IDAH v. IGWENAGU & ORS (2022)

IDAH v. IGWENAGU & ORS

(2022)LCN/16832(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Thursday, October 27, 2022

CA/AW/31/2018

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

MRS. PATRICIA OKAFOR IDAH APPELANT(S)

And

1. MR. RICHARD IGWENAGU 2. CHIEF E. S. OKOLI 3. MR. IKECHUKWU EMESI 4. E. SOKOLI & IKEMESI VENTURES RESPONDENT(S)

RATIO

WHETHER OR NOT A SALES RECIEPT ENTITLES A PERSON TO AN EQUITABLE OWNERSHIP OF A LAND IN DISPUTE

THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

What is therefore obvious in this case is that with the aforesaid oral evidence and findings of the trial Court, it is clear and open that the 1st Respondent proved the location or position and dimensions of the shop or stall C480A of Ose Okwuodu Market Onitsha. See the case of PRINCE POLYCARP OKEKE vs. AMECHI NNOLIM & ORS (2015) 5 NWLR (PT. 1453) AT 444 at 450, where it was held: “In an action for declaration of title, for the claimant to succeed, he must also ascertain the root of his title”. Based on the foregoing, there is no gainsaying of the fact that the 1st Respondent proved his case by ascertaining the origin of his shop and the original owners-lkporo Onitsha Six (G) kindred Co-operative Union Ltd to the 2nd – 4th Respondents who inherited same and sold same to him. See also the case of MR. ABIODUN FAGBURO & 9 ORS vs. ALHAJI SULEMAN AKINBAMI & 4 ORS. The Court below was therefore not of order to have made orders on injunctions against the Appellant. PER OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice Anambra State, sitting at Onitsha (hereinafter referred to as: “the Court below”) delivered on the 13th day of November, 2017 Coram: A. O. Okuma J, wherein judgment was entered in favour of the 1st Respondent. The 2nd – 4th Respondents though sued alongside the Appellant as Defendants in the lower Court supported the case of the Respondent.

The 1st Respondent as the plaintiff in the lower Court claimed as follows:
1. A DECLARATION that the Plaintiff is the bonafide purchaser of the shop or stall situate No: C480A, (six Aguata line) Ose Okwuodu Market, Onitsha, in Onitsha North Local Government Area.
2. An order of specific performance compelling the 1st, 2nd, and 3rd defendants to restore the plaintiff to the said shop or stall no: C480A (Aguata line) Ose Okwuodu Market, Onitsha.
3. AN ORDER OF INJUNCTION restraining the 4th defendant or by herself, her agents, privies or workmen and servant. Howsoever described from trespassing or continuing to trespass with or over the occupationary or possessory rights of the plaintiff’s shop or stall no: C480A Ose Okwuodu Market, Onitsha in Onitsha North L.G.A.
IN ALTERNATIVE;
1. AN ORDER OF COURT compelling the defendants to pay the plaintiff the sum of N5,000,000.00 (Five Million Naira) being current market value of the shop or stall in the market.
2. AN ORDER OF INJUNCTION restraining the defendants, either by themselves, their agents, privies or workmen and servants or howsoever, described from trespassing or continuing to trespass with or over the occupationary or possessory rights of the plaintiff’s shop or stall no: C480 A Ose Okwuodu Market, Onitsha in Onitsha North L.G.A.
3. The sum of N1,000,000.00 (One Million Naira) damages against the defendants.

The Appellant as the 4th Defendant on her part denied the Respondent’s claims and counter-claimed as follows:
a. A DECLARATION that the 4th defendant is the person entitled to the occupation of shop which she is currently occupying which is located at the terminal end of Block C and numbered No. C480 before the reconstruction of the market blocks at Ose Okwuodu market, Onitsha rent free for ten years.
b. N1,500,000.00 (One Million, Five Hundred Thousand Naira) for various acts of trespass on the 4th defendant’s said shop, police harassment, unlawful detention and extortion.
c. AN ORDER of perpetual injunction restraining the plaintiff, his agents and privies under any guise from further trespassing on the above described shop of the 4th defendant which she currently occupies, harassing, intimidating, arresting or detaining the 4th Defendant, her agents or privies either by the Plaintiff himself or with the police, or his agents or privies.

The Appellant has been a trader occupying Shop No: C480 in Line C of Ose Okwuodu market, Onitsha located at the extreme of Line “C” in the market trading therein with her husband since 1976 until her husband died in year 2000 when she inherited same fully and continued occupying same as a tenant of W.T.S. Cooperative Ltd. till some time in 2012 when the Ikporo Onitsha six kindred Cooperative Union Limited, part of which is the W.T.S. Cooperative Limited (the Appellant’s Landlord), agreed with the trader (including the Appellant and the 1st Respondent) and contractors (the 2nd-4th Respondents) to reconstruct the market. The reconstruction agreement was reduced to writing in a tripartite agreement which stipulated as follows:
“a. Reduction of the size of the original shops from 10 feet by 10 feet to 8 feet by 7 feet.
b. That all the original occupants of the shops including the Appellant were to pay the sum of N250,000.00 within stipulated time to the Co-respondents for the reconstruction of their respective shops.
c. That each occupant who complied with the payment term shall occupy her shop in its original position rent free for ten (10) years ie., ten years lease.”

The tripartite agreement dated 30th January, 2012 was admitted as EXHIBIT D3. See page 174 – 180 of the Record. The Appellant met with the requirement of payment within time. See page 106 of the Record. The Ikporo Onitsha Six kindred in addition agreed with the 2nd – 4th Respondents that the reduction in size shall be in compliance with the original plan as designed by the approving authority and that the extra shops resulting from the reduction of the original shops shall be shared between the 2nd – 4th Respondents and the Ikporo Onitsha Six kindred Cooperative Limited in the ratios of 70%: 30%. See No. 2 on page 49 and No. 14 on page 51 of the Record.

The Appellant, on completion of the reconstruction exercise resumed occupation of her said shop at the extreme of “C” Line at the Ose Okwodu market. The 1st Respondent in conjunction with the 2nd – 4th Respondents later went to the Appellant to claim that the shop occupied by the Appellant at the extreme of Block “C” previously numbered as C.480 had become the extra shop resulting from the reduction of size of the previous shops and suffixed C.480 with “A” making same C.480A owing to the vantage position of shops located at the extreme as that of the Appellant. They also asked the Appellant to relocate to the next shop inside claiming that the 2nd – 4th Respondents had sold the shop at the extreme to the 1st Respondent at the rate of N400,000.00 (Four hundred thousand) Naira even before the commencement of the reconstruction exercise.

The Appellant refused insisting that the extreme of block C as Shop C.480 was her original shop and is entitled to the continued occupation of same having complied with the terms of payment stipulated in the tripartite agreement.

During the trial, the 1st Respondent as the Plaintiff tendered eight (8) documents, which were objected to by the Appellant’s Counsel and arguments on their admissibility deferred to the final address while the documents were provisionally admitted as EXHIBITS P, P1 to P7 subject to ruling on the admissibility in the judgment. The said documents were listed at page 391 of the record and deferment of ruling made on page 393 of the Record.

The Appellant’s Counsel in his final address further argued against the admissibility of two documents tending to establish title for the Respondent to wit: (a) Deed of transfer purportedly signed on 27/6/2012 (provisionally admitted as EXHIBIT P1 and (b) Allocation paper dated 23/12/2012 (provisionally admitted as EXHIBIT P2). See the argument on this at paragraph 5.2.3 on page 361 of the Record. The crux of the argument was that those documents tend to confer title to the 1st Respondent but being registerable instruments were neither registered nor stamped.

The trial Court however delivered judgment for the 1st Respondent relying on those documents without delivering the deferred ruling on the admissibility of those documents. The 2nd-4th Respondents during the trial tilted towards the case of the Respondent understandably because they are the beneficiaries of the money purportedly paid by the 1st Respondent.

The Appellant as the 4th Defendant on her part gave evidence of her occupation/possession of the shop located at the extreme beginning of Block C numbered C.480 since 1976. She further proved that the shops were reconstructed and she met all the financial conditions stipulated for the trader for each to resume occupation of his/her exact shop in its original position, a fact that was not disputed by the Respondents. The Appellant also proved that after the reconstruction exercise, she resumed occupation of her said shop at the extreme of Block C and is still in possession while the Respondents are now claiming that the said shop at the extreme occupied by the Appellant is now an extra shop and claim to have renumbered same as shop C.480A and that it now belongs to the 1st Respondent.

The contest between the parties at the lower Court was primarily on the locations of the shop C.480 or C.480A before and after the reconstruction of the market, which by law cannot be proved by the Respondents without the composite plan of the market before and after the reconstruction of the market to entitle the 1st Respondent as Plaintiff to his reliefs. The trial Court on 26/6/2014 when the matter first came up for pre-trial made a strong remark to the 1st Respondent as Plaintiff that his case could not be proved without the composite plans of the market before and after the reconstruction and that was made in a manner the Appellant, then 4th Defendant felt strongly that the trial Court was unduly descending into the arena of conflict in favour of the Respondents.

In addition to the above, the trial Court without any formal motion filed by the 1st Respondent as Plaintiff, granted a motion restraining the parties including the Appellant who had been trading at that same shop at the extreme of the block C with her wares therein from entering any of the two shops there, which action prompted the Appellant then 4th Defendant to apply to the Honourable Chief Judge of Anambra State for transfer of the suit to another Judge. See pages 219 to 221 of the Record. Despite the application for transfer, the Honourable Chief Judge on 22nd day of May, 2015 rejected the application. See page 249 of the record.

Before the Appellant, then 4th Defendant opened her defence she filed a motion dated 18/7/2016 seeking the leave of the trial Court for minor amendment of the statement of defence and counter-claim and to call additional witness. The trial Court on 25/10/2016 refused the application for amendment and to call additional witnesses and went ahead to order the Appellant to open her defence as the sole witness in her defence.

Notwithstanding the heavy weather made about the composite plans of the market before and after the reconstruction, the 1st Respondent as Plaintiff failed woefully to grab the tips given by the trial Court to use same to prove the different locations of the disputed shops before and after reconstruction. Despite this failure and other facts, the trial Court entered judgment for the 1st Respondent without making any reference or consideration of the profuse arguments of Counsel on the requirement of survey plans in proof of the 1st Respondent’s case as contained on pages 362 to 364 of the record as argued by the Appellant in her final address at the Court below. The trial Court even failed to make any reference to its own earlier judgment in CHINWE CHUKWUJI vs. BEKKS INT’L COY LTD IN SUIT No: 0/74/2011 decided on 7/11/2012 and the judicial authorities it relied on in the case which was on all fours with the present case and was commended to him.

The Appellant as 4th Defendant at the lower Court being dissatisfied with the judgment of the trial Court delivered on 13th day of November, 2017 appealed against same vide a Notice of Appeal dated the 21st day of November, 2017 and filed same day. See Pages 473 to 482 of the record of proceedings and which was subsequently amended. In the said Amended Notice of Appeal, the Appellant raised ten (10) grounds of appeal.

ISSUES FOR DETERMINATION:
The Appellant nominated five (5) issues for the determination of this Appeal as follows:
1. Whether the trial Court was right to rely on EXHIBIT P1 (unregistered Deed of transfer dated 27/6/2012) and EXHIBIT P2 (Allocation paper dated 23/11/2012) tendered by the 1st Respondent as proof of title and without ruling on its admissibility as such?
2. Whether the trial Court was right in holding that there was no adverse pleading or evidence led by the parties against the Ikporo Onitsha Six kindred Cooperative Union Ltd and relied on the evidence of DW1 as that of untainted and independent witness? GROUND 4
3. Whether the trial Court was right in entering judgment for the 1st Respondent and granting an injunction against the Appellant without the Respondent proving the particular location, boundaries, dimension and extent of area covered by the shop in dispute being claimed? GROUND 5
4. Whether the 1st Respondent proved his claims as required by law to entitle him to judgment at the lower Court? GROUNDS 1, 3, 6, 8 and 10.
5. Whether the trial Court was dispassionate or fair in handling the trial at the lower Court between the parties? GROUND 9.

On the part of the Respondent, five (5) issues were nominated for the determination of this appeal, thus:
1. Whether the lower Court properly evaluated all the evidence before it in arriving at its judgment?
2. Whether the trial Court was right in entering Judgment for the 1st Respondent and granting an injunction against the Appellant without the Respondent proving the particular location, boundaries, dimension and extent of area covered by the shop in dispute being claimed?
3. Whether the trial Court was right in holding that there was no adverse pleading or evidence led by the parties against the Ikporo Onitsha Six (6) kindred Co-operative Union Ltd and relied on the evidence of DW1 as that of untainted and independent witness?
4. Whether the 1st Respondent proved his claim as required by law to entitle him to judgment at the lower Court?
5. Whether the trial Court was dispassionate or fair in handling the trial at the lower Court between the parties?

A careful perusal of the issues nominated by the parties across board shows that the issues are identical except for minor issues of semantics. This appeal shall therefore be determined based on the issues nominated by the Appellant due to reasons of comprehensiveness. Learned Counsel addressed this Court extensively, citing a plethora of decided cases in support of their views. The brief of argument of Appellant was filed on the 11-2-2019 and was settled by E. U. UDEGBUNA, ESQ. The brief of argument of the 1st Respondent was filed on the 3-8-2021 and deemed properly filed and served on the 21-9-2021. On the 2-6-2022 at the hearing of the Appeal, learned Counsel for the parties adopted their respective briefs of argument, with each urging upon the Court to resolve this appeal in favour of their sides.

SUBMISSION OF COUNSEL FOR THE PARTIES:
APPELLANT:
ISSUE ONE:
Whether the trial Court was right to rely on EXHIBIT P1 (unregistered Deed of transfer dated 27/6/2012) and EXHIBIT P2 (Allocation paper dated 23/11/2012) tendered by the 1st Respondent as proof of title and without ruling on its admissibility as such?

In arguing this issue, learned Counsel submitted that both EXHIBIT P1 (unregistered Deed of transfer) dated 27/6/2012 and EXHIBIT P2 (Allocation paper from Onitsha North Local Government) dated 23/11/2012 were among the 1st Respondent’s documents provisionally admitted as exhibits. See page 393 of the Record. Their admissibility was an issue that was fully argued by the parties in their final addresses at paragraph 5.2.3 page 361 and paragraphs 6.11, 6.12, 6.13 and 6.14 on pages 374 and 375 of the record.

It is the contention of Counsel that despite the copious objection and arguments on the admissibility of those documents, the trial Court failed to rule on the question of their admissibility, but went ahead to rely on same as proof of title when it stated thus: “PW1, Richard Igwanagu in his depositions on oath testified of the existence of the Shop No. C 480A in the market. He tendered Exhibits P, P1 and P2 to prove his title to the shop”. See lines 2-5 on page 465 of the Record.

Counsel argued that the two documents by their nature seek to establish title in favour of the 1st Respondent and being unregistered and unstamped registerable instruments, are inadmissible for proof of title. Counsel urged this Court to expunge same. See the cases of OKOYE vs. DUMEZ (1985)1 NWLR (PT. 4) 783, OGUNMBAMBI vs. ABOWAB (1951) 13 WACA 222 and OJUGBELE vs. OLASOJI (1982) 4 SC 32.

Counsel further submitted that the law is trite that a Court cannot act upon evidence not accepted by the Court. See the case of BAKARE vs. THE STATE (1987) 3 SC.1, OMOREGBE vs. THE STATE (2009) ALL FWLR (PT. 458) 230 AT 249, PARA D-E. It is the contention of Counsel that the two documents cannot also establish proof of even equitable interest of payment or receipt as the 1st Respondent failed to state so during the trial more so, when the Plaintiff tendered the receipt issued to him by the 2nd- 4th Respondents in addition to bank teller and on the receipt, it was clearly stated that it was for reconstruction of shop C 480A just as that of the Appellant and not for outright acquisition. Counsel urged this Court to hold that the documents are inadmissible for proof title to land as objected to during the trial.

It is the further submission of Counsel that the two documents even if not expunged are contradictory to each other by tracing the Respondent’s root of title to two divergent sources. Counsel drew the attention of this Court to the fact that while the deed of transfer EXHIBIT P1 traced the title of the Respondent to the 2nd – 4th Respondents and finally to Ikporo Onitsha six Kindred Cooperative Ltd., EXHIBIT P2, the Allocation paper traced the same 1st Respondent’s root of title to the Onitsha North Local Government without any established link between Onitsha North Local Government and the 2nd – 4th Respondents or the Ikporo Onitsha Six Kindred Cooperative. The legal effect of self-contradiction is that the Court cannot pick and choose which version to believe, but to reject all the versions. See the case of ALHAJI B. JAWANDO & ANOR vs. MADAM BAKARE (2006) ALL FWLR (PT. 332) 1590 @ 1609. On the strength of the above, Counsel urged this Court to resolve this issue in favour of the Appellant.

ISSUE TWO:
Whether the trial Court was right in holding, that there was no adverse pleading or evidence led by the parties against the Ikporo Onitsha Six Kindred Cooperative Union Ltd and relied on the evidence of DW1 as that of untainted and independent witness?

Learned Counsel contended that the above holding of the trial Court was entirely not borne out of the pleadings and evidence before the trial Court. The Appellant as the 4th Defendant at the lower Court pleaded in paragraphs 14 and 15 of her statement of defence and gave evidence in paragraphs 15 and 16 of her deposition on oath that the 2nd – 4th Co-Respondents as the 1st- 3rd Defendants found her shop No: C 480 irresistible because of its location at the terminal end of “C” block, which allows for more access to customers and colluded with some members of Ikporo Onitsha Six Kindred Cooperative Union Ltd. to invent number C 480A, which never existed in the market before the reconstruction of the market. See paragraphs 14 and 15 page 75 and paragraphs 15 and 16 page 88 of the record.

According to Counsel, from the above, it is clear that the trial Court in making the findings complained of, was only speculating and not basing its findings on the facts and evidence before the Court as disclosed in the above paragraphs and pages of the record of appeal. Counsel argued that the law is that the Courts should not speculate on evidence but decide and rely on the evidence presented to it. Counsel cited the cases of OKORO vs. THE STATE (1964) 1 ALL NLR 423 AT 428, SEISMOGRAPH SERVICES (NIG) LTD vs. OGBENI (1976) 4 SC.101, GODWIN IGABELE vs. THE STATE (2006) 5 MJSG 96 AT 107 PARAG.

It is the further contention of Counsel that from the pleadings and evidence of the Appellant as the 4th Defendant at the lower Court, it was shown as above that the evidence of DW1 (Stella Arima) is tainted with interest to serve. It was also shown that letters of adverse claims over the shop emanating from the Ikporo Onitsha Six Kindred of the DW1 addressed and received by the Appellant were tendered and received in evidence as EXHIBIT D2, D4, D5 and D6 during the trial. Counsel submitted that the trial Court therefore erred in relying on the evidence of the DW1, which was tainted with interest to deliver judgment in favour of the Respondent while holding that she was not tainted. On the grounds of the above, Counsel urged this Court to also resolve issue no. 2 in favour of the Appellant.

ISSUE THREE:
Whether the trial Court was right in entering judgment for the 1st Respondent and granting an injunction against the Appellant without the Respondent proving the particular location, boundaries, dimension and extent of area covered by the shop in dispute being claimed?

It is the submission of Counsel that from the pleadings and evidence of the parties at the lower Court, the location or position and dimensions of the so called shop C 480A that purportedly resulted from the reduction in sizes of the original shops, were squarely put in issue. The reductions in sizes of the previous shops were agreed by the parties to be in both width and length. Counsel contended that the 1st Respondent as Plaintiff did not prove the exact dimension and location of the resulting shop and the original ones, yet he was positively asserting that the shop at the extreme presently being occupied by the Appellant, which gave rise to the suit at the lower Court, is the extra shop resulting from the reductions.

Counsel stated that by the combined effect of Sections 131, 132 and 133 of the EVIDENCE ACT, 2011 the burden lies first on the Plaintiff who desires this Court to give judgment as to his legal rights based on the existence of facts which he asserts and would fail if no evidence at all were given on either side especially when the Appellant was proved by both sides to be in possession of the shop in dispute. See the case of OKAFOR vs. EJIOGU (2011) 32 WRN 89, NSIONU vs. NSIONU (2011) 16 WRN 11. To Counsel, it therefore becomes absolutely necessary for the 1st Respondent as Plaintiff to plead and lead evidence to prove the location and dimensions of the stalls before reconstruction and after reconstruction including those of the shop in dispute (C480A) vis-a-vis the Appellant’s shop (C 480) and after, being located at the extreme of Block C in the market. See NWOGO vs. NJOKU (1990) 3 NWLR (PT. 140) 570.

According to Counsel, to discharge this onus, it is the burden on the 1st Respondent as Plaintiff first to adduce evidence that will lead to the ascertainment of the area in dispute with certainty such that from the description given, a surveyor can produce plan showing accurately the area in dispute. See EKPO vs. KANU (2012) 12 WRN 41, EZEUDU vs. OBIAGWU (1996) 2 NWLR (PT. 421) 208, OGUN vs. AKINYELU (2005) 8 WRN 41. The law is that the best way of discharging the burden of proving the identity/position of area of land in dispute or extent of land claimed is by the Plaintiff filing and tendering a survey plan reflecting clearly the boundaries, location, dimension and extent of the area claimed with other salient features. See UDEZE vs. ORAZULIKE TRADING COMPANY LTD (2000) 3 NWLR (PT. 648) 203, OGUN vs. AKINYELU (supra) applied by the same lower Court PER OKUMA, J. in CHINWE CHUKWUJI vs. BEKKS INT’L COY. LTD. SUIT No: O/74/2011 decided on 7/11/2012.

To Counsel, in the present case the 1st Respondent as the Plaintiff will be required not only to file and tender the plan relating to the shop now in dispute, but will be required to file and tender the composite plan of the market before reconstruction two of which can be super imposed to prove that the shop being occupied by the Appellant as the 4th Defendant now at the terminal end of line C is the resultant extra shop different entirely from the shop previously occupied at the terminal end of the “C” line by her. The situation is worse for the 1st Respondent as Plaintiff when the construction agreement EXHIBIT D3 between his vendors (2nd- 4th Respondents) and the Ikporo Onitsha clearly spelt out in paragraph 2 of the testimonium that the reduction in size shall be in compliance with original plans as designed by the approving authority. See pages 48 to 55 particularly at page 49 of the Record.

Under cross-examination, the contractor-Plaintiff’s vendor said that he was not given the original or composite plan before reconstruction. The question is: “how could the 1st Respondent as Plaintiff, prove the location, boundaries, dimensions and extent of the shop allegedly sold to him in relation to the one which the Appellant is presently occupying without the survey plan?” It is the submission of Counsel that the case of the 1st Respondent as the Plaintiff worsened further when he and the DW2 started making a different case under cross-examination to the effect that the shop at the terminal end now christened C 480A by them, was an attachment constructed on an existing road in the market and no more from reduction of existing shops. Counsel argued that the law is that a party is not allowed to make two divergent cases in a suit. Moreover, the fact of this piece of evidence was not pleaded in the statement of claim and therefore goes to no issue. See NSIRIM vs. NSIRIM (2002) 2 SCNJ 46 AT 57, EMEGOKWUE vs. OKADIGBO (1973) 4SC 113 AT 117.

On injunction sought by the 1st Respondent as Plaintiff against the Appellant as 4th Defendant, Counsel contended that law is that no injunction can lie in respect of an area of land whose boundaries have not been properly identified and known. See the case of DABUP vs. OKOLO (1993) 9 NWLR (PT. 217) 254, LAWAL vs. ADELEKE (2004) 9 FR 126 e 132. Counsel cited the case of OLADEJO vs. ADEYEMI (2000) 3 NWLR (PT. 647) 28 AT 31 where it was held as follows: ”Lack of precision bars such orders as the area of land must be stated in the judgment or ruling with clarity to enable the person against whom the injunction is granted to know the area”. See also ONIRU vs. GBADAMOSI (1971) NSCC 343 AT 345-6. The justification for the above holdings is that violation of order of injunction carries with it grave consequences of committal proceedings for the violator who may be jailed for contempt. Thus it is apt that he knows the extent of the land over which the injunction applies.

Also as far as Counsel is concerned, it is pertinent to recall some of the incidents that took place in this matter at the commencement of pre-trial of this suit which made the Appellant as 4th Defendant, out of fear, to raise an application dated 8th day of September, 2014 to the Honourable Chief Judge for the transfer of the suit. See pages 219 to 221 of the Record. He said that the trial Court on 26/6/2014 when this suit came up for pre-trial indicated and rightly said that the Plaintiff’s suit would fail if the layout or composite plans before and after the reconstruction of the market are not shown and which the correct position of the law is as enunciated above. Counsel said that the Appellant as 4th Defendant out of fear and limited knowledge of the law considered the Court’s expression as descending into the arena of conflict to suggest to the Plaintiff what to do and therefore applied to the Chief Judge for transfer which fear was expressed in paragraph 5 of the said application dated 8th September, 2014. See pages 220 of the Record.

Counsel further stated that on refusal of the application, hearing commenced and the Plaintiff did not take the tips and failed to file the requisite survey plans. During the hearing, the 1st Respondent as Plaintiff relied on the number C480A ascribed to the shop at the terminal end of C block. That was the same emphasis during the visit to the locus in quo; 1st Respondent as Plaintiff did not show any physical features on the ground to show that the terminal end of the C block being occupied by the Appellant as 4th Defendant was an extra shop. Counsel drew the attention of this Court to the fact that it was observed during the locus visit that the terminal shop occupied by the Appellant which was said to be the C480A is followed by C480, which in turn is followed by C481, C482 to C487 in the line. He added that it is obvious that numerical numbers are called first before following same numerical number with alphabets as suffix e.g. No. 4 before 4a, before 4b, before No: 5.

It is the further submission of Counsel that in the 1st Respondent’s case C 480A, which in accordance with normal numerical sequence is supposed to come after C 480 before C 481, came before C 482, etc. He said that numbering as presented by the 1st Respondent as Plaintiff clearly offended numbering or numerical sequence in ascending order even at the design of the Respondents. He added that Appellant on her side showed the Court the physical extent of her original shop on the ground before reconstruction and the extent and reduction after reconstruction, which evidence are verifiable by the Court during the visit to the locus in quo. According to Counsel, the number irrespective of offending the sequence of numbering cannot establish the position, dimension, boundaries and extent of the resulting shop. In coming to write on this Court hall, No: 5a Egbengwu Street, Amawbia cannot turn this Court simpliciter to the property of Emeka Agbapuonwu & Co. On the strength of the above, Counsel urged this Court to also resolve issue no. 3 in favour of the Appellant.

ISSUE FOUR:
Whether the 1st Respondent proved his claims as required by law to entitle him to judgment at the lower Court?

In arguing this issue, Counsel adopts the arguments proffered for issues 1 to 3 above and further argued that the 1st Respondent as Plaintiff failed to discharge the onus placed on him by law to entitle him to the reliefs he sought. Relief (1) of the Plaintiff is a declaratory relief with respect to title to land or landed property. The law is that the five recognized methods of proving title to land or property are required to be proved. See the cases of IDUNDUN vs. OKUMAGBA (1976) 9-10 SC 277 cited with much approval in the case of UZOCHUKWU vs. ERI (1997) 7 NWLR (PT. 514) 535 AT 538, NKADO vs. OBIANO & ORS (1996) 1 NWLR (PT. 44) 253.

Counsel contended that the 1st Respondent as Plaintiff did not even attempt to proffer any traditional evidence at all of the shop. He argued that with respect to possession, the Plaintiff’s relief (2) of the claim which is for specific performance is a clear admission that he had never been in possession of the shop in dispute and so is his evidence-in-chief. Also, Counsel submitted that the 1st Respondent as Plaintiff in an effort to produce documents of title tendered two contradictory documents which were objected to on grounds of inadmissibility. The two documents are (a) Deed of transfer purportedly signed on 27/6/2012 and (b) Allocation paper dated 23/11/2012. Reliefs (3) and (5) of the 1st Respondent’s claims at the lower Court as plaintiff are for injunction restraining the Defendants specifically the Appellant from trespassing on the shop in dispute in this appeal.

It is the submission of Counsel that for the 1st Respondent as Plaintiff to prove trespass to entitle him for an injunction, he must have specifically proved the location or position of the particular shop and that he is in possession or entitled to the possession of same and such proof shall be in the manner copiously argued under issue 3 above. All the parties to the suit and this appeal agreed that the contest in the suit arose from an extra shop resulting from reduction of the sizes of their original shops at the C line of Ose Okwodu Market from 10ft x 10ft to 8ft x 7ft. Again, Counsel stated that it is clear that the reduction was in both length and width of the original shops. All the parties agreed that the number assigned to the shop in dispute, C 480A never existed in the market till the completion of the reconstruction exercise. 1st Respondent as Plaintiff did not plead or prove the date of completion of the shops. The 2nd – 4th Respondents as contractors agreed that the Appellant paid the requisite fees before the completion of the reconstruction. The Appellant paid first in November, 2012 (see Exhibits DII). The 1st – 3rd Defendants (2nd – 4th Respondents) agreed that the 1st Respondent paid before the completion of the shops as he paid even before the Defendant. The question is: “which shop did the 1st Respondent as Plaintiff pay for since assignment of the numbers and existence of C 480A were allegedly after the completion of reconstruction?” “How was the number C 480A invented by June, 2012 as to appear in the 1st Respondent’s receipt of June, 2012?”

Learned Counsel argued that the Appellant as 4th Defendant uncontradictorily proved that she has been in possession of shop No. C 480 located at the terminal end of Block “C” Ose Okwuodu market, Onitsha as a lawful tenant and that the tenancy metamorphosed into a ten-year lease after the reconstruction of the shop, which she paid for. Counsel said that the Appellant proved that the position of her said shop was not in doubt and that after the reconstruction exercise, she resumed occupation of the same shop at the terminal end of Block C in the market in a reduced form in accordance with the tripartite reconstruction agreement of 30/1/2012. All the parties to the suit agreed that the 4th Defendant has been in possession of the shop at the terminal end of Block “C” before and after the reconstruction of the market.

It is the further submission of Counsel that even by common sense without survey plan, there is no way reducing every shop among eight shops in the market will give rise to an entirely new extra shop at either the beginning or end of the line as it must occur before one gets to the end with minimal reduction from the end and definitely not at the beginning. According to Counsel, by all the above, the Appellant proved her possession and her entitlement to continue possession of the shop at the position/location described and with the above scenario, the 4th Defendant is the owner of lease and possessory interest in the shop. She also gave evidence that all occupants of the shops at the terminal end of other lines who paid the reconstruction fee like her were occupying same shops after reconstruction which was not rebutted.

Counsel further stated that the law is that since the Appellant is in possession with proof of her entitlement to so possess it, having done so with both oral and documentary evidence, the onus is on the party asserting the negative, to prove that she is not the owner of such right or that such right is over any other position or location than the one she is currently occupying at the terminal end of Block “C”. Counsel argued that the law is that when the question of whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. See Section 143 of Evidence Act, 2011; FASORO & ANOR vs. BEYIOKU & ORS (1988) 1 NSCC 705 SC, OMONUWA vs. OKPERE (1991) 5 NWLR (PT. 189) 36 CA.

Again, Counsel submitted that for the 1st Respondent as Plaintiff to discharge the onus placed on him by Section 143 of the Evidence Act, 2011, he has to discharge the onus placed on him to prove his own case by showing the survey plans showing the respective positions, dimensions, boundaries and extent of the 4th Defendant’s/Appellant’s shop and the resulting extra shop before and after reconstruction. This is more so when all the parties admitted that the 4th Defendant had been in the market occupying the shop at the terminal end of Block “C” in the market both before and after reconstruction of the market. On the strength of the above, Counsel urged the Court to resolve issue 4 also in favour of the Appellant.

ISSUE FIVE:
Whether the trial Court was dispassionate or fair in handling the trial at the lower Court between the parties?

Learned Counsel contended that from the commencement of pre-trial at the lower Court, the Appellant as the 4th Defendant entertained serious fear of bias on the side of the learned trial judge. On the strength of her said fear, the Appellant duly applied to the Honourable, the Chief Judge of Anambra State for the transfer of the suit from the learned trial judge, Hon. Justice A. O. Okuma to any other Court within the same jurisdiction. The application for transfer was filed in the Registry of the trial Court on 8/9/2014, paid for and stamped as such. See pages 219 to 221 of the Record. Despite the application and the Appellant’s allegations that necessitated the application for transfer, the Registry of the Honourable trial Court kept mute and did not make any comment to the Honourable, the Chief Judge denying the allegations.

The content and grounds of the application for transfer and evidence of lack of fair hearing are as enumerated in the application on pages 219 to 221 and ground 9 of the notice and Grounds of Appeal on page 479 to 481 of the record. Counsel drew the attention of this Court to the fact that notwithstanding all the weighty allegations contained in the pages above, which were not only filed in the registry of the trial Court, but also brought to the notice of trial Court during trial on 2/6/2015, neither the Assistant Registrar of the trial Court nor the trial Court made any comment or denial in any form to the Hon. the Chief Judge. See page 287, lines 10 to 12 of the Record.

On the whole, Counsel argued that it is crystal clear that the above scenarios presented vividly a situation of denial of fair hearing. The question now, he said is what is the effect of denial of fair hearing? Counsel submitted that the law is that the effect of denial of fair hearing is that entire proceedings no matter how well conducted will amount to nullity. See the case of LEADERS CO vs. BAMAIYI (2011) 46 VOL. 2 NSCQR 813. It is also the law that fair hearing is an issue of jurisdiction. See the case of OVUNWO vs. WOKO (2011) 46 VOL. 2 NSCQR.

Learned Counsel on the strength of all arguments above, urged this Court to allow this appeal and set aside the decision of the trial Court delivered on 13th day of November, 2017 for relying on documents, the admissibility of which was not ruled on and which in law are inadmissible.

RESPONDENTS:
ISSUE ONE:
Whether the lower Court properly evaluate all the evidence before it in arriving at its judgment?

The contention of learned Respondents Counsel is that a case (including Appeal) is fought on relief or reliefs sought and anything done outside the relief sought goes to no issue. Counsel cited the case of OTUN & ORS vs. OTUN & ORS (2004) LPELR – 2832 (SC) to buttress his argument. Counsel stated in addition that in this Appeal, the Appellant prayed the Court to: “set aside” the decision of the High Court 3 Onitsha Judicial Division Presided over by A. O. Okuma, J who delivered judgment on the 13th November, 2017 in favour of the Plaintiff now the 1st Respondent. He said that other reliefs sought are a follow up on issue one of the Appeal. Counsel argued that in spite of all these there is not a prayer directed to this Court for a retrial or even a prayer for the Court to invoke its powers pursuant to Section 16 of the Court of Appeal Act and determine the case on its merits. Counsel referred this Court to the case of EKPENYONG & ORS vs. INYANG EFIONG NYONG & ORS (1975) LPELR – 1090 (SC). Since this Court is not charitable organization, it is not in a position to grant a relief not sought for.

On the first issue nominated by the Appellant on whether the trial Court was right to rely on EXHIBIT P1 (unregistered Deed of Transfer dated 27/G/2012) and EXHIBIT P2 (Allocation paper dated 23/11/2012) tendered by the 1st Respondent as proof of title and without ruling on its admissibility as such, Counsel submitted that the Court below was right to rely on the documents; contending that EXHIBITS P1 and P2 even though not admissible if not registered still confers ownership of C 480 A, the subject of this suit to the 1st Respondent. See pages 4 – 9 of the Record.

Counsel cited the case of AGWUNEDU vs. ONWUMERE (1994) 1 NWLR (PT. 321) 375, DR. SAMUEL U. ISITOR vs. MRS. MARGARET FAKARODE (2018) 10 NWLR (PT. 1628) 417 where it was held that: “A sales receipt entitles a person to an equitable ownership of land in dispute. In the instant case, the sale receipt tendered by the Respondent entitled her to an equitable ownership of land in dispute”. In the instant case, Counsel argued that the unregistered deeds entitled the 1st Respondent to the ownership of shop or stall No. C 480 A above and that EXHIBIT P2 (Allocation paper dated 23/11/2012) confers equitable right of stall C 480 A Ose Okwuodu Market to the 1st Respondent in this suit.

Counsel referred this Court to the case of the GLORY LAWRENCE ALELU vs. CHRISTIAN EZE (2015) 13 NWLR (PT. 1475) 35 where it was held that: “the admissibility of an unregistered registrable land instrument depends on the purpose for which it is being sought to be admitted. If the purpose is to prove or establish title to land, it will not be admissible under Section 15 of the land Registration Law, Cap 85, Laws of Kaduna State, 1991. It is, however, admissible if tendered to show that there was a transaction between the parties, and in proof of the fact that money changed hands. It is also admissible if tendered to establish a fact which one or both parties here pleaded. In such cases, the document does not qualify as instrument for purposes of the land registration law. In this case, the reliefs sought by the Respondent in his amended statement or defence and counter-claim were an order that the Appellant was bound by the agreements between the parties and for specific performance of the agreements. In the circumstance, the purpose for which the power or attorney (EXHIBIT D1) Memorandum or handover of Ownership (EXHIBIT D2) and Deed of Assignment (EXHIBIT D3) were executed by the parties and that money changed hands. The trial Court was therefore right when it admitted the documents in evidence”.

According to Counsel, the 1st Respondent pleaded EXHIBIT P1 and P2 to show that there was a transaction between him and the 2nd- 4th Respondents who are the rightful owners of stall C 480 A above. The 1st Respondent further tendered EXHIBIT P1 and P2 to establish that there was an exchange of money from the 1st Respondent to the 2nd – 4th Respondents. However, the 1st Respondent was able to prove to the trial Court that the 2nd – 4th Respondents were bound by EXHIBIT P1 (Deed of Transfer dated 27/6/2012) for specific performance of the agreement EXHIBIT P1.

Counsel further submitted that the trial Court was therefore right when it admitted the documents in Evidence. See OLANREWAJU COMM. SERVICES LTD & SOGAOLU vs. MRS. JUMOKE SOGAOLU (2015) 12 NWLR (PT. 1473)311 – 320. In light of the above, Counsel urged this Court to dismiss this appeal and upheld the decision of the Court below.

ISSUE TWO:
Whether the trial Court was right in holding that there was no adverse pleading or evidence led by the parties against the Ikporo Onitsha Six (6) kindred Co-operative Union Ltd and relied on the evidence of DW1 as that of untainted and independent witness?

Learned Counsel argued that the above holding of the trial Court was entirely borne out of the pleadings and evidence before the trial Court. Counsel stated that in the pleadings, trial Court found out that it is the Ikporo Onitsha who is the owner of the land in dispute that contracted the 2nd – 4th Respondents who sold the stall C 480 A Ose Okwuodu Market that is not theirs to the 1st Respondent. The said stall C 480 A above is the extra stall on each line of the market’s altered reconstruction. To Counsel, it is the duty of the Appellant to satisfy the Court on the assertion that Ikporo Onitsha are the owners of shop or stall C480A not the 1st Respondent.

Furthermore, Counsel submitted that the trial Court never, in His Judgment stated that pleading were adverse against Ikporo Onitsha Six (6) kindred Co-operative Union Ltd. He said that at the trial Ikporo Onitsha was represented by her Secretary who testified as DW1 and that in her evidence at pages 406 – 416 of the record of appeal, DW1 (Stella Arima) said that she is Secretary of Ikporo Onitsha Six (6) kindred Co-operative Union Ltd. She further stated clearly and unambiguously that among shop/stall C480 and C480A, C480 is theirs – Ikporo Onitsha Six (6) kindred Co-operative Union Ltd. See page 408 of the record. Counsel stated that a careful perusal of the judgment of the trial Court shows that based on the evidence and visit to locos inquo of the stall in dispute, the trial Judge in his finding held that, there was no adverse evidence led by the parties against the Ikporo Onitsha Six (6) kindred Co-operative Union Ltd, who was carefully and legally represented through her Secretary DW1.

Counsel further submitted that the Appellant failed in proving its case. See the cases of EPI vs. AIGBEDION (1972) 10 SC 53 AT 59, ETIM vs. OYO (1978) 6 – 7 SC AT 91 AT 97 – 98, EZEUDU vs. OBIAGWU (1986) 3 SC 1, WILLY IBE vs. BILLA AUTA (1998) NWLR (PT. 538) 497, OGEDENGBE vs. BALOGUN (2007) 30 WRN 47, ANYANWU & 5 ORS vs. UZOWUAKA & 13 ORS (2009) 13 NWLR (PT. 1159) 445. See also Section 131, 132, 133) of the Evidence Act.

ISSUE THREE:
Whether the trial Court was right in entering judgment for the 1st Respondent and granting an injunction against the Appellant without the Respondent proving the particular location, boundaries, dimension and extent of area covered by the shop in dispute being claimed?

In arguing this issue, Counsel drew the attention of this Court to the fact that the 1st Respondent as the Plaintiff at the lower Court pleaded that he applied and purchased shop or stall No: C480A at Ose Okwuoclu Market Onitsha from the 2nd – 4th Respondents for a valuable consideration or N400,000.00 (Four Hundred Thousand) Naira only, and the receipt was issued to him by his Vendor who are the owners of the said shop or stall. He further stated that a deed of transfer was also issued to him in respect of the said stall C480A and other documents acknowledged the transfer or hand over of the stall to him. Also, in their defence to the claim of the Plaintiff now the 1st Respondent, the 2nd – 4th Respondents then 1st – 3rd Defendants in their pleadings stated that they are the owners of the stall C480A and transferred it to the Plaintiff now (The 1st Respondent at a valuable consideration pursuant to their inheritance of the said stall C480A from their agreement dated the 28th day of March, 2011. See pages 4 – 9, 33 – 37 and 48 – 54 of the Record. In her pleading, the 4th Defendant now the Appellant filed her statement of defence on the 15th day of January, 2018 and averred that she inherited stall C480 Ose Okwuodu Market, Onitsha from her late husband who was occupying same (page 4 of the statement or defence and counter-claim of the Appellant at pages 72 of the record). The Appellant who knows the market very well stated that stall No: C480 never existed until after the reconstruction of the market by the 2nd – 4th Respondents. Counsel further stated that from the agreement of the Appellant in her pleadings. It is very clear and open that the identity of stall C480A is not in doubt known by the parties.

Also, Counsel submitted that at the conclusion of trials, the trial Court on the 22nd day of June, 2017 visited the shops/stalls in dispute. The Plaintiff now the 1st Respondent at the locus in quo showed the trial Court the shops or stall No: C480A at the beginning of the line with the “A” written in it deleted with the mark left there. The Plaintiff now the 1st Respondent further at the locus showed shops opposite the shop in dispute with shop No: C479A at the beginning with shop No: C479 following it as in their own line (i.e. C480A before or followed by C480 without A). See page 469 of the Record.

It is the further contention of Counsel that with the aforesaid oral evidence and findings of the trial Court, it is clear and open that the Plaintiff/1st Respondent has proved the location or position and dimensions of the shop or stall C480A of Ose Okwuodu Market Onitsha. See the case of PRINCE POLYCARP OKEKE vs. AMECHI NNOLIM & ORS (2015) 5 NWLR (PT. 1453) AT 444 at 450 where it was held: “In an action for declaration of title, for the claimant to succeed, he must also ascertain the root of his title”.

Counsel argued that the Plaintiff/1st Respondent proved his case by ascertaining the origin of his shop and the original owners-lkporo Onitsha Six (G) kindred Co-operative Union Ltd to the 2nd – 4th Respondents who inherited same and sold same to him. See also the case of MR. ABIODUN FAGBURO & 9 ORS vs. ALHAJI SULEMAN AKINBAMI & 4 ORS. Furthermore, Counsel stated that it is only where the parties to a claim of declaration traced their title to different people or families that the Plaintiff or Defendant has the onus to prove his title in one of the five (5) established ways of proving title to land of which a traditional history is one. Also on the other hand, where there is admission of the title of the vendor, it is enough for the Plaintiff to plead the document of such, and produce same in course of trial.

According to Counsel, the burden of proof is on the Plaintiff in an action for declaration of title to establish his claim by preponderance of evidence. It is enough if he produces sufficient and satisfactory evidence in support of his claim. See the case of OLADOTUN LAWAL vs. GANIYU AKANDE (2008) 2 NWLR (PT. 1126) 425.

It is the submission of Counsel that from all the circumstances, that the Appellant in this case is wrong in holding that the trial Court was not right in its Judgment. See also the case of CHUKWUEMEKA ANYAFULU & 4 ORS vs. MADUEGBUNAM MEKA & 5 ORS (2014) 7 NWLR (PT. 1406) 396 – 400. Counsel further submitted that the Plaintiff now the 1st Respondent pleaded his title to shop or stall C480A from Onitsha to Ikporo Onitsha Six (6) kindred Cooperative Union Ltd, to the 2nd – 4th Respondents who are his vendor. Also, Counsel argued that illegal possession of a property does not amount to ownership, that the Appellant has been in the shop or stall C480A since her act of trespass and forceful entry does not amount to ownership or possession in law.

ISSUE FOUR:
Whether the 1st Respondent proved his claim as required by law to entitle him to Judgment at the lower Court?

Counsel submitted that in proving his case, the Plaintiff/Respondent relied on the traditional history of the shop/stall No: C480A. He argued that it is the law that for a claimant to prove declaration of title, he must rely on any of the five methods recognized by the law. See the cases of IDUNDUN vs. OKUMAGBA (1976) 9 – 10 SC 277 cited with much approval in the case of UZOCHUKWU vs. ERI (1997) 7 NWLR (PT. 514) 535 AT 538, NIKADO vs. OBIANO & ORS (1996) 1 NWLR (PT. 44) 253.

Counsel stated that the 1st Respondent not only proved the number of the requirements but went further to prove requirements numbers (b) (d) (e) above. He said that in his evidence, the 1st Respondent on the 24th day of April, 2016 tendered all the title documents that related to his entitlement to shop or stall C480A. See pages 391 – 401 of the Record. Further in the proof of his entitlement, the 1st Respondent on the 22/6/2017 on the visit to locus by the trial Court shows shop C505A opposite C454; that he also showed shop C480 and where the letter “A” was wiped from it. Counsel referred this Court to pages 436 – 438 of the record of Appeal. Learned Counsel further drew the attention of this Court to the case of MR. ABIODUN FAGBARO & 9 ORS vs. ALHAJI SULEMAN AKINBAMI & 4 ORS (SUPRA).

According to Counsel, the Plaintiff pleaded documents of sale of shop or stall No: C480A in his claim. See pages 4 – 9 of the Record. Again, it is the contention of Counsel that the Plaintiff/1st Respondent proved his case to warrant the award of his claims through his pleadings and in the course of trial. Counsel urged this Court to so hold and dismiss this appeal of the Appellant.

ISSUE FIVE:
Whether the trial Court was dispassionate or fair in handling the trial at the lower Court between the parties?

Counsel in arguing this issue, submitted that what determines the case of a party is the evaluation of evidence before the presiding Judge, where such case is pending. See the case of ALHAJI WAHAB ARIJE vs. MUSTAPHA ARIJE & 2 ORS (2018) 16 NWLR (PT. 1644) 72 where it was held that: “The evaluation of evidence is primarily the exclusive preserve of the trial Court which has the unique opportunity of seeing and hearing the witnesses testify and of observing their demeanour”.

It is the further submission of Counsel that the trial Court was neither influenced nor unfair in handling the trial at the lower Court between the parties. Counsel stated that, what determines the case of parties is the balance of probability, which in itself means preponderances of evidence. To Counsel, the trial Court arrived at its judgment between the parties in this suit by evaluating the evidence of the two parties before him. See the case of MAHAMMED HUSSENI & ORS vs. MAHAMMADU NDEJIKO MOHAMMED & 4 ORS (2015) 3 NWLR (PT. 1445)109.

Counsel further stated that the trial Court placed the evidence adduced before it by the parties in the imaginary scale to see which side of the scale is heavier, not by the number of witnesses called by each party, but by the quality or probative values of the testimony of the witnesses. This is the import of deciding a case on balance of probabilities. It is the contention of Counsel that the trial Court in this case endorsement was based on a preponderance of evidence. Counsel urged this to discountenance the Appellant’s Appeal against the judgment of the trial Court. See the case of GLORY LAWRENCE ALELU vs. CHRISTIAN EZE (2015) 13 NWLR (PT. 1475) 80.

Counsel submitted that there must be on record how the Court arrived at its conclusion of preferring the piece of evidence to the other stating in the process that the trial Court in its Judgment is fair and just to the parties and gave its judgment based on the preponderance of evidence before it at the trial. On the strength of all arguments above, Counsel urged this Court to dismiss this appeal and affirm the decision of the trial Court.

RESOLUTION OF APPEAL
The first issue nominated by the Appellant for the determination of this appeal is the question of whether the trial Court was right to have relied on EXHIBIT P1 (unregistered deed of transfer dated 27/6/2012) and EXHIBIT P2 (Allocation paper dated 23/11/2012) tendered by the 1st Respondent as proof of title and without ruling on its admissibility. The contention of learned Appellant’s Counsel is that both EXHIBIT P1 (unregistered deed of transfer) dated 27/6/2012 and EXHIBIT P2 (Allocation paper from Onitsha North Local Government) dated 23/11/2012 were among the 1st Respondent’s documents provisionally admitted as exhibits and that their admissibility was an issue that was fully argued by the parties in their final written addresses, but that the Court below failed to rule on the objections and went ahead to rely on them.

This Court is of the view that what is important as far as this issue is concerned, is whether by relying on the said exhibits, the Court below did not run afoul of any provisions of the law. What this Court should therefore be concerned about in essence is whether by so doing the trial Court was right to have relied on Exhibits P1 (unregistered Deed of Transfer dated 27/6/2012) and P2 (Allocation paper dated 23/11/2012) tendered by the 1st Respondent?

The settled position of the law is that the Court below was right to have relied on the documents. The said exhibits even though not admissible if not registered, especially as they cannot be used in transferring title, they still nevertheless, will be useful in determining the question of ownership of C 480 A, the subject of this suit to the 1st Respondent. In law, a sales receipt entitles a person to an equitable ownership of land in dispute. In the instant case, the sale receipt tendered by the Respondent entitled her to an equitable ownership of land in dispute. See the cases of AGWUNEDU vs. ONWUMERE (1994) 1 NWLR (PT. 321) 375, DR. SAMUEL U. ISITOR vs. MRS. MARGARET FAKARODE (2018) 10 NWLR (PT. 1628) 417 cited by learned Counsel. See the case of REGISTERED TRUSTEE OF APOSTOLIC FAITH CHURCH MISSION & ANOR vs. JAMES & ANOR (1987) LPELR-2946 SC, where the apex Court per KAZEEM, JSC had this to say on the subject:
“In Dr. Joseph C. Okoye v. Dumez (Nig.) Ltd & Anor (1985) 1 NWLR 783, Bello, JSC (as he then was) dealt with the principle again at page 790 more clearly thus: “It is trite law that where a purchaser of land or a lessee is in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchase money or the rent to the vendor or the lessor, then in either case, the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase of money or rent. See Savage v. Sarrough (1937) 13 N.L.R. 141, Ogunbambi v. Abowaba (1951) 13 WACA 222, Fakoya v. St. Paul’s Church, Shagamu (1966) 1 All N.L.R. 74, Oni v. Arimoro (1973) 3 S.C. 163, Bucknor-Maclean v. Inlaks (1980) 8-11 S.C. 1 and Obijuru v. Ozims S.C. 48/1984 delivered on 4th April, 1985, unreported yet.” Ed. Obijuru v. Ozims (1985) 2 NWLR, (Pt.6) 167 SC.”

Against the backdrop of the foregoing, it is clear that the unregistered deeds entitled the 1st Respondent to the ownership of shop or stall No: C480A and that Exhibit P2 (Allocation paper dated 23/11/2012) confers equitable right of stall C480A Ose Okwuodu Market to the 1st Respondent in this suit. In the instant appeal, it is clear that the 1st Respondent pleaded Exhibits P1 and P2 to show that there was a transaction between him and the 2nd- 4th Respondents who are the rightful owners of stall C480A. It will be recalled that the 1st Respondent further tendered Exhibits P1 and P2 to establish that there was an exchange of money from the 1st Respondent to the 2nd – 4th Respondents. This issue is resolved in favour of the 1st Respondent.

In respect of issue two, dealing with the question of whether the trial Court was right in holding that there was no adverse pleading or evidence led by the parties against the Ikporo Onitsha Six Kindred Cooperative Union Ltd and relied on the evidence of DW1 as that of an untainted and independent witness, Appellant was of the view that the Court’s finding was not borne out of the pleadings and evidence before the trial Court. The Appellant as the 4th Defendant at the lower Court pleaded in paragraphs 14 and 15 of her statement of defence and gave evidence in paragraphs 15 and 16 of her deposition on oath that the 2nd – 4th Co-Respondents as the 1st- 3rd Defendants found her shop No: C480 irresistible because of its location at the terminal end of “C” block, which allows for more access to customers and colluded with some members of Ikporo Onitsha Six Kindred Cooperative Union Ltd to invent number C480A, which never existed in the market before the reconstruction of the market.

A careful study of the printed records will show that the finding complained about was entirely borne out of the pleadings and evidence before the trial Court. What the Court below found out and which encapsulated the Court’s decision on the issue, is that in the pleadings the trial Court found out that it is the Ikporo Onitsha who is the owner of the land in dispute that contracted the 2nd – 4th Respondents who sold the stall C480A Ose Okwuodu Market that is not theirs to the 1st Respondent. The said stall C480A above is the extra stall on each line of the market’s altered reconstruction.

The trial Court never, in its judgment stated that pleading were adverse against Ikporo Onitsha Six (6) kindred Co-operative Union Ltd. At the trial, Ikporo Onitsha was represented by her Secretary who testified as DW1 and that in her evidence at pages 406 – 416 of the record of appeal, DW1 (Stella Arima) said that she is Secretary of Ikporo Onitsha Six (6) kindred Co-operative Union Ltd. She further stated clearly and unambiguously that among shop/stall C480 and C480A, C480 is theirs- Ikporo Onitsha Six (6) kindred Co-operative Union Ltd. See page 408 of the record. A careful perusal of the judgment of the trial Court, therefore shows that based on the evidence and visit to locos inquo of the stall in dispute, the trial Judge in His finding, found no adverse evidence led by the parties against the Ikporo Onitsha Six (6) kindred Co-operative Union Ltd, who was carefully and legally represented through her Secretary DW1.

The third issue dealt with the question of whether the trial Court was right in entering judgment for the 1st Respondent and granting an injunction against the Appellant without the Respondent proving the particular location, boundaries, dimension and extent of area covered by the shop in dispute being claimed. The Appellant had been of the view that from the pleadings and evidence of the parties at the Court below, the location or position and dimensions of the so called shop C480A that purportedly resulted from the reduction in sizes of the original shops, were squarely put in issue. He was of the further view that the reductions in sizes of the previous shops were agreed by the parties to be in both width and length, but that the 1st Respondent as Plaintiff did not prove the exact dimension and location of the resulting shop and the original ones, yet he was positively asserting that the shop at the extreme presently being occupied by the Appellant, which gave rise to the suit at the lower Court, is the extra shop resulting from the reductions.

What is probably clear as far as the 1st Respondent’s pleading at the Court below is that he applied and purchased shop or stall No: C480A at Ose Okwuodu Market Onitsha from the 2nd – 4th Respondents for a valuable consideration or N400,000.00 (Four Hundred Thousand) Naira only, and the receipt was issued to him by his vendor who are the owners of the said shop or stall. It is further clear that he stated that a deed of transfer was also issued to him in respect of the said stall C480A and other documents acknowledged the transfer or handover of the stall to him. In addition, what seems not to be in dispute is the defence to the claim of the Plaintiff where 1st – 3rd Defendants, who are 2nd to 4th Respondents on appeal, in their pleadings stated that they are the owners of the stall C480A and transferred it to the Plaintiff now (The 1st Respondent at a valuable consideration pursuant to their inheritance of the said stall C480A from their agreement dated the 28th day of March, 2011. See pages 4 – 9, 33 – 37 and 48 – 54 of the Record.

In her pleading, the 4th Defendant now the Appellant filed her statement of defence on the 15th day of January, 2018 and averred that she inherited stall C480 Ose Okwuodu Market, Onitsha from her late husband who was occupying same (page 4 of the statement or defence and counter-claim of the Appellant at pages 72 of the record). The Appellant who knows the market very well stated that stall No: C480 never existed until after the reconstruction of the market by the 2nd – 4th Respondents. What does not seem to be in dispute in this case, is the identity of stall C480A, which is known by all the parties.

In addition to the foregoing, the Court below on the 22nd day of June, 2017 visited the shops/stalls in dispute where the 1st Respondent at the locus in quo showed the trial Court the shops or stall No: C480A at the beginning of the line with the “A” written in it deleted with the mark left there. The 1st Respondent further at the locus showed shops opposite the shop in dispute with shop No: C479A at the beginning with shop No: C479 following it as in their own line (i.e. C480A before or followed by C480 without A). See page 469 of the Record.

What is therefore obvious in this case is that with the aforesaid oral evidence and findings of the trial Court, it is clear and open that the 1st Respondent proved the location or position and dimensions of the shop or stall C480A of Ose Okwuodu Market Onitsha. See the case of PRINCE POLYCARP OKEKE vs. AMECHI NNOLIM & ORS (2015) 5 NWLR (PT. 1453) AT 444 at 450, where it was held: “In an action for declaration of title, for the claimant to succeed, he must also ascertain the root of his title”. Based on the foregoing, there is no gainsaying of the fact that the 1st Respondent proved his case by ascertaining the origin of his shop and the original owners-lkporo Onitsha Six (G) kindred Co-operative Union Ltd to the 2nd – 4th Respondents who inherited same and sold same to him. See also the case of MR. ABIODUN FAGBURO & 9 ORS vs. ALHAJI SULEMAN AKINBAMI & 4 ORS. The Court below was therefore not of order to have made orders on injunctions against the Appellant.

On the fourth issue dealing with the question of whether the 1st Respondent proved his claims as required by law to entitle him to judgment at the lower Court, the contention of Appellant is that the 1st Respondent as Plaintiff failed to discharge the onus placed on him by law to entitle him to the reliefs he sought, saying in the process that the Relief (1) of the Plaintiff is a declaratory relief with respect to title to land or landed property and that the law is that the five recognized methods of proving title to land or property are required to be proved.

In disagreeing with the Appellant on this issue right away, it is clear from the records that in proving his case the Respondent as Plaintiff relied on the traditional history of the shop/stall No: C480A when he argued that it is the law that for a claimant to prove declaration of title, he must rely on any of the five methods recognized by the law. See the cases of IDUNDUN vs. OKUMAGBA (1976) 9 – 10 SC 277 cited with much approval in the case of UZOCHUKWU vs. ERI (1997) 7 NWLR (PT. 514) 535 AT 538, NIKADO vs. OBIANO & ORS (1996) 1 NWLR (PT. 44) 253.

A careful perusal of the records show that the 1st Respondent not only proved the number of the requirements but went further to prove requirements numbers (b) (d) (e) of the OKUMAGBA decision. In his evidence, the 1st Respondent on the 24th day of April, 3016 tendered all the title documents that related to his entitlement to shop or stall C480A. See pages 391 – 401 of the Record. Further in the proof of his entitlement, the 1st Respondent on the 22/6/2017 on the visit to locus by the trial Court shows shop C505A opposite C454; that he also showed shop C480 and where the letter “A” was wiped from it. See pages 436 – 438 of the record of appeal. Learned Counsel further drew the attention of this Court to the case or MR. ABIODUN FAGBARO & 9 ORS vs. ALHAJI SULEMAN AKINBAMI & 4 ORS (SUPRA).

According to Counsel, the Plaintiff pleaded documents of sale of shop or stall No: C480A in his claim. See pages 4 – 9 of the record. Again, it is the contention of Counsel that the Plaintiff/1st Respondent proved his case to warrant the award of his claims through his pleadings and in the course of trial. Counsel urged this Court to so hold and dismiss this appeal of the Appellant.

The fifth issue deals with the question of whether the 1st Respondent proved his claims as required by law to entitle him to judgment at the lower Court. The Appellant’s contention here is that the 1st Respondent as Plaintiff failed to discharge the onus placed on him by law to entitle him to the reliefs he sought. The settled position of the law is that the case of a party is won or lost, based on the balance of probability, which in itself means preponderance of evidence. In other words, for a party to be said to have won a case, it is basically a function of the balance of probability or preponderance of his evidence as evaluated by the Court below.
In the instant case, the trial Court arrived at its judgment between the parties in this suit by evaluating the evidence of the two parties before him. See the case of MAHAMMED HUSSENI & ORS vs. MAHAMMADU NDEJIKO MOHAMMED & 4 ORS (2015) 3 NWLR (PT. 1445)109. It is clear that the trial Court placed the evidence adduced before it by the parties in the imaginary scale to see which side of the scale is heavier, not by the number of witnesses called by each party, but by the quality or probative values of the testimony of the witnesses. This is the import of deciding a case on balance of probabilities. It is also clear that the decision of the trial Court in this case in endorsing the case of the 1st Respondent as Plaintiff was based on a preponderance of evidence. See the case of GLORY LAWRENCE ALELU vs. CHRISTIAN EZE (2015) 13 NWLR (PT. 1475) 80.

In the final analysis, this appeal fails as it is lacking in merit. It is therefore dismissed. Consequently, the judgment of the Court below delivered on the 13th day of November, 2017 is hereby affirmed. There will be cost of N50,000.00 in favour of the 1st Respondent.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, F. O. OHO, JCA.

I agree with his reasoning and conclusion. With fuller reasons given by my learned brother in the leading judgment, I agree that the appeal be dismissed. I adopt the order as to costs made by OHO, JCA in the leading judgment.

PATRICIA AJUMA MAHMOUD, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother, FREDERICK OZIAKPONO OHO, JCA.

I agree with my learned brother that this appeal lacks merit.

I too would and hereby dismiss this appeal.

I abide by the order made as to costs.