said stalls. The authenticity and genuineness of the said exhibits were not challenged by the respondent and so were not in dispute at the trial.
It is obvious that the respondent was served with copies of these exhibits along with the appellant’s statement of claim and written statement on oath before they filed their respective statements of defence. So they were in a position to challenge the authenticity of the documents if they wanted to. They did not challenge the authenticity of the documents in their statements of defence. The appellant had in paragraph 4 of her statement of claim stated that- “The said lock-up stalls were allocated to the plaintiff by the Awka South Local Government on 26/7/07 after fulfilling all necessary prerequisites to the Local Government Documents evidencing the said Allocation and Change of Ownership from the previous owners of the lockup stalls to the plaintiff issued to the plaintiff by Awka South Local Government will be found upon at the trail of this suit.”
The 1st respondent did not even deny paragraph 4 of the statement of claim. In paragraphs 5 and 6 of his statement of defence, he stated that- “In answer to paragraph 4 of the statement of claim the defendant states that he does not know about any allocation to the plaintiff of any stalls since he is not interested in any allocation. All that the defendant knows are the 4 lockup up stalls Ozo Austin Ndigwe built and asked the defendant to let to people.”
The 2nd respondent in paragraph 4 of his statement of defence denied the allocation and or transfer of ownership and alleged that it is based on fraud. The said paragraph 4 of the 2nd defendant’s statement of defence states thus.” The 2nd defendant denies paragraph 4 of the statement of claim. In answer thereto the 2nd defendant states that the Awka South Local Government did not allocate the stalls to the plaintiff, and that supposing but not conceding that they did, that the allocation is based on fraud. The 2nd defendant further states that there is nobody allocated any stall at our line known as Chibuike Emos or Arinze Uzodinma as for the issue of transfer of ownership to arise in the first instance from them to the plaintiff and that this is the fraud apparent on the transaction.”
The 2nd respondent did not state the particulars of the alleged fraud as required by Order 15 Rule 3(1) of the 2006 High Court of Anambra State (Civil Procedure) Rules which states that- “In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence and in all other cases, in which particulars may be necessary, particulars (with dates and items if necessary) shall be stated in the pleadings.”
Apart from alleging that the allocation or change of ownership was based on fraud, the 2nd respondent, a former chairman of Awka South Local Government, did not contend that the documents were not issued by the Awka South Local Government. In any case, he did not elicit evidence to prove his statement of defence including the allegation of fraud in paragraph 4 therein. He did not testify as a witness in the case, so as to adopt his written statement on oath filed along with his statement of defence. So it did not form part of the evidence before the trial court. A written statement on oath can not form part of the evidence adduced at the trial, unless the maker of the statement (deponent) testifies as a witness and adopts the statement as part of his testimony in court. Until it is so adopted as part of the witness testimony in court, it is worthless. The 1st respondent who testified as DW1 did not give any evidence showing or suggesting that exhibits C and D were forged or false. So their authenticity was not in dispute on the pleadings and the evidence. The trial court in its judgment held that “exhibits ‘C’ and ‘D’ are the allocation papers in which the stalls were allocated to the plaintiff and duly signed by Awka South Local Government and PW1.” The trial court further in its judgment stated that “Exhibit ‘C’ and ‘D’ allocation papers were issued and signed by Awka South Local Government. Exhibit C and D constitute sufficient evidence that Awka South Local Government transferred the allocation of stalls Nos PJO/1 and PJO/2 from the initial allotees to the appellant.
Exhibits F1 and F2 are acknowledgments of receipt of monies paid as stallage fees in respect of the stalls in dispute. Exhibits G1 and G2 are acknowledgments of receipt of sanitation fees for the said stalls in dispute.
The fees therein were paid by the appellant. Exhibits F1, F2, G1 and G2 therefore show that the appellant pays the stallage and sanitation fees for stalls Nos PJO/1 and PJO/2. The appellant in his testimony under cross-examination stated that he paid the above fees as the holder of exhibits C and D and the owner of the stalls. The 1st defendant testified as DW1 under cross-examination that it is the owner of the right of occupancy of the stall that pays the stallage fees. Exhibits F1, F2, G1 and G2 therefore confirm the appellant as owner of the stalls a transferred to her by exhibits C and D.
Both sides agree that stallage and sanitation fees for the stalls in the market are paid by owners of the stall.
In the face of exhibits C, D, F1, F2, G1 and G2, there was no need for any further evidence from Awka South Local Government. The said exhibits were issued by Awka South Local Government and contain evidence that is clearly self explanatory. I agree with the submission of Learned Counsel for the appellant they constitute evidence of the acts and deeds of Awka South Local Government. In addition, I take judicial notice that the allocation of market stalls by a municipal or Local Governments to a person and the acknowledgment of receipt of monies from a person as payment of stallage and other fees to such Municipal or local Government are usually contained in documents. Once facts are reduced into writing or contained in a written document, the existence of such facts can only be proved by the primary or secondary evidence of that document. S. 125 of the 2011 Evidence Act provides that “All facts, except the contents of document, may be proved by oral evidence. S. 128(1) of the 2011 Evidence Act provides that- “When a judgment of a court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given or such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.
Provided that any of the following matters may be proved:-
(a) fraud, intimidation, illegality; want of due execution, the fact that it is wrongly dated, existence or want or failure, of consideration, mistake in fact or law; want of capacity in any contracting party, acted when it is not inconsistent with the terms of the contract, or any other matter which, if proved, would produce any effect upon the validity of any document, or of any part of it, or which would entitle any person to any judgment, decree, or order relating to it;
(b) the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them;
(c) the existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property;
(d) the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of
property;
(e) any usage or custom by which incidents not expressly mentioned in any contract are annexed to contracts of that description; unless the annexing of such incident to such contract would be repugnant to or inconsistent with the express terms of the contract.”
The situations when oral evidence of such documents can be allowed was not pleaded or raised by the respondents. The 2nd respondent attempted to plead that the transfer of allocation was based on fraud, but did not go further to state the particulars of fraud. So it was not successfully pleaded. Assuming fraud was successfully pleaded, the duty to prove it is that of the 2nd respondent who made the assertion. . It is trite that a party who alleges or asserts must prove. See S. 135(2) of the 2011 Evidence Act which provides that- the burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. Therefore it was the respondent that had the duty to elicit evidence including calling officials of Awka South Local Government to testify to contradict or disown the above mentioned exhibits particularly exhibits C and D. on any of the grounds listed in the provisos (a), (b), (c), (d) and (e) to S. 128(1) of the Evidence Act. The 2nd respondent did not testify in support of his statement of defence and did not call any official of Awka South Local Government to contradict exhibits C and D in any respect. The appellant proved the content of exhibits C and D by the production of the primary evidence of the documents (the originals of the documents themselves). The appellant, on the state of the pleadings and the evidence had no duty to call the officials of Awka South Local Government to testify as witnesses on the content of such documents.
The discretion to call any person as a witness or any number of witnesses is exclusively that of a party to the case. The court cannot decide for a party which person to call as a witness or the number of witnesses to call to prove his case. What is important is that the witnesses called should be relevant witnesses and that a party has elicited sufficient evidence to prove his case and not whether a particular person is called as a witness or a certain number of witnesses were called. The implication of the above part of the judgment of the trial court is that the only means to prove that Awka South Local Government transferred the allocation of the said stalls to the appellant is the testimony in court of the officials of Awka South Local Government or the original allotees of the stalls confirming the contents of exhibits C and D. This suggestion is with due respects not correct.
The authenticity of exhibits C and D was not an issue for trial and so was not on trial. There was no evidence that they were forged or fraudulently made. So there was no need for any evidence from Awka South Local Government to confirm them. The said Exhibits C and D constitute sufficient proof of their contents. By virtue of the said exhibits C and D, it must be presumed that the transfer of allocation of the stalls therein by Awka south Local government from the original allotees to the appellant is regular in that requirements for such transfer were satisfied. The appellant in paragraph 4 of her written statement on oath adopted on 24-9-2009 as her evidence in examination in chief, testified that- “That the said lock-up stalls were allocated to me by the Awka South Local Government on 26/7/07 after I had fulfilled all necessary prerequisites to the Local Government.
Thereafter I was issued with documents dated 26/7/07 evidencing the said allocation and change of ownership from the previous owners of the lock-up stalls by Awka South Local Government. If I see the said documents at the trial of this suit I will recognize them.” She then produced the documents admitted as exhibits C and D.
She was not cross-examined on this part of her testimony. By this failure to challenge or contradict this testimony during cross-examination of the appellant (PW2), the respondents tacitly accepted that the testimony is correct. See GAJI V. PAYE. (2003) 5 SC 53.
The DW1’s testimony under cross-examination that the transfer of allocation and change of ownership is done only after verification and confirmation of the authenticity of an allocation, and the unchallenged evidence of PW2 that she pays stallage and sanitation fees, supports the presumption of the regularity of the transfer of the allocation that arises by virtue of exhibits C and D.
The cross-examination of the DW1 on the issue is as follows:-
Q. “In the case of selling the store or letting it out to a tenant whom does the prospective tenant or the purchaser look for?
A. He looks for the person having the allocation papers.
Q. If the shop is sold to a purchaser, does the owner hand over the original allocation paper to the purchaser.
A. Yes, after the buyer had ascertained if the allocation papers are genuine because there are fake allocation papers.
Q. After purchase the buyer proceeds to the local government for change of ownership in his or her own name.
A. Yes.
Q. The local government will conduct its verification and if satisfied will issue transfer of allocation of occupation to the purchaser.
A. Atimes they do not verify but after verification they issue a change of ownership if it is not a fake one.”
S. 168(1) of the 2011 Evidence Act states that “when any judicial or official act is shown to have been in a manner substantially regular, it is presumed that the formal requisites for its validity were complied with.”
This principle of regularity of official and judicial acts has been applied in a long line of cases including AMALA v. THE STATE (2004) 18 NSCQR 834, TORRI V. THE NATIONAL PARK SERVICE OF NIGERIA (2011) LPELR 8142 (SC) AND CPC V. INEC & ORS (2011) LPELR 8257 (SC). In SHITTA BEY v. A.G. FEDERATION (1998) 7 SC (PT 11) 121, the Supreme Court held that- “Apart from what is called presumption of regularity of official acts, there is the presumption that, where there is no evidence to the contrary, things are presumed to have been rightly and properly done. This is expressed in the common law maxim in the latin phrase omnia praesumuntur rite esse acta. This presumption is very commonly resorted to and applied especially with respect to official acts.” See also MAGAJI & ORS V. CADBURY FRY (EXPORT) LTD & ORS (1985) NWLR (PT. 7) 393.
In view of exhibits C, D, F1, F2, G1 and G2, the argument of Learned Counsel for the respondent that the appellant is not the owner and occupier of the stalls because he was not in physical possession of same is not valid.
It is settled law that possession is not the only means of proving ownership and that possession without more raises the presumption that the possessor is owner against everybody except the person with a better title. See MOGAJI V. CADBURY TRY (EXPORT) LTD (supra).
The best and overriding means of proof of ownership of the absolute title to or the right of occupancy of the market stalls in dispute herein is the document of title showing that Awka South Local Government has vested the absolute title to or the right of occupancy of the land or building on the holder of such document of title.
The documents of title in this case are exhibits C and D. The holder of a document of title to the stalls remains the owner of same whether he is in possession of it or not. So the appellant is owner of the market stalls Nos PJO/1 and PJO/2 by virtue of exhibits C and D irrespective of the fact that she was not in physical possession of same.
Exhibits C, D, F1, F2, G1 and G2 also amount to sufficient evidence that the appellant is also the occupier of the said market stalls. She is an occupier because, as submitted by Learned Counsel for the appellant, she is in constructive possession of the said stalls. Her constructive possession of same arises by virtue of her ownership of the right of occupancy of the stalls.
As defined in Blacks Law Dictionary, 9th Edition at page 1282, constructive possession also known as effective possession, is the control or dominion over a property without actual possession or custody. The notion of constructive possession of land by the owner of a right of ownership of the title to the land or right of occupancy of the land is in recognition of the right to possession as an incident of ownership or grant from the owner of the allodial title to the land. However the occupier status of the owner of the right of occupancy of a market stall goes beyond constructive possession because the person known to and recognized by Awka South Local Government, the owner of the allodial title to the stalls, as occupying the stalls is the allotee of the stall and not the persons physically occupying the stalls as tenants of the allotee. It is the allotee that pays the monthly stallage fees, the sanitation fees and capitation rate payment. As held by the Supreme Court in SAPO & ORS V. SUNMONU (2010) 11 NWLR (PT 1205) 374 it is now firmly settled that proof of ownership is prima facie proof of possession. The presumption being that the person having title to the land in dispute is in possession.
It is obvious from the portion of the judgment reproduced above that the trial court did not evaluate the contents of exhibits C, D, F1, F2, G1 and G2 and did not consider their probative value, even after it had found that Exhibits C and D are therefore the allocation papers in which the stalls were allocated to the plaintiff and were duly signed by Awka South Local Government.” The trial court rather chose to rely on the fact that Awka Local Government was not called to testify to disregard the above mentioned exhibits. Its decision that the appellant on the preponderance of evidence, did not prove that the stalls Nos PJO/1 and PJO/2 were allocated to her by Awka South Local Government was based solely on the ground that Awka Local Government was not called to testify as a witness. This approach of the trial court is, with due respects, not correct. A court has a mandatory duty to consider and evaluate all evidence elicited by all parties in a case before it in arriving at any decision in the case. See MOGAJI & ORS V. ODOFIN & ORS (1978) 4 SC (REPRINT) 53 AT 65 and ADAMU v. STATE (1991) 6 SC 17. It has no power to ignore or refuse to consider any evidence before it in arriving at any decision. To refuse to consider any evidence or its probative value amounts to lack of evaluation of that evidence and unfair adjudication. As the Supreme Court held in OSISAODU & ANOR v. ELEWUJU & ANOR (2006)13 NWLR (PT. 998) 517. It is the totality of the evidence that has to be evaluated and assessed together. The trial court cannot pick and choose the evidence to be assessed.
The failure of the trial court to consider exhibits C, D, F1, F2, G1 and G2 and their probative value clearly resulted in a miscarriage of justice, because, if it had considered or evaluated the exhibits, it would have seen that those exhibits contain sufficient evidence establishing the appellants right of occupancy of the stalls and that officials of Awka South Local government need not be called to testify as witnesses. The Supreme Court in BALOGUN & ORS V. AKANJI & ORS (1988) 2 SC 199 held that “where the trial court did not consider the entire evidence, its conclusions are bound to be faulty and erroneous. In ONISADON & ANOR V. ELEWUJU & ANOR (supra) it held that proper evaluation of evidence is absolutely important in order to determine a case and come to a just conclusion.”
For the reason of the disregard of the said exhibits and the miscarriage of justice that resulted therefrom, the decision of the trial court that without calling Awka Local Government to testify, the appellant failed to discharge the burden of proof of her claim of right of occupancy of the stalls on the preponderance of evidence cannot stand. The decision is not the result of a proper evaluation or consideration of the totality of the evidence before the trial court. It is accordingly hereby set aside. In OKUNZUA v. AMOSU & ANOR (1992) 7 SCNJ 243, the Supreme Court held that “where a trial court failed to properly evaluate the material before it, an appellate court will, in the interest of justice set aside its decision.”
Having set aside the above decision on facts, this court is in as good a position as the trial court to consider and evaluate exhibits C, D, F1, F2, G1 and G2 and make proper findings. In FATUADE V. ONWOAMANAM (1990) 3 SC (PT 11) 138, the Supreme Court held that “where a trial court fails to consider and evaluate material evidence essential to a proper and just determination of the case, the Court of Appeal is in as much a good position as the trial court to consider and evaluate such evidence and make proper findings.” I have already extensively considered the contents of those exhibits and made proper findings thereon. By virtue of exhibits C, D, F1, F2, G1 and G2, it is obvious that it is the appellant that Awka South Local Government knows and recognizes as the actual occupier of the said stalls.
In the light of the foregoing, I hold that the appellant proved, on the preponderance of evidence that Awka South Local Government transferred the allocations of stalls Nos PJO/1 and PJO/2 from the original allotees to her and that she is the owner of the right of occupancy of the stalls and the occupier of the said stalls.
I will now consider the issue of whether stalls Nos PJO/1 and PJO/2 are the stalls occupied by the tenants of the 2nd respondents resulting in the suit leading to this appeal.
The appellant in her pleadings and the evidence elicited in support thereof, stated that the respondents, without her consent entered the said stalls Nos PJO/1 and PJO/2, partitioned same into four smaller stalls and leased them out to tenants. The 1st defendant in his statement of defence and testimony in court state that the 2nd defendant was allocated four market stalls in Eke Awka market 6 section by Awka South Local Government that the 2nd defendant built the stalls and he, the 1st defendant, leased them out to tenants on behalf of the 2nd defendant, and that the four market stalls are different from the two market stalls allocated to the appellant in exhibits C and D.
The appellant elicited evidence through PW1, the Managing Director of Ocean Gate International Limited to show that the stalls occupied by the respondents as four stalls are stalls Nos. PJO/1 and PJO/2 partitioned into four stalls by the respondents. It is obvious that the appellant relied on the evidence of PW1 to prove this fact because she believed that Ocean Gate International Limited on behalf of Awka South Local government constructed all the stalls in Eke Awka Market 6 section and should know the stalls. It is also clear from the evidence of PW1 that he played a role in the appellant’s acquisition of the stalls.
The respondents in their pleadings contend that the four stalls occupied by them were constructed by them. The 1st defendant in his testimony as DW1 stated that the four stalls were constructed by the 2nd defendant who instructed him to lease same out to tenants.
The trial court held that “the PW1 is the contractor who constructed the stores, allocated same to the original owner, but he is not a staff or authority of the Local Government who transferred ownership by Exhibits C and D from the original owners to the plaintiff on record. I cannot therefore rely on the evidence of PW1 as corroboration that the stalls PJO/1 and PJO/2 were allocated to the plaintiff and that they are the stalls in occupation by the 1st defendant. I hold that the plaintiff has failed to discharge the burden of proof on the preponderance of evidence. I hold that the plaintiff has failed to prove that stalls PJO/1 and PJO/2 are the stalls in occupation by the 1st defendant.”
In arguing against this decision, Learned Counsel for the appellant submitted that the “failure of the defendants to produce evidence of allocation of the said four stalls to the 2nd defendant, evidence of payment of stallage fees in respect thereof or evidence of any contract enabling the 2nd defendant to construct the said four stalls means that none of these documents exist or that if they are produced they will be unfavourable to the case of the defendants. I refer my lords to section 149(d) of the Evidence Act (supra). It also means that the four stalls situate at Eke Awka Market which the defendants occupy are not distinct from stall Nos. PJO/1 and PJO/2 and the defendant have not discharged the onus placed on them by section 137(2) of the Evidence Act (supra) to prove their assertions that 2nd defendant constructed the four stalls which are different from stall Nos. PJO/1 and PJO/2 which they occupy.”
Learned Counsel for the respondent did not respond to this submission by Learned Counsel for the appellant.
The appellant in all her pleadings and the evidence in support thereof identified the stalls allocated to her by Awka South Local Government as per exhibits C and D, and for which she has been paying stallage and sanitation fees as per exhibits F1, F2, G1 and G2 as market stalls Nos PJO/1 and PJO/2 at Eke Awka market 6 section. She elicited evidence in support of her pleadings stating that it is the same stalls PJO/1 and PJO/2 constructed by Ocean Gate International Ltd on behalf of Awka South Local Government that the 2nd defendant entered into and partitioned into four smaller stalls and handed over to the 1st defendant to lease to tenants on his behalf. The evidence of PW1 and PW2 are consistent with each other and consistent with the appellant’s pleadings that it is market stalls Nos PJO/1 and PJO/2 that the 2nd defendant entered into and partitioned into four smaller stalls and let out to tenants through the 1st respondent. The stalls in dispute in this case are the four stalls the 1st respondent let out to tenants.
The appellant identified them as stalls Nos PJO/1 and PJO/2 that were initially two in number and now partitioned into four by 2nd respondent.
PW1 whose company constructed the disputed stalls testified that the stalls were initially two with numbers PJO/1 and PJO/2 and that they were the stalls whose allocation was transferred from the original allotees to the appellant.
It is obvious that the appellant did adduce evidence which ought reasonably to satisfy the trial court that stalls Nos PJO/1 and PJO/2 are the stalls the 2nd defendant entered into, partitioned into four smaller stalls and handed over to respondent to lease to tenants on his behalf. The trial court was therefore wrong to have held that the appellant failed to prove that the stalls PJO/1 and PJO/2 are the stalls in occupation by the tenants put in by the 1st respondent. The appellant sufficiently identified the disputed stalls as hers. From the foregoing, I hold that the trial court was wrong to have held that “there is no evidence before the court on which the court can only rely upon to hold categorically that the said stalls PJO/1 and PJO/2 are the same stalls in occupation by the 1st defendant.”
The trial court held that “the plaintiff s witness PW1 constructed the stalls but he did not allocate the stalls but he did not allocate the stalls to the plaintiff, his evidence cannot take the place of corroboration as submitted by the plaintiff’s counsel that the stalls were allocated to PW1”
I think that the trial court having held that PW1 constructed the disputed stalls should have shown regard to the fact that he had opportunity of knowing and identifying the disputed stalls that were constructed by him.
The same trial court went further to hold that- “The PW1 is the contractor who contracted the stores, allocated same to the original owner, but he is not a stall or authority of the Local Government who transferred ownership by Exhibits C and D from the original owners to the plaintiff on record. I cannot therefore rely on the evidence of PW1 as corroboration that the stalls PJO/1 and PJO/2 were allocated to the plaintiff.” Having now held that the PW1 also allocated the stalls to the appellant the trial court should also have shown regard to the fact that he knows the stalls he allocated to the appellant and if he says that the disputed stalls are the ones he allocated to the appellant, such evidence cannot be rightly treated as speculation or presumption. The fact that he is not a staff or authority of the Local Government who transferred the ownership by exhibits C and D from the original allotees to the appellant, does not take away his personal knowledge of the facts as to the identity of the disputed plots. In any case paragraph (h) of exhibit A gives the Ocean Gate International Limited (PW1’s Company) power to allocate or sell allocation of stalls on behalf of the Local Government.
It states that- “The Local Government hereby grants unto the contractor 350 (Three hundred and fifty) shops within the market six absolutely which the contractor may sell. Provided that the allocation fees shall be payable to the Awka South Local Government, before the completion of the contract and shall be treated as a debt owed by the contractor.”
I therefore hold that there is no reasonable basis for the trial court’s refusal to rely on the evidence of PW1 that the four stalls were partition out of market stalls Nos PJO/1 and PJO/2.
On the appellant’s pleadings and evidence, it was glaring that the respondents needed to elicit evidence to disprove or rebut the case established by the appellants and that if they failed to do so the appellants would be entitled to judgment.
I will now proceed to consider if the respondents were able to rebut the case established by the appellant. I will start with the defence they put forward in their pleadings.
Each respondent filed a statement of defence. In their respective statements of defence, they contended that the stalls occupied and partitioned by the 2nd respondent was allocated to him by Awka South Local Government and are different from stalls Nos PJO/1 and PJO/2.
The first respondent averred in paragraphs 3, 4, 5, 6, 7, 8, 9 and 11 of his statement of defence that –
3. “The defendant denies paragraph 3 of the statement of claim as false and in answer stated that the stalls in dispute are four (4) lock-up stalls and not two, owned by Ozo Dr. Austin Ndigwe who constructed the stalls and instructed the defendant to let them out to traders which the defendant did.
4. In further answer to paragraph 3, the defendant states that he does not know about the purported stalls No. PJO/1 and PJO/2 claimed by the plaintiff all the stalls the defendant knows are four (4) lock-up stalls in Eke Awka Market 6 section built by Ozo Austin Ndigwe.
5. In answer to paragraph 4 of the statement of claim, the defendant states that he does not know about any allocation to the plaintiff of any stalls since he is not interested in any allocation. All that the defendant knows are the 4 lockup stalls Ozo Austin Ndigwe built and asked the defendant to let to people.
6. In further answer to paragraph 4, the defendant says that the plaintiff’s alleged allocation papers are not in respect of the 4 (four) stalls built by his Boss, Ozo Austin Ndigwe.
7. The defendant denies paragraph 5 of the statement of claim and in answer states that the original foundation of stalls built by Ozo Austin Ndigwe was planned to contain four (4) lock-up stalls and so the 4 lock up stalls were built and allocated to tenants.
8. In further answer to paragraph 5, the defendant states that he did not enter forcefully or occupied or partitioned the stalls of the plaintiff. That where the defendant entered was the (4) four lock-up stores, which were approved for construction by the then chairman of Awka South Local Government.
9. The defendant admits paragraph 6 only to the extent that when the plaintiff told the defendant that she, the plaintiff was the owner of the stalls, the defendant immediately replied the plaintiff that her claim was wrong that the construction of the 4 (four) lock-up stalls was approved by the Awka South L.G.A and so the plaintiffs claim should not be in respect of the site of the construction of the four lock-up stalls but may be another place.
11. The defendant denies paragraph 7 and still stating that he does not occupy the stalls of the plaintiff, that the 4 lock-up stalls Ozo Austin Ndigwe constructed and directed him to let out to people were what he let out.”
The 2nd respondent averred in paragraphs 3, 6, 7, 8, 9, 10, 11, 12 and 13 that of his statement of defence that-
3. “The 2nd defendant denies paragraph 3 of the statement of claim specifically. In answer thereto, the 2nd defendant state that he does not know the purported stalls except 4 lock-up stalls at our line which he constructed at the section of Eke Awka Market known as our line.
6. The 2nd defendant states that it was during his tenure as the Chairman of Awka South Local Government in 2003, when Dr. Chinwoke Mbadinuju was the Executive Governor of Anambra State that the stalls situate at the part of Eke Awka market known as our line were constructed.
7. The 2nd defendant states that it was government policy at the time that lockup stalls be constructed at the part of Eke Awka Market known as Our Line on owner/occupier basis.
8. The 2nd defendant contracted one Engr. Mobike to construct 4 lock up stalls for him on owner/occupier basis.
9. The 2nd defendant later had a problem with Engr. Mobike for not following his instructions strictly in constructing the stalls particularly as regards standardization.
10. The 2nd defendant then disengaged Engr. Mobike and appointed the 1st defendant to construct the 4 lock-up stalls for him.
11. The 2nd defendant states that when the 1st defendant finished the construction, he instructed him to allocated the 4 stalls to tenants.
12. That the 1st defendant carried out his instructions and allocated the lock up stalls to the following persons:
i. Charles Nweke from Okpino,
ii. Ogochukwu Mgbemene from Nibo,
iii. Maduka Iruegbu from Abia State, and
iv. Alhaji Obiora Chigbo
13. That the tenants are paying monthly stallage fees to the Awka South Local Government behalf of the 2nd defendant.”
It is glaring from the above portions of the respective statements of defence that the respondents do not agree on who constructed the four stalls occupied by the tenants of the 2nd respondent. The 1st respondent in paragraphs 3, 4, 5, 6, 7 and 11 of his statement of defence stated that the stalls were constructed by the 2nd respondent and handed over to him to lease out to tenants. The 2nd respondent in paragraphs 8, 9 and 10 stated that he engaged PW1 to construct the 4 lock up stalls for him and that owing to a problem he had with PW1, he engaged 1st respondent to construct the stalls and that 1st respondent completed the construction and let out the stalls to tenants. The 2nd respondent had also stated in paragraph 6 of the 2nd respondents statement of defence that he constructed the stalls occupied by him.
The question of who constructed the stalls occupied by the 2nd respondents is important in ascertaining the identity of the said stalls because the respondents in their pleadings had relied on the fact that the stalls occupied by them were constructed by the 2nd respondent or partly by PW1 and completed by the 1st respondent, to show that it is different from stalls Nos. PJO/1 and PJO/2 which were constructed by Ocean Gate International Limited. So if it is established that the stalls occupied by the respondents were constructed by the 2nd respondent or partly by PW1 and partly by 1st respondent then it will mean that those stalls are certainly different from PJO/1 and PJO/2 which were constructed by Ocean Gate International Limited.
The 1st respondent testified as DW1 that the four stalls he let out to tenants were constructed by the 2nd respondent and handed over to him to let out to tenants on behalf of the 2nd respondent. The 2nd respondent did not testify as a witness. Let me at this juncture state that I do not agree with the submission of Learned Counsel for the respondents that the fact that Awka South Local Government gave Ocean Gate International Ltd contract to construct market stalls including the disputed stalls in Eke Awka market 6 section is not pleaded. It is clearly pleaded in paragraphs 1 and 5b of the 2nd respondent’s statement of defence.
It is noteworthy that-
1. The 2nd respondent in his statement of defence did not plead that Awka Local Government allocated any stalls to him apart from stating that he engaged PW1 and later 1st respondent to construct four stalls for him.
2. The 1st respondent also in his statement of defence did not plead that Awka South Local Government allocated any stalls to the 2nd respondent apart from stating that the said Local Government approved the construction of the four stalls.
3. The respondents did not plead in any part of their statement of defence that Awka South Local Government issued to the 2nd respondent any document allocating any plots to him or approving the construction of any stalls by the 2nd respondent.
4. The respondents did not plead the numbers of each of the stalls.
5. The respondents did not plead that the 2nd respondent had been paying stallage fees, sanitation fees and capitation rate payment for the stalls.
6. Exhibits A and B show that Awka South Local Government contracted Ocean Gate International Limited to construct to completion the Eke Awka market 6 extension. Under this contract the said company was to construct all the stalls in the said market. PW1, who is the Managing Director of Ocean Gate International Limited and signatory to exhibits A and B on behalf of his company testified in his written statements on oath sworn on 15-5-2008 and 22-5-2009, and adopted on 21-7-2009 as his testimony in examination in chief, testified that ocean Gate International Limited constructed the disputed stalls in execution of the contract in exhibits A and B. Under cross-examination PW1 testified that the company had constructed 67 stalls and the contract was still on going. The cross-examination did not challenge or contradict the evidence in examination in chief including exhibit A and B that Awka South Local Government had contracted out the construction of the market stalls to Ocean Gate International Company Limited. The Cross-examination only dwelt on showing that the contract was terminated as the company has not been able to complete the construction of all the market stalls. Pw1 maintained that the contract had not been terminated and is ongoing and that so far they have built 67 market stalls which includes the disputed stalls.
7. PW1 identified the stalls occupied by the defendants as market stalls PJO/1 and PJO/2 and that these are the stalls whose allocation were transferred from their original allotees to the appellant.
8. PWI testified in his said statement on oath that each stall allocated to a trader has distinct number. This evidence was not challenged or contradicted in cross-examination by the respondents. By failing to challenge or contradict this evidence in cross-examination the respondents have accept the evidence as true. See GAJI V. PAYE. (supra).
The trial court failed to consider that the respondents having asserted that the four market stalls (disputed stalls) occupied by their tenants are distinct from market stalls Nos PJO/1 and PJO/2, had a duty to plead and elicit evidence of any fact that shows that it is distinct from the market stalls Nos. PJO/1 and PJO/2. There is no pleading or evidence that the 2nd respondent was allocated the disputed stalls by Awka South Local Government. The pleading and the evidence of PW1 and PW2 that the disputed stalls occupied by his tenants were not allocated to him remains unchallenged and uncontradicted. It is trite law that where evidence is unchallenged and uncontradicted, the court must act on it as establishing the facts contained therein.
So the only available document of title to the disputed stalls is exhibits C and D which stated that the stalls are allocated to the appellant. There is no pleading or evidence that the disputed stalls have numbers different from PJO/1 and PJO/2. There is no pleading or evidence that any of the respondents ever paid stallage fees or sanitation fees for the disputed stalls distinct from the ones paid by the appellant for stalls Nos PJO/1 and PJO/2.
There is no evidence that Awka Local Government authorized the 2nd respondent to construct the market stalls. Exhibits A and B and the testimony of PW1 that Awka Local Government engaged Ocean Gate International Limited to construct the Eke Awka market 6 stalls and that it has constructed 67 market stalls including the disputed stalls show that the disputed stalls were not constructed by the respondents. In the light of the foregoing I agree with the submission of Learned Counsel for the appellant that the absence of any pleading or evidence of allocation of the stalls to 2nd respondent, the absence of pleading and evidence of numbers of the stalls, absence of evidence of authority to construct the said stalls, exhibits A, B, C, D, F1, F2 G1 and G2, the absence of evidence of payment of stallage and sanitation fees by 2nd respondent show that the four stalls do not have an identify and existence separate from stalls Nos PJO/1 and PJO/2 and were partition of the said two stalls.
In the light of the foregoing it is obvious that the question, who as between the appellant and the 2nd respondent was allocated the disputed stalls by Awka South Local Government can be effectually determined without calling Awka South Local Government as a witness. The evidence of the existence of such allocation is I have already held herein, usually contained in a document. The question can be determined by considering the document issued by Awka South Local government to all or either of the parties herein. Both sides are supposed to produce such document. Only the appellant produced the document which are in evidence as exhibits C and D.
Since there was no rival document showing that the same disputed stalls were allocated by Awka South Local Government to the 2nd respondent, it was idle and baseless talking of the need to call Awka South Local Government as a witness. In any case, the respondents did not plead in their statements of defence or elicit any evidence that Awka South Local Government allocated the disputed stalls to the 2nd respondent. So the pleading and evidence of the appellant that Awka South Local Government did not allocate the disputed stalls to the respondents was not disputed and therefore was not an issue at the trial. It was clearly admitted.
Even if both sides had each produced a document issued by Awka South Local Government allocating the disputed stalls to each of them, the court could still have determined the question on the basis of which allocation was first in time and there would be no need to call the Local Government as a witness. The need to call the Local Government as a witness could have arisen only where there are two rival allocation documents issued by Awka Local Government to either side on the same day. There was clearly no need to call Awka Local government or any of its official as a witness. Since the failure to call Awka Local Government was the only basis for the decision of the trial court that the appellant failed to prove that stalls PJO/1 and PJO/2 are the stalls occupied by the respondents, it follows that, now that I have decided that there was no need to call the Local Government as a witness, the decision that the appellant has not prove that stalls PJO/1 and PJO/2 are the stalls occupied and partitioned by the respondents becomes baseless and cannot stand. It is hereby set aside. I therefore hold that the appellant, on the preponderance of evidence proved that the stalls occupied and partitioned by the 2nd respondent are stalls Nos PJO/1 and PJO/2 allocated to the appellant by Awka South Local Government.
The contention by Learned Counsel for the respondents that Awka South Local Government is a necessary party to the case and that failure to join it as a party was fatal to the case of the appellant is not valid for consideration in this appeal for the following reasons. Firstly, the trial court never decided that there was need to join Awka Local Government as a party and that the failure to so join it was fatal to the appellant’s case. There is no part of the judgment of the trial court stating so. Secondly, there is no ground of appeal complaining that the failure to join Awka South Local Government as a party was fatal to the appellant’s case. It is trite law that an appeal can only lie against what was decided by the lower court. Therefore the complain in the grounds of appeal must be against what was decided in the judgment. An appeal against a judgment on a matter not decided therein or arguments in an appeal on a matter not decided in the judgment appealed against is incompetent and is not valid for consideration by the appellate court.
Furthermore, arguments in an appeal must derive from the valid issue or issues for determination based on the grounds of the appeal. Any argument that is not founded on any issue, for determination in any appeal and is not related to or derived from any ground of an appeal is incompetent and will be discountenanced.
For the above reasons I hold that sub-issue 3 herein is incompetent is not valid for consideration in this appeal.
On the whole, I hold that this sole issue for determination in this appeal is resolved in favour of the appellant.
Therefore the appeal has merit and is successful. It is allowed.
The judgment of Anambra State High Court per Emembolu J delivered in suit No. A/82/08 on 26-7-2010 is hereby set aside.
The plaintiff’s claims in paragraph 10 of the statement of claim are hereby granted as follows-
a. A declaration that the plaintiff is the person entitled to the ownership, use and occupation of the lock up stalls Nos. PJO/1 and PJO/2 with appurtenances situate lying and being at Eke Awka park market 6 allocated to her by Awka South Local Government on 26-7-2002.
b. Possession of the said lock up stalls wrongfully occupied by the defendant.
c. A declaration that the defendant is not allowed to occupy the said lock up stalls.
d. An injunction forbidding the defendant whether by himself or by instructing or encouraging any other person from occupying the said lock up stalls.
e. An order that the defendant do forth with pull down and remove the said partitions erected in the said lock up stalls.
f. Mesne profits at the rate of N8,000.00 per lock up stall per month from 1-11-07 till possession is given up
g. Interest on the judgment sum at the rate of 5% per annum till the same is fully liquidated.
The respondents shall pay cost of N80,000 to the appellant.
ADZIRA GANA MSHELIA, J.C.A.: I agree.
IGNATIUS I. AGUBE, J.C.A.: I agree.
Appearances
FIDELIS O. ANYANEGBU ESQFor Appellant
AND
RAPHAEL O. NZEKWE ESQFor Respondent
