EMEKA EZENWUNNE v. PATIENCE UZOUKWU & ORS
(2018)LCN/12358(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 14th day of February, 2018
CA/E/416/2008
RATIO
LAND LAW: WHERE LICENSE IS GIVEN TO AN ALLOTEE
“The allocation of a market stall under the Bye-law donates licence to the allottee in respect of the stall allocated similar to the relationship between a landlord and tenant. It does not confer proprietary right like certificate of occupancy. The ownership of the property still remains with the allocating authority that is the Local Government that allocates the stalls.” PER HUSSEIN MUKHTAR, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
EMEKA EZENWUNNE Appellant(s)
AND
1. PATIENCE UZOUKWU
2. EMMA EZIUZOR
3. JOHNSON ONYEKA
4. IKECHUKWU OKAFOR
5. ONITSHA NORTH LOCAL GOVT Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Judgment of the Anambra State High Court sitting at Onitsha, delivered by C. O. Nweke, J. on 2nd November, 2007 in Suit No. 0/107/96.
The action was initiated by 1st Respondent culminating into this appeal wherein the following reliefs were sought for:
(i) A Declaration that stalls No. NMB 25A, NMB 25B and NMB 24 are one and the same stall known as AJ/27A and that same belonged to the Plaintiff.
(ii) A Declaration that any purported allocation of the Plaintiff’s stall AJ/27A renamed NMB 24, NMB 25A and NMB 25B to the 1st – 4th defendants are unlawful illegal and void.
(iii) A Declaration that before the Plaintiff is dispossessed of the stall No. AJ/27 A, there must first be a revocation order by the Local Government authority.
(iv) An Order of injunction restraining the defendants, their servants, agents, and/or assigns from committing further acts of trespass on the land or in any manner disturbing the plaintiffs’ ownership and possession of the said land.
The 1st Respondent called two witnesses and tendered some documents in the prosecution of his claim. The Appellant, who was the 1st Defendant in the suit, testified for himself and tendered some documents.
The case of the 1st Respondent at the trial Court was that the Onitsha North Local Government (5th Respondent) allocated stall No. AJ/27A to her. Subsequently, in 1993, the 5th Respondent (Onitsha North Local Government) told her that the market was going to be reconstructed to prevent fire outbreak and asked her to vacate the her stall, which was to be demolished. The 1st Respondent vacated with a promise by 5th Respondent that she would be allocated a new stall after reconstruction. When the reconstruction of the market was completed, the 1st Respondent was indeed allocated a new stall by the 5th Respondent. However, the 1st Respondent claimed three stalls which she said were carved out of her demolished former stall No. AJ/27A. The three stalls claimed by the 1st Respondent are NMB/24, NMB/25A and NMB/25B.
The 1st Respondent asserted that the 5th Respondent failed to keep its promise to give her back the stalls but rather allocated them to the Appellant and 2nd – 4th Respondents. The 1st Respondent tendered the Allocation paper Exhibit A among other documents showing that the 5th Respondent (Onitsha North Local Government) has officially allocated stall NMB/24B to the 1st Respondent. The Appellant argued that he was not aware of any agreement between the 1st Respondent and the 5th Respondent. In respect of stall No. AJ/27 A and if any he was never part of it.
The trial Court in its Judgment delivered on 2nd November, 2007 held that the allocation paper Exhibit A issued to the 1st Respondent creates a contractual obligation between the parties and that same cannot be repudiated without a valid revocation order. Notwithstanding the finding that stall No. NMB/24 was genuinely allocated to the Appellant, the lower Court dismissed the Appellant’s counter-claim holding that the allocation made to the Appellant was unlawful.
Being dissatisfied with the judgment of the trial Court, the Appellant filed a Notice of Appeal on 7th November, 2007. The Appellant subsequently filled additional grounds of appeal dated 8th February, 2016 and filled on the same day. The five grounds upon which this appeal is premised are reproduced thus:
GROUND ONE:
The Learned trial Judge was wrong when he held in part in his judgment, appearing at page 315 of the Record of Appeal as follows:
“And since the Plaintiff has not violated any of the terms contained in her allocation paper and since the allocation had not been revoked, she still has a lawful interest in the stall.”
PARTICULARS:
i. The Learned trial Judge in coming to the above determination failed to advert to the following:-
a. That the allocation paper Exhibit A given to the 1st Respondent does not confer any proprietary respect.
b. That the allocation paper Exhibit A confers on the 1st Respondent no more right than that of a mere licensee.
c. That the right conferred by the said allocation paper Exhibit A is one that can be determinable at will.
d. That the said right conferred by the allocation paper Exhibit A to the 1st Respondent was mutually extinguished by the 1st and 5th Respondents.
ii. The failure on the part of the trial Judge to appreciate the extent and scope of the right or interest conferred by the allocation paper Exhibit A on the 1st Respondent influenced her in the decision it reached in awarding judgment to the said 1st Respondent.
GROUND TWO:
The Learned trial Judge was wrong when he held in his judgment, appearing at page 318 of the Record of Appeal as follows:
“The Plaintiffs interest in stall AJ/27A entitles her to have her allocation validly revoked before she could be dispossessed of it. To that extent I also agree with the Learned Counsel to the 2nd Defendant when he said that whether it was an open space is immaterial under the circumstances. What matters is that she has a valid allocation paper and was trading in the place allocated to her. It is also in evidence that she had a structure there which was demolished before the new structures were put in place.
Nobody has also refute the claim that she was promised to be reinstated after the reconstruction which the 5th defendant failed to do”
PARTICULARS:
i. The trial Court failed to appreciate that the alleged breach of the purported contract in the allocation paper Exhibit A did not make the allocation of stall NMB 24 to the Appellant unlawful.
ii. The trial Court ought to have advised itself that the breach of the said contract in Exhibit A can only attract damages against the Onitsha North Local Government (the 5th Respondent).
iii. The trial Court in determining the instant action failed to advert that the reconstruction of the stall space AJ/27 A by the 5th Respondent into stall NMB 24, NMB 25A and NMB 25B and re-allocating the new stalls had determined the contract in Exhibit A.
iii. The approach adopted by the Court below in treating the allocation of new stall No. NMB 24 to the Appellant as being unlawful was wrong thereby occasioned a grave miscarriage of justice.
GROUND THREE
The Court below was wrong in its inclination that re-allocating of new stalls carved out of the former stall No. AJ/27 A, Exhibit A at a time when the said Exhibit A was not revoked was unlawful.
PARTICULARS
i. The Court below failed to appreciate that there is no law that was breached in the re-allocation of the new stalls as to render the allocation of the stall No. NMB 24 made to the Appellant by the 5th Respondent unlawful.
ii. The Court below failed to draw a distinction as between breach of contract or contravention of an existing laws prohibiting an act.
iii. The failure of the Court below to appreciate the facts averred in paragraphs (i) and (ii) above wrongly led the Court below in coming to the conclusion that the allocation of stall No. NMB 24 to the Appellant by the 5th Respondent as unlawful, thereby leading to travesty of justice.
GROUND FOUR
The Learned trial Judge was wrong when he entered judgment for the 1st Respondent when in the first instant the 1st Respondent did not establish his claim.
PARTICULARS
i. The learned tribunal Judge wrongly entered judgment for the 1st Respondent despite the facts that the 1st Respondent failed to establish his claim to the said shop NMB24.
ii. The learned trial Judge wrongly entered judgment against the Appellant despite the fact that the Appellant established before the Court below that he was entitled to be awarded the shop.
iii. The decision of the trial Court occasioned a grave miscarriage of justice against the Appellant.
GROUND FIVE:
The Learned trial Judge was wrong when he dismissed the Appellant’s counter-claim and turn around to order the 5th Respondent to give the Appellant another shop.
PARTICULARS
i. The Court below found as a fact that the Appellant was appropriately allocated the said shop NMB 24 by the 5th Respondent.
ii. Notwithstanding the said finding the Court below proceeded to enter judgment for the 1st Respondent.
iii. The decision of the Court below occasioned a grave miscarriage of justice.
The lone issue formulated by the learned counsel for the Appellant from the five grounds of appeal is as follows:
Whether in all the circumstances of this Case, the Court below was right in its approach to the documents tendered particularly Exhibit A, evidence led and in its findings, pronouncements and conclusion by which it entered judgment in favour of the 1st Respondent and dismissed the Appellant’s Counter-claim?
In a different language the learned counsel for the 1st Respondent couched the issue thus:
Whether the trial Court was right when it held that stalls NMB/24, NMB/25A and NMB/25B are one and the same stall known as AJ/27A and belonging to the plaintiff/1st respondent having been lawfully allocated to her and that the purported allocations of the plaintiff’s stall AJ/27A renamed NMB/24, NMB/25A and NMB/25B to 1st ? 4th Defendants are unlawful, illegal and void.
In a more brief a style, the learned counsel for the 2nd Respondent couched the issue for determination as follows:
Whether the position of the law supports the judgment of the trial Court?
The issue raised by each party is more or less the same in different drafting styles, the 1st Respondent?s being more succinct is adopted for the determination of this appeal as re-couched thus:
Whether the trial Court was right when it held that stalls NMB/24, NMB/25A and NMB/25B are one and the same stall known as AJ/27A and belonging to the plaintiff/1st respondent and thereby rendering the allocations of stall AJ/27A renamed NMB/24, NMB/25A and NMB/25B to 1st – 4th Defendants as unlawful, null and void?
The learned counsel for the Appellant argued that the Court below had erroneously held that the allocation paper Exhibit A issued to the 1st Respondent by the 5th Respondent created a contractual obligation between them and that the 1st Respondent can only be dispossessed of the said allocation by a valid revocation order. The trial Court went further to hold that since no valid revocation order was given to the 1st Respondent in respect of the said StaII AJ/27 A allocated to her, that the subsequent allocation of stalls No. NMB/24, NMB/25A and NMB/25B carved out of the demolished stall No. AJ/27A, to the Appellant and the 2nd – 4th respondents is unlawful.
It was further argued that Exhibit A, which was the allocation paper issued to the 1st Respondent in respect of stall No. AJ/27 A, did not create a contractual obligation between the parties thereto.
It was submitted for the Appellant that Exhibit A does not confer title or any proprietary rights on the 1st Respondent, who was simply a license, having permission to use the market stall. For avoidance of doubt, the said Exhibit A is reproduced thus:
“I am happy to inform you that you have been allocated Stall No. AJ/27 A (New Market Road Onitsha) at Onitsha Main Market, Onitsha. You Should report to the Market Superintendent i/c Onitsha Main Market with this allocation paper for registration in the official market ledger. The stallage fee is N40.00 (forty Naira) per month or N480.00 (Four hundred and eighty naira annually). You are expected to pay your stallage fee promptly and to comply with all market regulations, The Local Government reserved the rights to revoke this allocation if you breach any of the laid down conditions.
Thank you for your co-operation.
(Signed)
Chike Chinyelu
Chairman
Onitsha North Local Government.”
It was submitted for the Appellants that the wordings of Exhibit A heavily relied upon by the Court below in its judgment, signifies a mere permission or licence which does not confer any proprietary rights. It further submitted that the stalls and market activities in the Onitsha Main Market as well as other markets in Onitsha are controlled and guided by the Onitsha Local Government {Markets} Bye-law, 1977. Section 5(1) of the Onitsha Local Government (Markets) Bye-Law 1977, which provides as follows:
5 (1): Any person may apply to the council for a license to occupy a stall in a market
It was further argued for the Appellant that an allocation of market stall is no more than a mere license. The Black Law Dictionary, 6th Edition at pages 919 – 920 defines license as:
“A personal privilege to do some particular act or series of acts on land without possessing any estate or interest therein and is ordinarily revocable at the will of the licensor and is not assignable.
A license is not a contract between the state and the licensee, but is a mere personal permit … Neither is it a property or property right.”
See the Supreme Court pronouncement in the case of Kari Vs Ganaram (1997) 2 NWLR (Pt 488) 380 at 397 thus:
“… What is a license? The word “license” is defined in Black’s Law Dictionary as meaning:
‘The permission by competent authority to do an act which without such permission would be illegal, a trespass or a tort.
It is ordinarily considered to be a mere personal or revocable privilege to permit an act or series of acts on the land of another. It is a privilege to go on premises for a certain purpose but does not operate to confer on or vest in the licensee any title, interest or estate in such property.”
It was further submitted for the Appellant that the Court below did not also consider the right of the Appellant as the innocent third party who was genuinely allocated the said stall No. NMB/24 and who was not aware of any relationship between the 1st and 5th respondent at the time of the allocation. However, the Court below, in its judgment ordered thus:
” the 5th defendant is hereby ordered to relocate the 1st and 2nd defendants by giving them alternative allocation of stalls.”
It was finally submitted for the Appellant that the failure of the Court below to consider the interest of the Appellant was tantamount to a miscarriage of justice. The Court was urged to resolve the sole issue in favour of the Appellant and allow the appeal.
The learned counsel for the 1st Respondent referred to the Appellant’s contention that the Allocation paper Exhibit A issued to the 1st respondent for the allocation of stall No: AJ/27A did not create any contract between the 1st respondent and 5th respondent. He referred to the contents of the allocation paper (Exhibit A) granted to the 1st respondent by the 5th respondent for allocation of stall No: AJ/27A from where stalls NMB24, NMB25A and NMB25B were allegedly created and allocated to the appellant and 2nd to 4th respondents and argued that it supports the findings of the Court below regarding the existence of contractual obligation between the 1st and 5th respondents to justify the orders of the trial Court in its judgment being challenged by the appellant in this appeal. (See pages 316 to 317 of the record). He urged this Court to sustain the lower Court’s findings and resolution thus:-
“The defendants had argued that the allocation made to the plaintiff is a mere license. The plaintiff is not entitled to any notice of revocation. The 1st defendant’s (Appellant’s) Counsel argued that no obligation was created between the plaintiff and the 5th defendant as the 5th defendant can revoke the license at will. The plaintiff tendered Exhibit A which document allocated AJ/27A to her. By Exhibit A, a contract was created between the 5th defendant and the plaintiff. In Exhibit A the terms for revoking the allocation were stated.
The plaintiff attached Exhibits 8 – 89 which are receipts issued to her by the Onitsha Local Government upon payment of stallage fees. Our contention is that a contract was created by Exhibit A between the plaintiff and the 5th defendant. It does not lie in the mouth of the 1st defendant’s Counsel to call the plaintiff a mere licensee who is not entitled to a revocation order.
I agree that the 5th defendant is authorized by paragraph 1(e) of the 4th Schedule to the Nigerian Constitution to regulate markets. He was not authorized to arbitrarily deal with the plaintiff. I also agree that the plaintiff has no certificate of occupancy to the stall AJ/27A but the allocation paper which entitles her to even transfer her right to another until revoked.”
It was argued for the 1st Respondent that the foregoing holding of the Court below remains unassailable. The learned counsel for the 1st Respondent submitted that Exhibit A created a contract between the 1st respondent over stall No: AJ/27A and that from the contents of Exhibit A there is an obligation to do a particular thing by the 1st respondent over the allocation of AJ/27A to her through Exhibit A. From Exhibit A the 1st respondent was informed of the allocation of stall No: AJ/27A to her by the 5th respondent, which incorporates the following terms:
(a) 1st respondent is informed of the allocation of stall No: AJ/27A to her by the 5th respondent through Exhibit A.
(b) She was directed to register her allocation paper with the market ledger.
(c) She was informed of the payment of N40.00 (Forty Naira) stallage fees every month.
(d) The 1st respondent was further directed and reminded of the need to be paying her stallage fees promptly and complying with the market regulations.
(e) The 1st respondent was further reminded of the consequences of non compliance of the above market regulations.
It was submitted for the 1st respondent that the nature of the transaction between the 1st respondent and 5th respondent over stall AJ/27A gives rise to a legal relationship consisting of mutual rights and duties.
The position of the law is that in deciding the terms of a contract or relationship between the agreeing parties, it is necessary to look at the documents passing between the parties and the conduct of the parties. In Diamond Bank Ltd Vs. Ugochukwu (2008) 1 NWLR (Pt 1067) Plat pp 23 -24. Rhodes – Vivour, J.C.A (as he then was) observed thus:-
“… In deciding the terms of a contract or what was agreed by the parties it is always better to look at all the documents passing between the parties and glean from them or from the conduct of the parties whether they were ad idem on all material points.”
It is submitted for the 1st respondent that Exhibit A contains ingredients of valid contract. For a valid contract to exist there must be an offer, an unqualified acceptance of the offer and a consideration. There must be a mutuality of purpose and intention. It was further submitted that the two contracting parties in Exhibit A that is the 1st Respondent and 5th Respondent were in agreement as to the allocation of stall No: AJ/27 A to the 1st Respondent and that the contract was binding. See Isheno Vs. Julius Berger Plc (2008) 6 NWLR (Pt 1084) P 582 at P 609 paras G – H, See also Nika Fishing Co. Ltd Vs. Lavina Corp (2008) 16 NWLR (Pt 1114) P 509 at p 542 para F. The learned counsel for the 1st respondent further submitted that the contention that the Exhibit A cannot be equated with the Certificate of occupancy. for it to be revoked is untenable going through Exhibit A. From the contents of Exhibit A it may be revoked by the 5th respondent if the allottee thereof fails to pay the stallage fee of N40.00 every month and the failure to comply with all market regulations. It was further argued for the 1st Respondent that since there is no evidence of the failure of the 1st respondent to abide by the conditions provided in Exhibit A, there cannot be any question of mutual revocation of the contract over the stall occupied by the 1st respondent.
It was further argued that the contract between the 1st respondent and 5th respondent was not dissolved by mutual agreement as contended by the appellant’s Counsel. It was finally submitted for the 1st respondent that, since the 1st respondent has not violated any of the terms contained in Exhibit A (Allocation Paper) and the allocation paper has not been revoked, she still has a lawful interest in the stall that is AJ/27A and stalls NMB/24, NMB/25A and NMB/25B carved out from AJ/27A. The conclusion of the trial Court that the allocations of stalls NMB/24, NMB/25A and NMB/25B to the appellant and 2nd to the 4th respondents were unlawful remain unassailable because the stalls were not available for re-allocation as the interest of the 1st respondent had not been terminated.
The Court was urged to resolve sole issue against the appellant. The learned Counsel for the 2nd respondent contended that the area where the stalls in particular NMB25A, NMB25B, NMB24 and the rest were built was not open but built up market stalls. He referred to the 2nd Respondent’s 2nd further amended statement of defence dated 17/5/2005 and filed on 23/5/05 and the Appellant’s statement of defence dated 6/6/96 and filed on 14/6/96 where it was pleaded that it was an open space. This was again further confirmed by the 3rd and 4th Respondents in their amended statement of defence dated 6/5102 deemed by the trial Court as properly filed on 6/5/02. This fact is also consistent with the evidence of DWI and DW2. That it was an open space and further confirmed by the Oradiwe report dated 14/11/95 at page 1 titled “introduction”. It stated as follows:
“AJ/27A was an open space near the Local Government office originally allocated to Mrs. Patience Uzoukwu.”
Further reference was made particularly to paragraph 2 of the said report sub titled ‘structure’ which stated thus:
“During the regime of Mr. Anna and Ikwukeme, the said AJ/27 A was demolished and new structures erected with decked roof.”
It further reads at paragraph 4 lines 1-5 thus:
“Mr. Bekke wanted to build the place and own all the stalls but no one can allow that. The case of Achuba is a case in view; the three occupants Mr. Emeka Ezenwanne, Johnson Onyeka and Emma Eziuzor all have genuine allocation papers.”
Mr Bekke referred to above is the 1st Respondent’s husband; Emeka Ezenwunne is the Appellant; Johnson Onyeka is the 3rd Respondent and Emma Eziuzor is the 2nd Respondent herein.
It is submitted that the stall AJ/27A having been demolished, the contract or substance of the agreement or allocation in respect thereof became non-existent or frustrated. The 1st Respondent’s right therefore ceases with the frustration or extinction of the contract.
As rightly submitted by the 2nd Respondent, the 1st Respondent’s case that the built up stall was demolished and a new structure built up in its place and that the 1st Respondent was promised by the 5th Respondent that upon completion she shall be given a shop in the new structure. Her grouse is that the Onitsha North Local Government failed in their said promise.
The undeniable fact is that an entirely new structure was erected in the place while the former, which was demolished and therefore ceased to exist. The basis for the claim of three shops in place of the one demolished is as an imaginable wish and next to dream. The 1st Respondent’s previous stall was demolished. It is worse than a dead person in the grave who, it is believed, will resurrect on the Day of Judgment to go to Paradise or Hell. The demolished stall is gone forever and common sense dictates that the previous allocation Exhibit A equally ceased to exist with it. It is the stall that is allocated on papers and where the stall is non-existent as in the instant case, the paper is rendered insignificant and worthless. It is a serious misconception to dust such worthless document and purported to use it for the newly allocated shop and camouflage the valid and subsisting allocation document which should govern the relationship between the parties.
The Onitsha Market Bye-law earlier quoted above in this judgment is clear and unambiguous. The allocation of a market stall under the Bye-law donates licence to the allottee in respect of the stall allocated similar to the relationship between a landlord and tenant. It does not confer proprietary right like certificate of occupancy. The ownership of the property still remains with the allocating authority that is the Local Government that allocates the stalls. In the instant case, the 5th Respondent even kept to its promise by allocating a shop to the 1st Respondent from the newly built market stalls. The 1st Respondent however was eyeing her neighbors’ stalls, which she purportedly allocated to herself. It should be clearly understood that only the Local Government that owns the stall may validly allocate them. The wishful thinking of taking three shops is unsupportable by the applicable law and the facts of this case.
As contended by the learned counsel for the Appellant, the 1st Respondent is a mere licensee notwithstanding the agreement between her and the 5th Respondent. The existence of contractual agreement with elements of valid contract does not confer proprietary right to the 1st Respondent as misconceived in the 1st Respondent?s brief of argument. It would otherwise confer such right to a tenant who is similarly under agreement with his landlord.
The allocation paper Exhibit A given to the 1st Respondent in respect of stall No. AJ/27A by the 5th Respondent was a permission to carry out his/her business in the said stall. The Court below was therefore wrong when it held in its Judgment thus:
“And since the Plaintiff has not violated any of the Terms contained in her allocation paper and since the allocation had not been revoked, she still has a lawful interest in the stall.” (See page 315 of the Record of Appeal).
Regrettably the learned trial judge misdirected himself in fact and in law by regarding the allocation paper Exhibit A as Certificate of Occupancy which confers interest in land, which can only be extinguished strictly by a valid revocation.
I do not want to touch on other multiple posers raised apart from the sole issue for determination because it will otherwise amount to proliferating issue through the back door.
From the foregoing appraisal, I have a compelling reason for resolving the sole issue for determination in this appeal in favour of the Appellant. The appeal succeeds and is hereby allowed.
The Judgment of the lower Court delivered on 2nd November, 2007 is accordingly set aside. The parties shall bear their respective costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I read in advance the judgment just delivered by my learned brother, Hussein Mukhtar, JCA.
He has in my respectful view properly considered the issues raised for determination of the appeal and I entirely agree with the reasons and conclusions reached thereat.
I accordingly find merit in the appeal and I allow it. I set aside the judgment of the lower Court.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother HUSSEIN MUKHTAR- JCA and I am in agreement that the appeal succeeds and that it is accordingly allowed. I abide by the consequential orders made thereto.
Appearances:
Ejike Ezenwa, Esq.For Appellant(s)
V.C Ezewudo, Esq.- 2nd Respondent
The 1st Respondent was duly served on 26/11/16
The 3rd and 4th Respondents were duly served on 05/12/16
The 5th Respondent was duly served on 26/11/16For Respondent(s)
Appearances
Ejike Ezenwa, Esq.For Appellant
AND
V.C Ezewudo, Esq.- 2nd Respondent
The 1st Respondent was duly served on 26/11/16
The 3rd and 4th Respondents were duly served on 05/12/16
The 5th Respondent was duly served on 26/11/16For Respondent
