EBENEZER OKOYE v. CYPRIAN ADIELE & ANOR (2014)

EBENEZER OKOYE v. CYPRIAN ADIELE & ANOR

(2014)LCN/7448(CA)

In The Court of Appeal of Nigeria

On Friday, the 14th day of November, 2014

CA/E/249/2007

RATIO

EVIDENCE: CALLING WITNESSES; WHETHER THE PLAINTIFF IS NOT REQUIRED TO CALL ALL THE WITNESSES HE CAN CALL, WHETHER CARES ARE NEVER WON OR LOST BY THE NUMBER OF WITNESSES A PARTY CAN CALL
Be it noted that to succeed in a case like this a plaintiff or litigant is not bound to appear in Court to testify in the case instituted by him. Unless if by the peculiar facts of the case the fact in issue is known to him alone or the law requires the presence of such litigant. In that case his attendance and his evidence become inevitable. What is important is to lead cogent and credible evidence and evidence of relevant witness will suffice. Materiality of evidence matters a lot. It is not the quantum of evidence that matters. See: Agbi v. Ogbeh 2006 11 NWLR (Pt. 990) 65, Archibong v. State (2006) 14 NWLR (Pt. 1000) 349. Section 200 of Evidence Act, 2011 does not require the calling of any particular number of witnesses as to insist that evidence of Plaintiff must be called to add to the number. Cases are never won or lost by the number of witnesses a party can call. That is not all. per. SAIDU TANKO HUSAINI, J.C.A.

EVIDENCE: ORAL AND DOCUMENTARY EVIDENCE; WHETHER DOCUMENTARY EVIDENCE IS A HANGER UPON WHICH ORAL EVIDENCE ON THE SAME POINT CAN BE ASSESSED

PRACTICE AND PROCEDURE: AMENDED STATE OF CLAIM; WHETHER THE AMENDED STATE OF CLAIM NO DENIED ARE DEEMED ARE TAKEN AS ADMITTED
Those averments in the amended state of claim referred to above particularly those at paragraphs 5, 8 and 10 are material facts on points of substance and to join issues over those facts there must be specific and radical denial of the facts or points of substance.

Order 15 Rule 5 (1) (2) of the High Court of Anambra State (Civil Procedure) Rules 2006 provide thus:-

“5(1) Every allegation of fact in any pleadings if not specifically denied in the pleadings of the opposite party shall be taken as admitted except as against a person under legal disability.

So far as paragraphs 5, 8 and 10 of the Amended State of Claim on the question of the building and construction by the plaintiff of a stall were not specifically denied, they are taken as admitted and the appellant as Plaintiff was absolved from further duty of leading any evidence thereof in proof. See: Jadcon Ltd v. Oguns Electricals (supra). per. SAIDU TANKO HUSAINI, J.C.A.

PRACTICE AND PROCEDURE: RULE OF LAW AND RULE BY SELF HELP; WHETHER IT IS MORE HONORABLE TO FOLLOW DUE PROCESS OF THE LAW

The Rule of law and rule by self help or rule by force are 2 (two) strange bed fellows. Where the rule of law hold sway, the rule by self help must give way in a democratic setting such as ours. It is more honourable, respectful and more rewarding to follow due process of the law. See:
1) Ojukwu v. Government of Lagos State (1986) 3 NWLR (Pt. 26) 39.
2) Ojukwu v. Government of Lagos State (1985) 2 NWLR (Pt. 10) 806.
3) Obeya Memorial Specialist Hospital v. Attorney-General of the Federation (1987) 7 SCNJ 72. per. SAIDU TANKO HUSAINI, J.C.A.
DAMAGES: SPECIAL AND GENERAL DAMAGES; HOW TO SUCCEED IN SPECIAL AND GENERAL DAMAGES BEING AWARDED AND WHAT IS SPECIAL DAMAGE
However to succeed in special and general damages being awarded, there must be evidence on record to support such award as the burden of proof remain with Appellant to prove by evidence of his entitlement to such an award.
Special damage means the particular damage (beyond general damage) which results from the particular circumstance of the case, and of the plaintiff’s claim to be compensated, for which he sought to give warning in his pleadings in other that there may be no surprise at the trial. See: IBWA (Now Afribank Plc) v. Hotel Metropole Ltd & Anor (2010) LPELR-4272 (CA) P. 31 paragraph B – D. Special damages must be strictly proved. By strict proof it means no more than that the evidence must consist of particular losses known and established or are ascertainable before trial. See: Ojeahere v. Alakija (2011) LPELR-4701 (CA); Imana v. Robinson (1979) 3-4 SC 1. per. SAIDU TANKO HUSAINI, J.C.A.

JUSTICES

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSAINI Justice of The Court of Appeal of Nigeria

Between

EBENEZER OKOYE Appellant(s)

AND

1. CYPRIAN ADIELE
2. AUGUSTINE INYAMA Respondent(s)

SAIDU TANKO HUSAINI, J.C.A. (Delivering the Leading Judgment): This case on appeal was commenced at the High Court of Anambra State holden at Onitsha. The Appellant as the Plaintiff took out a Writ of Summons on the 18th March, 1996 and by his amended Statement of Claim dated the 10th May, 2006 and filed on the 11th May, 2006, claimed against the defendants all the reliefs listed below:-

“WHEREOF the plaintiff claims jointly and severally against the defendants as follows:

(a) A declaration that the plaintiff is the person duly allocated by the Onitsha North Local Government stall No. NMB/10C at the main market Onitsha at the police line and that the said allocation is still valid and subsisting.

(b) A declaration that the defendant’s entry into stall No. NMB/10C and the demolition of the said stall and the eventual carting away of goods and cash belonging to the plaintiff as contained in the said stall is illegal, wrongful and an infringement of the said stall No. NMB/10C at the main market, Onitsha duly allocated to him.

PARTICULARS OF SPECIAL DAMAGES:-

(i) Demolished decked stall value                   N60,000.00
(ii) 10 bundles of silk materials at N8,500.00  N85,000.00
(i:i) Destroyed Iron door value                       N15,000.00
(iv) Cash removed from the stall                    N300,000.00
N460,000.00
(v) Loss of earning/profit at N1,000 per day until possession is given up.

(d) N540,000.00 general damages.

(e) An injunction restraining the defendants, their servants, agents, privies and associates from further trespassing or in any manner whatsoever interfere or disturb the plaintiff’s possessory and occupational rights, use and enjoyment of his duly allocated stall No. NMB/10C at the main market, Onitsha.”

Before the trial court, the defendants filed a joint defence through the process dated the 9th November, 2005 and filed on the 10/11/2005. They denied all the material averments contained in the Statement of Claim.
Facts emerging from Plaintiff’s/Appellant’s said amended Statement of Claim indicate that he was duly allocated a stall numbered NMB/10C at Onitsha main market by the Onitsha North Local government from where he carried on his trading activities. The stall according to the Appellant was constructed by him on the approval and supervision of the Local Government.
Before the construction of the stall he had utilized the vacant open space as his trading spot as evidenced by the allocation paper issued by the Local Government on the 14th October, 1994, consequent upon which he also paid all necessary fees and charges for the period between January 1995 and December 1996 for the use of space/stall.
Early January 1996, the Appellant was confronted by the defendants/Respondents and some other persons whom he described as thugs who threatened him to desist him from further use of the stall. To make good their threat, the defendants/Respondents and some hired thugs returned the next day being the 5/1/1996 to destroy his stall. He said, goods of assorted types, money and other valuables were carted away. Although a report of this incidence was lodged with the police he was constrained nevertheless to go to Court to seek redress in terms of the claim, the subject matter giving rise to this appeal.

The defendants/Respondents, not unnaturally, denied those assertions that they broke into the stall and carted away Appellant’s articles of trade. Respondents have contended to the contrary that it was the Appellant who, fronting for one Chief Clement Analikwu (P.W.1) confronted them over stall No. NMB/10GE at Onitsha Main Market to warn them to vacate the place failing which the Respondents would suffer some undesirable consequences. When the Appellant and his sponsor, failed to achieve their objective they resorted to petition writing to the police all in the bid to grab for themselves the market stall No. NMB/10GE.

The Respondents further contend that they are the legitimate allottees of market stall No. NMB/10GE which was built by Onitsha North Local Government. According to them, they had made use of the open vacant space for their business before the stall was constructed on the same spot.
During trial, parties on both sides called evidence. 5 (five) witness gave evidence in support of Appellant’s case and between them tendered several documents all of which are before the Court as Exhibits P1 to P12
The 1st and 2nd Respondents each gave evidence and called one other person as witness.
The trial Court at the close of evidence reviewed the case of parties on both sides and in a considered judgment delivered on 31st day of October 2006, dismissed the action.
It is against that judgment of the trial Court this appeal has been lodged to this Court on 7 (Seven) grounds vide the Notice of appeal dated and filed on the 6th November, 2006 as reflected at pages 191-195 of the Record.

In line with the rules of this Court, parties on both sides filed their respective briefs of argument through their Counsel.

Appellant’s amended brief of argument is dated 28/5/2014 and same filed on 2-6-2014 incorporating 7 (Seven) issues distilled for determination of Court thus:-

1) Was the learned trial judge right when he held that the physical stall in dispute is not NMB/10C but NMB/10GE and that all other prayers in the plaintiff’s claim fail and are dismissed?

2) Was the learned trial judge right when he held that the plaintiff did not construct any stall at the Police Post Line of the Main Market, Onitsha and that the physical stall which the parties were fighting over was not constructed by the plaintiff?

3) Was the learned trial judge right when he held that the physical stall which the parties were fighting over was not constructed by the plaintiff and was not stall No. NMB/10C?

4) Was the learned trial judge right when he dismissed the appellant’s claim of damages on the grounds that the plaintiff never owned stall No. NMB/10C?

5) Was the learned trial judge right when he failed to award to the appellant either special or general damages as claimed by the plaintiffs?

6) Was the learned trial judge right when he failed to evaluate or to properly evaluate or erroneously evaluated the evidence adduced by the parties and the exhibits tendered?

7) Was the learned trial judge right when he awarded a cost N50,000.00 (Fifty thousand Naira) against the plaintiff/appellants?

Further to this is appellant’s Reply brief dated 10th November, 2008 and filed 20-11-08, consequent upon the Respondent’s brief of argument being served on him. The Respondents, by their Brief of argument filed on 3-11-08 have raised 4 (four) Issues for determination of Court thus:-

1) Whether the trial Court was right in dismissing the plaintiff’s/appellant’s case having held or made a finding that the physical structure or market stall in dispute is NMB/10GE and not NMB/10C as claimed by the appellant and that the disputed stall was not constructed by the appellant.

2) Whether the learned trial court was right when he dismissed the plaintiff/appellant’s claim for special and general damages in the absence of proof of damages by the plaintiff?

3) Whether the learned trial Court properly evaluated the case of the parties presented before it and rendered a decision which is supported by evidence before it.

4) Whether the cost N50,000.00 awarded against the plaintiff by the trial Court is punitive?

Appellant’s Issues Nos. 1, 2, and 3 and Respondent’s issue No. 1 can conveniently be taken and dealt with together as they each revolve around the question whether the appellant had discharged the Onus on him of proof of his claim by the standard set by law.

Issues Nos. 4 & 5 raised by the appellant in his brief and issue No. 2 raised by the Respondent are over the question of the entitlement of the Appellant to award of damages. Those set of issues can be taken and addressed together as 1 (one).

Appellant’s issue No. 6 and Respondent’s Issue No. 3 are both concerned with the evaluation or proper evaluation of evidence called by parties on both sides. The Two issues being similar can also be taken and addressed together. Issue No. 7 in the appellant’s brief of argument and Issue No. 4 raised by the Respondent in his brief both address the propriety or otherwise of the Court below in awarding cost as it did.

In the light of the observations I have made above, I will address this appeal on the 4 (four) issues listed below, namely:-

1) Whether the Appellant (plaintiff) has discharged the Onus of proof on him to entitle him to the reliefs sought at the trial Court.

2) Whether the court below was right to dismiss Appellant (Plaintiff’s) claim for special and general damages.

3) Whether the Court below properly evaluated the case put forward by parties on both sides.

4) Whether cost awarded in favour of Respondents (defendants) in the sum of N50,000.00 is proper.

Issue No. 1

In arguing this appeal on issue No. 1 raised above, learned Counsel for the appellant has urged this Court to answer this question affirmatively in favour of the appellant who according to the learned Counsel has done everything required by law to entitle him to judgment at the Court below. Learned appellant’s Counsel in his submission alluded to the document in evidence as Exhibit P. 12, to submit that same was eloquent testimony of the existence of stall named or numbered as NMB/10C at Onitsha main market (among other stalls) to support the contention or claim by the appellant that indeed the said stall was allocated to him. Learned Counsel argued further that Exh. P. 12 being documentary evidence any oral evidence to the contrary as claimed by the Respondent was inconsequential, referring in his brief of argument in this regard to decisions in:

1) Dawodu v. Majolagbe (2001) 4 NWLR (Pt. 703) 234
2) Bunge v. Governor Rivers State (2006) 12 NWLR (Pt. 205) 573, 626-630.
3) Ojoh v. Kemalu (2005) 18 NWLR (Pt. 958) 523, 380.

Contrary to the findings made at the trial Court, it was argued that the existence of stall No. NMB/10C (and not NMB/10GE) was not in doubt, the same having been proved. He referred further to evidence on record of P.W.1, P.W.4 and P.W.5 and Exhibits P1, P2, P3, P10 to submit that Stall No. NMB10/C did not only exist but that same was allocated to the appellant.

On the finding by or at the trial Court that the appellant failed to lead any evidence that he constructed stall No. NMB/10C learned appellant’s Counsel urged the Court to ignore that finding of the trial Court as misplaced in that issues were never joined on the Construction of the said stall rather the existence of same. It was argued in any case by further reference to the amended Statement of Claim at paragraph 4-12 (a) that by those paragraphs, it became apparent that the appellant was given approval by Onitsha Local government to construct stall NMB/10C and that he led evidence on how the construction took place.

Learned appellant’s Counsel argued, rather than for the Respondents to specifically deny those averments, they were hesitant, prevaricated, and finally they entered a general denial. He says this was not the best way to make a traverse over material and essential facts raised in the amended Statement of Claim over whether or not it was the appellant who constructed stall N0. NMB/10C. He argued further that such insufficient denial was no denial at all, the end result of which is that the appellant has proved that he constructed stall No. NMB/10C as no issue was joined over that. Learned Counsel relied on Ibeanu v. Ogboide (1988) 12 NWLR (Pt. 576) page 1.
Learned appellant’s Counsel noted the grievous error on the part of the Court below who failed in its responsibility, from taking a decision over issues joined by the parties in their pleading but unfortunately chose to decide those matters over which no issue was joined by parties.

One area, Learned appellants says, issues were joined between the appellant and the respondents was over the existence of stall No. NMB/10GE. He referred to paragraph 17-23 of the Statement of defence (page 76-80 of Record of appeal) where it was alleged that Defendants were the allottees of stall No. NMB/10GE but which the Appellant in his Reply to Statement of Defence at paragraph 7 traversed to the contrary. According to the Learned Appellants Counsel, the appellant having so traversed, it was incumbent on the Respondent to prove the existence of Stall No. NMB/10GE but they failed.
It was disturbing said the Learned Appellants Counsel, that it was over this same unproven allegation or fact that the trial Court found favour with erroneously though to dismiss Appellant’s case in favour of the Respondents. This conclusion by the trial Court according to Appellant’s Learned Counsel has occasioned a miscarriage of Justice, citing Ibeabu v. Ogbeide (Supra).
Learned Appellant’s Counsel urged this Court finally to resolve this issue in favour of the Appellant.
Learned Respondents’ Counsel has debunked those submissions by the argument he canvassed at page 3-10 of Respondents’ brief of argument.
The burden of providing the physical location of stall NMB/10C according to Learned Counsel for the Respondent was on the Appellant but that he failed to appear in Court to give evidence on this very important aspect of his case.

In the absence of that evidence from Appellant, evidence elicited from or by P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 fell short of proof of the exact location of Stall Numbered NMB/10C at Onitsha Main Market. That submission was made by the Learned Counsel for the Respondents

Learned Respondents’ Counsel Conceded that the plaintiff/appellant may have been granted the authority to construct a stall, but evidence was lacking that the Appellant ever constructed any stall. Consequently the allocation paper issued to him by Onitsha North Local Government was over an empty space. He argued further that the existence of stall NMB/10GE was not in doubt. He referred to evidence of P.W.5, the witness called by the Appellant to submit that the witness has identified the stall albeit, indirectly. That this evidence of P.W.5 coupled with those of the defendants and the witness called by them has established the physical location of stall NMB/10GE, as the market stall in dispute hence the finding made by trial Court is correct that is to say that the structure in dispute is NMB/GE and not NMB/10C, a non-existence stall.

Relying on Exhibits D1-D2k and D3 in relation to market stall NMB/GE, it was argued that the existence of the said stall was a foregone conclusion. Learned Respondents’ Counsel therefore urged this Court to resolve this issue in favour of the Respondent and dismiss the appeal.
The Judgment appealed against runs from pages 180 – through 190 of the record of appeal. It is important to note some significant findings of fact made at the Court below at the commencement of that judgment, where the Court found as a fact that:

“The dispute herein is over a Market Stall at the Onitsha Main Market. Both parties know the stall. They have physically engaged themselves at the stall so there is no dispute as to the physical stall. The dispute stems from the fact that whilst the plaintiff calls the stall NMB/10C, the defendants call it NMB/10GE. The plaintiff has a letter of allocation showing he is the lawful allotee of stall No. NMB/10C. The 1st defendant has a letter of allocation showing he is the lawful allotee of NMB/10GE. The issue is this, that physical stall which the parties claim, is it called NMB/10C or NMB/10GE? It is not disputed by the parties that the numbering is done by the Local Government which owns all the stall at the Market. It is the same Local Government that issued letters of allocation to the parties.”

It follows from the above finding at the Court below that parties on both sides are ad idem over the physical location of and the identity of the stall in dispute between them. The only difference between the parties on either side on this is as to the nomenclature ascribed by each side to the market stall.
This finding made by the Court below is significant in that it is a confirmation of aspects of evidence of witnesses on record.

I seek your indulgence, My Lords to refer to evidence of P.W.1 at page 133 of the record of appeal where he testified and said thus:-

“The defendant then took over the shop and space and started trading therein. Having demolished shop the land became an open space again and that is where the defendants now trade —”

In the amended statement of claim the plaintiff had averred paragraph 25 that:-

“The plaintiff avers that instead of the defendants to heed to the warning of the police they started to make use of the stall in its demolished state by displaying their wares and or articles of trade thereat…”

D.W.3 in the same vein at page 180 of the record of appeal had this to say in answer to question put to him thus:-

“I don’t know his shop or any stall No. NMB/10C. My shop does not belong to Ebenezer Okoye even though he claim it. It is this my shop that Ebenezer Okoye claim to be NMB/10C…”

By the foregoing and by the finding of the Court below the identity and the location of the shop or market stall in dispute is known notwithstanding the differences in the nomenclature.

Now, what is the claim before the trial Court? Plaintiff’s claim relative to the market stall in dispute is at pages 104-105 of the record and referred to earlier. But by way of emphasis the claim is for:-
a) A declaration that he was only allocated market stall No. NMB/10C at Onitsha Main Market and the allocation was still valid and subsisting.
b) That the entry into the said stall by the defendants and the demolition of same and the carting away of goods belonging to plaintiff was illegal and wrongful.
The plaintiff/appellant has sought other reliefs but I stop here for now to pose this question:- What evidence was led by the plaintiff/appellant in proof?

Answer:- plaintiff adduced evidence through P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5. He did not stop there. He tendered in addition Exhibits P1. P2, P3, P4, P5, P6, P7, P8, P9, P10, P11, P12 among others:-
Exhibit P1, is the letter of allocation issued to the plaintiff/appellant by Onitsha North Local government on the 14th October, 1994.
Exhibit P2 is the application of plaintiff to Onitsha North Local Government to construct a stall at the Main Market. It is dated 10th October, 1994 and addressed to the Chairman of Onitsha North Local Government.
Exhibit P3 and P4 are stallage Receipts issued to the plaintiff/appellant at different periods.

Exhibit P5 – is a copy of the letter of Chairman Onitsha North Local government to the Area Commander dated 14/2/96.
Exhibit P6 is a Court process.
Exhibit P7 is the Civil subpoena commanding the Chairman Onitsha Local Government to attend Court over Suit No. O/184/96 and same was issued on 11-5-2006.
Exhibit P8 is the Certified True Copy (CTC) of Exhibit P2.
Exhibit P9 is the Certified True Copy (CTC) of Exhibit P5.
Exhibit P10 is Onitsha North Local government – Market ledger.
Exhibit P11 is the civil subpoena directed on Engr. A. I. Ekwealor.
Exhibit P12 is the Certified True Copy (CTC) of plan of Police Post Stall at Main Market Onitsha.

The Court had no difficulty when it found as a fact based on Exhibit P1 that Appellant was given approval to construct a stall.
The Court below however found and held that no such stall was constructed by the Appellant, as no evidence of construction was led by him. The Court thus over looked evidence of P.W.1 in that regard. Court below further held that absence of the appellant from giving evidence of construction of stall negatively impacted on his case.
Be it noted that to succeed in a case like this a plaintiff or litigant is not bound to appear in Court to testify in the case instituted by him. Unless if by the peculiar facts of the case the fact in issue is known to him alone or the law requires the presence of such litigant. In that case his attendance and his evidence become inevitable. What is important is to lead cogent and credible evidence and evidence of relevant witness will suffice. Materiality of evidence matters a lot. It is not the quantum of evidence that matters. See: Agbi v. Ogbeh 2006 11 NWLR (Pt. 990) 65, Archibong v. State (2006) 14 NWLR (Pt. 1000) 349. Section 200 of Evidence Act, 2011 does not require the calling of any particular number of witnesses as to insist that evidence of Plaintiff must be called to add to the number. Cases are never won or lost by the number of witnesses a party can call. That is not all.
The Court below not only did it belittle the evidence of P.W.1 on the issue of the construction of market stall No. NMB/10C, the Court completely ignored Exhibit P9, the letter written by Chairman, Onitsha North Local Government to the Area Commander by which he stated thus:-
“I have to confirm that the authority with which those stalls were demolished is still questionable as such was not issued by this office.”

This evidence in a documented form is a hanger upon which oral evidence on the same point can be assessed. 1) Bunge v. Government of River State (2006) 12 NWLR (Pt. 995) 573, 626-630; Dawodu v. Masolagbe (2001) 4 NWLR (Pt. 703) 234.
So, assuming that the oral testimony of P.W.1 on this point was not good enough the fact of the existence of that evidence in documented form should sway the mind of the trial Court. But the Court ignored Exhibit P9.
The point I want to make here is that if there had been no construction of a stall then there could have been no demolition. The fact on the ground however reveal that there was such demolition of stall No. NMB/10C to render the finding at the trial Court to the contrary most perverse and unreasonable. A finding is perverse where it runs counter to evidence adduced. It is perverse where the trial Court shut its eyes to the obvious – see: Atolegbe v. Shoun (1985) 1 NWLR (Pt. 2) 260; State v. Ajie (200) 11 NWLR (Pt. 678) 34.
It is also gathered going by Exhibit P9 that market stall No. NMB/10C at Onitsha Main Market was allocated to Mr. Ebenezer Okoye, the Appellant herein. An empty space cannot by any stretch of imagination on the evidence before the Court be referred to as a “stall” as the Court below wants this Court to believe. Therefore, by the combined evidence of P.W.1, P.W.2, P.W.3, Exhibits P1, P2, P9 and Exhibit P12 establish to any satisfaction that not only was approval for the construction of a stall number NMB/10C given the said stall was brought into existence but which defendants/Respondents also pulled down.
Exhibit P12 standing on its own does not translate into physical stall No. NMB/10C. It is only a plan or design made for the numerous stalls so labeled and identified by that document, one of which is stall N0. NMB/10C. But Exhibit P12 taken along with other evidence i.e. Exhibit P9, P10, P1, Evidence of P.W.1 and P.W.3 undoubtedly fixed stall NMB/10C to a particular spot at the Onitsha Main Market, the same having been constructed and allotted to the Appellant.

Coming back to the issue of construction of stall No. NMB/10C, the question is: were issues really joined over the construction of stall No. NMB/10C? Let us take another look at the state of pleadings on this point by parties on both sides. I refer to paragraphs 4-12 (a) of the amended statement of claim thus:

“4. The plaintiff avers that time in 1994, (10th October, 1994 to be precised) he applied to the Onitsha North Local Government for approval, to construct a stall at the main market, Onitsha. The application for approval is hereby pleaded.

5. The plaintiff avers that his application dated 10th October, 1994, was duly processed by all the relevant and appropriate authorities of Onitsha North Local Government and after processing, was approved. The plaintiff avers that with the approval, i.e. commenced building and formal allocation paper respecting the allocation of stall NO. NMB/10C at the main market, Onitsha, which he constructed was given to him by the Onitsha North Local government. A copy of the said allocation paper is hereby leaded and shall be relied upon at the trial.

6. The plaintiff avers that he used his said stall No. NMB/10C main market, Onitsha, which is situate at police post line of the main market, principally as a packing store but carried on his business there.

7. The plaintiff avers that it was that portion of the empty space which the Onitsha North Local Government gave him approval to construct that was named NMB/10C and was covered by the allocation paper dated 14th October, 1994.

8. The plaintiff avers that his building work which had reached advanced stage after the approval and formal allocation paper given to him was temporarily suspended on the directives of the Onitsha markets interim management committee which was appointed by the Anambra State Government to take charge of the Onitsha markets after the OMATA crisis.

9. The plaintiff avers that while he waited for the stop work directive to be lifted, he started to use his said stall No. NMB/10C main market, Onitsha, in the nature it was then, for his trading activities without let or hindrance from any body including the defendants.

10. The plaintiff avers that later in 1995, the Onitsha North Local government, the owners of the main market, Onitsha, directed that all such suspended works in the markets be completed. The plaintiff completed his said stall under the supervision of the Onitsha North Local Government, Engineer. The plaintiff hereby plead, the drawing/plan showing the design and the layout of the stalls and numberings at the said police post line main market made by the office of the town engineer.

11. The plaintiff avers that upon completion of his stall, he resumed normal possession, use an occupation of his stall, by using same both as his parking store and for trading. The plaintiff was sponsored and financed both in application building and the allocation of the stall by his master, Clemson W.A. Ltd who also set up the business for him.

12. That plaintiff avers that he paid his stallage fees over his said stall No. NMB/10C regularly and paid for January – December, 1995 and January to December, 1996, to the Onitsha North Local Government. The stall payment receipts issued to him evidencing the above payments are hereby pleaded. The plaintiffs have continued to pay until date the stallage fees and receipts evidencing such payment are pleaded.

12a. The plaintiff avers that his name is in the ledger of the Onitsha North Local government as the allotee and the person who pays stallage fees for stall No. NMB/10C police post line, main market, Onitsha. The ledger is hereby pleaded.”

I can also refer to the traverse at paragraph 4 of the Statement of defence thus:-

“The defendants further state they have nothing to do with it any stall known as NMB/10C and. They deny paragraphs 4, 5, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17 of the statement of claim. The defendants put the plaintiff to the strictest proof of the averments thereof.”

Paragraph 4 of the Statement of defence is a general traverse to material issues or points raised at paragraph 4-12 (a) of the amended Statement of Claim.
Those averments in the amended state of claim referred to above particularly those at paragraphs 5, 8 and 10 are material facts on points of substance and to join issues over those facts there must be specific and radical denial of the facts or points of substance.

Order 15 Rule 5 (1) (2) of the High Court of Anambra State (Civil Procedure) Rules 2006 provide thus:-

“5(1) Every allegation of fact in any pleadings if not specifically denied in the pleadings of the opposite party shall be taken as admitted except as against a person under legal disability.

(2) A general denial in any pleadings shall not operate as denial of any specific fact in the pleadings of the opposing party.”
See:1. Bamgbogbun v. Attonda (2010) 6 SCNJ 2. Jadasm Ltd v. Oguns Electrical (2004) 2 NWLR (Pt. 853) 183. 3. ACE Jimona Ltd v. Nigeria Electrical Coy. Ltd (1966) 1 All NLR 122. So far as paragraphs 5, 8 and 10 of the Amended State of Claim on the question of the building and construction by the plaintiff of a stall were not specifically denied, they are taken as admitted and the appellant as Plaintiff was absolved from further duty of leading any evidence thereof in proof. See: Jadcon Ltd v. Oguns Electricals (supra).
The Appellant never the less called evidence, abundans Coutela non nocet in terms of evidence of P.W.1, Exhibit P9 Exhibit p.2, Exhibit P1 etc.

In another but related aspect of the findings made at the Court below at that same page 186 of the Record of appeal, the Court also found or held that:-

“The 1st defendant has a letter of allocation showing he is the lawful allotte of NMB/10GE. The issue is this, that physical stall which the parties claim is it called NMB/10C or NMB/10GE?….”

If I may ask, who told the Court below that the Respondent made a claim to market stall NMB/10GE? Was there a claim or counter claim before the Court below to that effect giving rise to that finding? I have gone through the record of appeal. I cannot find any such claim being made by the Respondents as Defendants at the Court below.

Rules of Court are made to guide the litigants and also the operators of the system. The High Court Civil Procedure Rules of Anambra State 1988 was in force as at the date action was instituted in this case in that Court.
Order 9 Rule 13 provides thus:

“13. Where any defendant seeks to rely upon any facts, as supporting a right of set-off or counter-claim, he shall, in his statement of defence, state specifically that he does so by way of set-off or counter-claim, and the particulars of such set-off or counter-claim shall be given.”

Similarly, rule 6 of Order 9 provides:

“6. Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and may also ask for general relief, and the same rule shall apply to any counter-claim made or relief claimed by the defendant in his defence”

So by the foregoing Rules, action can be maintained in the High Court vide the Writ of Summons taken out and filed along with a claim or by way of a counter claim being filed in an existing action. Which ever of the two procedures above is adopted, there must be a claim or counter-claim duly entered deserving some reliefs of some kind being given. The Court below in its findings, surreptitiously awarded to the Respondents stall No. NMB/10GE which the Respondent neither claimed nor counter claim for in the action. This can be discerned from the body of judgment delivered at the Court below. For instance, at page 188 of the record, the trial court observed:-

“It is to be noted that none of the witnesses from the local government denied that stall No. NMB/10GE exists, and at page 190 the trial Court observed:-

“In other words they led evidence to show that the physical stall in dispute is No. NMB/10GE and not NMB 10C.”
There has to be a claim or counter-claim as to the existence of stall No. NMB/10GE and thereafter evidence is led to prove its existence. Such evidence must be direct evidence in line with Section 126 of Evidence Act, 2011 which provides:-

“126. Subject to the provisions of part III, oral evidence shall, in all cases whatever, be direct if it refers to:-
“(a) a fact which could be seen, it must be the evidence of a witness who says he saw that fact;
(b) to a fact which could be heard, it must be the evidence of a witness who says he heard that fact
(c) to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner;
(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the persons who holds that opinion on those grounds.”
Evidence of the 2 (two) Local Government staff called by the Plaintiff/Appellant and relied upon by trial Court on the existence of stall No. NMB/10GE was not evidence directly coming from those witnesses as envisaged by provisions referred to above. Such evidence would not establish the existence of stall N0. NMB/10GE.
But assuming there was a claim or counter-claim as to the existence of stall No. NMB/10GE based on the letter of allocation dated 10/3/95 i.e. Exhibit D2, then the principle enunciated in Nigerian Engineering Works Ltd v. Deunep Ltd & Attorney-General of Rivers State (2001) 18 NWLR (Pt. 746) 726, comes to play, that is, the letter of allocation which is first in time will prevail. This has to be so in view of the finding made at the trial Court that stall No. NMB/10C and NMB/10GE is one and the same stall.
The letter of allocation issued to the appellant in terms of Exhibit P1 is dated 14th October, 1994. The allocation paper issued to the Respondent in terms of Exhibit D2 is dated 10/3/95. Thus Exhibit P1 is first in line and same prevails over Exhibit D2.
On the evidence on record, it is the Respondents who are the transgressors, who trespassed into the market stall No. NMB/10C lawfully in possession of the Appellant to confront him. Not only did the Respondents chase out the Appellant, they also pulled down his shop or stall No. NMB/10C, built by him, which is the stall in dispute.

I now proceed to Issue No. 2 which is whether the Court below was right to dismiss Appellant’s claim for special and general damages. To the appellant, the Court below wrongly dismissed his claim and indeed his claim to special and general damages having regards to the evidence placed before it. It is contended by learned Counsel for the appellant that the latter, on the evidence presented by him was entitled to an order of special and general damages being made in favour of the appellant.
It was argued per contra that the appellant was not entitled to either special or general damages. Learned respondent’s Counsel argued that the appellant did not show face at the hearing of his case to testify on material issues of fact especially as they relate to:-
1) The demolition of his stall.
2) The carting away of his goods or wares.
3) The nature of those goods and wares involved etc.
As regards evidence called by the appellant on fact of demolition of stall and carting away of goods belonging to the appellant, it was argued that evidence of P.W.1 and P.W.3 were contradictory on the issue of demolition and moreover since there was no evidence of construction of any stall by the appellant, any claim to damages must fail. It was further argued that to succeed in special damages being made there must be evidence as to the worth of those goods allegedly carted away, must specifically be proved.
It was further argued that the only evidence of Iron door worth N15,000.00, blocks, cement as decking worth N60,000.00 were given by oral evidence of P.W.1 and same were not backed up by Receipts. In the absence of all these, it was argued, the claim to special and general damages should fail.
I want to adopt here, under issue N0. 2, my reasoning and conclusions in relation to Issue No. 1 above. I want to reiterate in particular the fact of demolition of stall No. NMB/10C was established and proved and that the respondents are held responsible for the destruction of stall NMB/10C.
However to succeed in special and general damages being awarded, there must be evidence on record to support such award as the burden of proof remain with Appellant to prove by evidence of his entitlement to such an award.
Special damage means the particular damage (beyond general damage) which results from the particular circumstance of the case, and of the plaintiff’s claim to be compensated, for which he sought to give warning in his pleadings in other that there may be no surprise at the trial. See: IBWA (Now Afribank Plc) v. Hotel Metropole Ltd & Anor (2010) LPELR-4272 (CA) P. 31 paragraph B – D. Special damages must be strictly proved. By strict proof it means no more than that the evidence must consist of particular losses known and established or are ascertainable before trial. See: Ojeahere v. Alakija (2011) LPELR-4701 (CA); Imana v. Robinson (1979) 3-4 SC 1.
Appellant’s claim to special damages is at paragraph 20 (a) (b) (c) and paragraph 28(b)(c) I, ii, iii, iv of the amended statement of claim.
Evidence led in support of claim to special damages came from P.W.1. He is not the plaintiff (Appellant) who is seized of the particular knowledge of facts involved. He did not tender any receipts to back up the claim to each Head of claim to special damage, even though tendering of receipts can be dispensed with under special circumstance in the assessment of claim for special damages. See: G.K.F. Investment Nig. Ltd. v. Nigeria Telecommunication Ltd. (2009) 7 SCNJ 92, 112. P.W.1 may be the sponsor of the project – market stall No. NMB/10C but his evidence on this point which is of general nature, did not meet with the requirement of strict proof. See: Anyawu v. Uzowuaka (2009) 7 SCNJ 29, 50. This is where evidence of the person who is seized of the particular facts, the appellant herein, becomes imperative. He was not forthcoming. Thus, aspect of this claim remain unproven, even at the Court below.
General damages on the other hand are such as would be presumed to be direct natural or probable consequence of the act complained of, for instance as in this case on appeal, the loss of use of stall NMB/10C following the demolition of the same by Respondent, pain and suffering for the loss, loss of earning etc are all natural consequences which flow directly from the unlawful demolition of stall No. NMB/10C. Such losses can be compensated for by the award of general damages.

I can now turn to Issue No. 3 which is whether there was proper evaluation of the case put forward by the parties on both sides at the Court below.
The submission made in this regard for the appellant is as contained at pages 15-16 of the brief of argument for the appellant. Learned appellant’s Counsel says there was no proper evaluation of evidence at the trial Court. Learned counsel for the Respondent arguing per contra at pages 13-17 of his brief, is of the view that proper evaluation of evidence had been made at the Lower Court.
I only need to adopt my conclusions under issue No. 1 above for issue No. 3.
Had there been proper evaluation of evidence at that level the court below would have come to a different conclusion and found for the Appellant, the Plaintiff at the trial Court.
The Court below ignored Exhibits P9, P10 among other exhibits tendered. The Court ignored evidence of P.W.1, the witness who saw the destruction take place. In its bid to do away with the case for the plaintiff, the Court below, effortlessly downgraded that evidence of P.W.1, saying he was inconsistent in his account of how the demolition take place. But given the fact that stall No. NMB/10C was demolished as established by Exhibit P9 whatever discrepancy in the account given by P.W.1 as to how that demolition took place, cannot be substantial to dislodge that fact. The superiority of Exhibit P1 over Exhibit D2, the former being first in time, is one other area the Court below failed to advert its mind to especially so that the Court made a finding that the parties were fighting over one and the same market stall. This issue is similarly resolved in favour of the appellant.

Now to Issue No. 4, on the question of cost. The issue is whether cost awarded in favour of respondent in the sum of N50,000.00 is proper?
Flowing from my discourse on the preceding issues all of which favour the appellant, issue No. 4 on cost naturally resolves itself in that the Respondents against whom Judgment ought to have been given, are not entitled to award any cost, rather, the Appellant (Plaintiff). Hence issue No. 4 on cost is resolved in favour of the appellant and same is hereby ordered.
The appeal, on the whole is allowed. The judgment delivered at Anambra State High Court sitting in Onitsha in Suit No. 0/184/96 on 31st day of October 2006, is set aside and in its stead is entered this Judgment granting Plaintiff’s/Appellant’s claims in the manner stated hereunder; that is to say way of:-
(a) A declaration that the Plaintiff is the person duly allocated by the Onitsha North Local Government stall No. NMB/10C at the Main Market Onitsha at the Police line and that the said allocation is still valid and subsisting.
(b) A declaration that the defendants’ (Respondents’) entry into stall No. NMB/10C and the demolition of the said stall is illegal, wrongful and an infringement of the said stall No. NMB/10C at the Main Market, Onitsha duly allocated to the Plaintiff/Appellant.
(c) N500,000 (Five Hundred Thousand Naira) General damages for trespass
(d) An Injunction is Ordered restraining the defendants/Respondents, their servants, agents, privies and associates from further trespassing or in any manner whatsoever interfere or disturb the Plaintiff’s/Appellant’s possessory and occupational rights, use and enjoyment of his duly allocated stall No. NMB/10C at the Main Market, Onitsha.
(e) Cost is assessed in the sum of N50,000.00 against the Defendants/Respondents.

That is the Order and Judgment.

AMIRU SANUSI, J.C.A.: The judgment just delivered by my learned brother Hussaini, JCA was made available to me before now, His lordship has ably and thoroughly addressed all the salient issues canvassed by learned counsel to the parties. I am in entire agreement with his lordship’s reasoning and conclusion he reached.
I also endorse all the orders made in the lead judgment.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my learned brother SAIDU TANKO HUSSAINI, JCA. I agree with the reasoning and conclusions therein. I also allow this appeal and agree with the orders therein.

Appearances

H. N. C. Moghalu (with C. C. J. Okwosa)For Appellant

AND

Chief Ejike C. J. EzenwaFor Respondent