MRS. NGOZI MBAKWE v. IFEANYI BONIFACE ESIONE (2016)

MRS. NGOZI MBAKWE v. IFEANYI BONIFACE ESIONE

(2016)LCN/8432(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of March, 2016

CA/E/233/2010

RATIO

APPEAL: WHETHER A PARTY CAN ARGUE OVER ISSUES NOT APPEALED AGAINST
it is trite law that a party in an appeal cannot argue contrary to a finding, holding or decision he has not appealed against. See Awote & Ors v. Owodunni & Anor (1987) 5 SC 1 and Sparkling Breweries Ltd & Ors v. UBN Ltd (2001) 7 SC (Pt. 11) 146. PER EMMANUEL AKOMAYE AGIM, J.C.A.
LAND LAW: HOW IS COMPETING INTEREST IN LAND RANKED
As held by the Supreme Court in Kachalla v. Banki (2006) LPELR-1640 (SC) “the fundamental rule is that competing interest will generally rank according to the order of their creation.” PER EMMANUEL AKOMAYE AGIM, J.C.A.
COURT: EVALUATION OF CREDIBILITY OF A WITNESS; WHICH COURT HAS THE DUTY OF ASSESSING THE CREDIBILITY OF A WITNESS
It is settled by a long line of decisions that a trial Court has the exclusive power to judge the demeanor and credibility of a witness who it observed testify before it and to ascribe probative value to the oral evidence of such witness. See Ibuluya & Ors v. Dikibo & Ors (2010) LPELR – 1414 (SC). Unless it can be shown that the trial Court made improper use of the opportunity of observing the witness and listening to him in his testimony, this Court cannot interfere with the trial Court’s decision on the demeanor and credibility of such witness and any findings of facts based thereon. See Ibuluya & Ors v. Dibibo & Ors (supra). PER EMMANUEL AKOMAYE AGIM, J.C.A.
LAND LAW: POSITION OF THE LAW WHERE THERE ARE COMPETING INTERESTS OR CLAIM IN LAND
The law has remained well settled to the effect that where there are competing interests or claims by two or more persons to the same piece of land or the right to occupy the market stall, as it is in the instant case, which right is traceable to a common grantor, the position both in law and at equity, is that such competing rights will prima facie rank in order of their creation based on the maxim-qui prior est tempore potior est jure, meaning that he who is earlier in time is stronger in law. That is, where the equities are equal, the first in time of its creation has priority over the later. Ayanwale v. Odusanmi (2011) 12 SCNJ 362; Okelola v. Adeleke (2004) 7 SCNJ 103 at 111; Michael Romaine v. Christopher Romaine (1992) 2 SCNJ 25; Ugbo v. Aburime (1994) 8 NWLR (Pt. 360) 1 (SC). PER TOM SHAIBU YAKUBU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

MRS. NGOZI MBAKWE Appellant(s)

AND

IFEANYI BONIFACE ESIONE Respondent(s)

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On 29/3/2004, the respondent herein, as plaintiff, filed a claim and caused a writ of summons to issue same day commencing Suit No. O/62/2004 against the appellant herein, as defendant in the High Court of Anambra State sitting at Onitsha. The plaintiff claimed for the following reliefs:
“1. Declaration that the plaintiff is the person entitled to the use and occupation of Market Stall No. OSLG/MH/100 ? 1st floor (double stall) situate at Bridge Head Market, Onitsha.
2. Injunction restraining the defendant either by himself or by his privies or agents or servants from disturbing the plaintiff’s right to possess and use the said market stall.
3. N30,000,00 being the value of the iron door removed by the defendant.
4. N1,000,000.00 damages against the defendant for disturbing the plaintiff’s right to occupy and use the said market stall.”

The pleadings upon which the case was tried and determined were as follows – Amended statement of claim, amended statement of defence.

The plaintiff testified as PW1 and also adduced evidence through PW2 in support of his

claim.

The defendant did not testify as a witness, but adduced evidence through DW1, her husband to rebut the case made out by the plaintiff’s evidence.

Following the filing, exchange and adoption of final written addresses by both sides, the trial Court on 14-7-2010 rendered judgment holding that the plaintiff’s claim succeeded in part and granted all the reliefs claimed by the plaintiff except the relief of one million naira damages for disturbance of plaintiff’s right to occupy and use the market stall.

Dissatisfied with this judgment, the defendant on 26/7/2010 commenced this appeal No. CA/E/233/2010 by filing a notice of appeal containing ten grounds for the appeal.

Both sides have filed, exchanged and adopted the following briefs – appellant’s brief, respondent’s brief and appellant’s reply brief.
The appellant’s brief raised the following issues for determination-
“1. Whether the trial judge was right to have suo motu and unsolicitedly amended the pleadings of the respondent in order to fill the yawning gaps in the case of the respondent (Ground 1).

2. Whether the Court below was right to hold that stall

No. MH/ACB/100 occupied by the defendant/appellant is the same with Stall No. OSLGH/MH/IQ0 claimed by the plaintiff/respondent and that it was the parties that called the stall different names (Ground 3 and 4).
3. Whether the trial Court was right to hold that Exhibit “A” of the respondent came first in time before the Appellant’s Exhibit “E” when both exhibits were issued over different market stalls (Ground 5).
4. Whether the trial Judge was fair to the appellant in the way he adopted the approach of finding faults in the case presented by the appellant (Grounds 2, 6 and 8).
5. Was the trial Court was right to have found for the respondent on the ground that the respondent pleaded and gave evidence of payment of N600,000.00 over the stall in dispute without more (Ground 7).”

The respondent adopted the above issues for determination as raised in the appellant’s brief.
I will determine this appeal on the basis of the issues for determination raised in the appellant’s brief.
?Let me start with issues one and 5 together.

Learned counsel for the appellant has argued that paragraph 5 of the amended statement of claim had

stated that “the plaintiff negotiated with Coast Link Nigeria Limited and finally agreed to purchase two of the said double market stalls for the sum of N600,000.00, which sum the plaintiff paid to it and the transaction was evidenced in an agreement dated 27/6/2002”, that this averment is the fulcrum of the plaintiff’s case and is saying what was bought for N600,000.00 and what is disputed as two market stalls, that the plaintiff in his evidence in chief testified that his transaction with Coast Link Nigeria Limited was with respect to the shop in dispute in this suit and he paid the sum of N600,000.00 to Coast Link Nigeria Limited for the purchase of market stall No. OSLG/MH/100 (double stall) at the Bridge Head Market, Onitsha, that the trial Court in its judgment commented that the word “two” in paragraph 5 of the amended statement of claim was incorrectly used and thereby created the wrong impression that there were two stalls in dispute when only one stall was actually in dispute, that the trial Court thereby substituted its own word for the word used in paragraph 5 of the amended statement of claim, that this is not permitted by law, that the trial

Court suo motu amended the said paragraph 5 so as to enter judgment against the appellant, that there were yawning gaps in the case presented by the respondent, that it is not within the province of the Court to fill those gaps as the trial Court did, that a Court cannot play a role with a view to rendering assistance to any of the parties in a case before it as it is not its duty to make a case for any of the parties, for that would amount to descending into the arena. For these submissions he relied on Samaca Entr. Ltd v. New Nigeria Bank Plc (2006) All FWLR (Pt. 293) 193, Otaju v. Oluguna (1992) 8 NWLR (Pt. 262) 752, Kraus Thompson Organization Ltd v. University of Calabar (2004) All FWLR (Pt. 209) 1148, Commissioner for Works, Benue State v. Devcom Development Consultants Ltd (1988) 3 NWLR (Pt. 83) 407, Olawore v. Ojo (2006) All FWLR (Pt. 341) 1382 and Mobar v. Ali (2002)1 NWLR (Pt. 747) 95.

Learned Counsel for the respondent has argued in reply that the trial Court did not amend the respondent’s pleadings as claimed by the appellant, that only one market stall was in dispute between the parties which the respondent referred to as OSLG/MH/100, 1st

floor (double stall) situate at Bridge Head Market Onitsha, that the appellant who referred to the stall in dispute as MH/ACB/100 stated in his pleadings and evidence that the respondent reported her to the police in respect of the said market stall in dispute, that the fact that the respondent’s pleading in paragraph 5 of his amended statement of claim stated that he agreed to purchase two of the double market stall N600,000.00, did not alter the fact that only one market stall was in dispute between parties, that the respondent pleaded in paragraph 6 of the amended statement of claim that on 21/5/2002 Coast Link Nigeria Limited applied to Onitsha South Local Government Council for a change of ownership of one of the said two double stalls, that the said one is No. OSLG/MH/100 (double stall) 1st floor in favour of the respondent, that the payment of N600,000.00 by the respondent to Coast Link Nigeria Limited for two market stalls had nothing to do with the fact that Coast Link Nigeria Limited applied to Onitsha South Local Government Council for approval of transfer of ownership of one market stall No. OSLG/MH/100 1st floor (double stall) situate at Bridge

Head Market Onitsha to the respondent and it is the ownership of this stall that was in issue, that the respondent was not bound to prove that he purchased two market stalls from Coast Link Nigeria Limited, since it is only one market stall that was in dispute between the parties herein, and that the trial Court did not in any way amend the pleadings of the respondent or fill any gaps in the respondent’s case.

Let me now consider the merit of the above arguments.
I do not agree with the view of the trial Court that the word “two” in paragraph 5 of the amended statement of claim was incorrectly used and that this incorrect use of the word created the impression that two market stalls were in dispute, when only one double stall is in fact in dispute. There was no basis for this view of the trial Court and its view that “it appears Learned Counsel for the plaintiff mistook the word “double” for “two”. Also, I do not agree with the submission of learned counsel for the appellant that in paragraph 5 of the amended statement of claim the respondent said two market stalls were in dispute.

Paragraph 5 of the amended statement of claim states

thusly- “Coast Link Nigeria Limited became entitled to the said market stall by virtue of an agreement dated 26/4/2002 between it and the Onitsha South Local Government Council whereby Coast Link Nigeria Limited would construct thirty five market stalls. (including No. OSLG/MH/100 (double stall) 1st floor) at Bridge Head Market Onitsha, now in dispute.”

The wordings of this paragraph are clear and unambiguous that under an agreement evidenced in writing and dated 27-6-2002 between Coast Link Nigeria Limited and the respondent, the later agreed to purchase two double market stalls for the sum of N600,000.00 and paid the sum for the said two market stalls. There is nothing in the wordings of the said paragraph 5 stating or suggesting that the said two market stalls were in dispute in this case.

I agree with the submission of learned counsel for the respondent that the case stated by the respondent in paragraph 6 of the amended statement of claim is that on 21st May 2002, Coast Link Nigeria Limited did apply for the approval of transfer of ownership of only one of the two double market stalls from the company to the respondent. The said paragraph

6 reads thusly- “On the 21st day of May, 2002 Coast Link Nigeria Limited applied to the Onitsha South Local Government Council for change of ownership of one of the said double stalls No. OSLG/MH/100 (double stall) – 1st floor in favour of the plaintiff.”

Paragraph 7 of the amended statement of claim state that “the Onitsha South Local Government Council approved the application vide its letter No. OSLG/C.26/Vol. 111/196 of 23rd May, 2002.”

So it is glaring from a combined reading of paragraphs 5, 6 and 7 of the amended statement of claim that the case of the respondent in his pleading is that while he paid Coast Link Nigeria Limited for the purchase of two double market stalls, Coast Link applied to the Onitsha South Local Government Council for the approval of the transfer of the company’s ownership of only one market double stall No. OLSG/MH/100 to the respondent and that the said council granted the approval.

?The respondent further stated in his pleading in paragraphs 9, 10, 11 and 12 of the amended statement that following his receipt of the letter of approval of his ownership of market stall No. OSLG/MH/100, he installed an iron

door there and locked same with padlocks, that the defendant and her husband had approached him requesting that he sell his said stall to the defendant and he refused, and that in January 2003, the appellant and her agents broke into the said market stall, removed the iron door and took possession of same, physically beating up the respondent in the process, with a warning that the respondent should not come there again.
The said paragraphs read thusly-
“9. As soon as Coast Link Nig. Ltd. handed over letter No. OSLG/C.26/Vol. 111/196 of 23rd May 2002 to the plaintiff, he installed an iron door on the market stall and locked the same with pad locks. The plaintiff will tender the receipt for the purchase of the iron door dated 16/7/02.

10. It will be recalled that the defendant and her husband had earlier approached the plaintiff and requested the plaintiff to sell the market stall to her, but the plaintiff refused.

11. Some time in January, 2003, the defendant aided by some rascals (“thugs”) broke into the said market stall, removed the iron door and took over possession of the market stall. The defendant and the said rascals

beat up the plaintiff and warned him not to come to the market stall any longer. The plaintiff reported the incident to the police.
12. The defendant has continued to disturb the plaintiff’s ownership and right to conduct his business in the market stall and will not relent unless ordered by this Honourable Court.”

Paragraph 4 of the amended statement of claim states that it is market stall No. OSLG/MH/100 (double stall) that is in dispute in this case. The said paragraph reads thusly- “Coast Link Nigeria Limited became entitled to the said market stall by virtue of an agreement dated 26/4/2002 between it and the Onitsha South Local Government Council whereby Coast Link Nigeria Limited would construct thirty five market stalls. (including No. OSLG/MH/100 (double stall) 1st floor) at Bridge Head Market Onitsha, now in dispute.”

It is clear from the foregoing that the case of the respondent in his amended statement of claim is that even though he paid for two market double stalls, only his ownership of one of them was perfected by the company and the council and it is that one that is in dispute in this case.

?The erroneous view

of the trial Court that the word “two” in paragraph 5 of the amended statement of claim was incorrectly used, that the incorrect use created the impression that two market double stalls were in dispute and that learned counsel for the plaintiff mistook the word “double” for “two” did not amount to amending the respondent’s amended statement of claim or filling gaps in the respondents case or making a case for the respondent. In any case, the error did not influence the judgment because the trial Court indicated therein that it overlooked the said incorrect use of the word “two”. So that portion of the judgment was a mere observation without more. Having stated therein that it was overlooking what it perceived as a mistake or error, the heavy weather made of the said portion of the judgment by the appellant under issue No. 1 is clearly unnecessary and academic. Observations by a Court in its judgment that did not influence any of its decision, holding or finding in the judgment and or the final outcome of the judgment constitute obiter dictum, which is a statement in passing that did not influence the reason or ground for the decision. Such an observation

cannot constitute a valid or sustainable ground of appeal against the judgment in which the observation was made. See Balonwu & Ors v. Governor of Anambra State & Ors (2009) LPELR-729 (SC), Odunukwe v. Ofomata & Anor (2010) LPELR-2250 (SC), Nwankwo & Anor v. Ecumenical Development Cooperative Society (EDCS) U.A. (2007) 1-2 SC 145 and Onafowokan & Ors v. Wema Bank Plc & Ors (2011) LPELR-2665 (SC).

For the above reasons, I resolve issues one and five in the appellant’s brief in favour of the respondent.

Let me now consider issue two.
Learned counsel for the appellant after reproducing some paragraphs of the pleadings of both sides, some portions of their evidence and some portions of their respective final address at the trial Court, concluding that from the reproduced passages of the pleadings and evidence of both sides and some documentary evidence tendered by them that Market stall No. MH/ACB/100 occupied by the appellant is different from stall No. OSLG/MH/100 claimed by the respondent, he argued that the conclusion of the trial Court that “Even though the defendant tried to show that the full stall No.

MH/ACB/100 she occupies at the Bridge Head Market, Onitsha is different from the one claimed by the plaintiff, it is obvious from the totality of evidence before the Court that both parties dispute over the same stall is perverse as it is not supported by the pleadings and evidence of both sides.

The appellant’s brief under this issue equally complained against the portion of the judgment that reads thusly ? “The submission of learned counsel for both sides which tended to show that the stalls claimed by both parties are different from each other is not borne out by the evidence before this Court. As stated earlier both parties dispute over the same market stall was called different names by both parties in their pleadings.” Learned counsel for the appellant has argued that this portion of the judgment is perverse as it is not supported by the pleadings and evidence of both parties and that it was not the parties that gave the stalls the different names, it was the Onitsha South Local Government Council that stated the name of each stall in the approval of allocation papers such as exhibits B and F issued by it to respondent and appellant

respectively.

Learned Counsel for the respondent argued in reply that the above reproduced portions of the judgment of the trial Court are supported by the pleadings and evidence of both sides and that the trial Court rightly held that stall No. OSLG/MH/100 and stall No. MH/ACB/100 are the same.

Let me now consider the merit of the above arguments.
Learned counsel for the appellant failed to demonstrate that the decision that the two names describe the same market stall is not supported by the pleadings and evidence. It is not enough to assert that the finding, holding or decision of a Court is perverse because it is not supported by the pleading and evidence. The party so asserting must establish that assertion by reference to the pleadings and evidence that show that the decision is contrary to the pleadings and evidence. This is moreso, where as in this case, the trial Court had relied on the contents of specific pieces of documentary evidence as the basis for its conclusion. The appellant should have referred to the same documentary evidence and demonstrated that they do not support that conclusion. Learned counsel for the appellant

in his arguments against the said conclusion of the trial Court did not complain about the reasons the trial Court gave for its decision. The argument was silent on the trial Court’s reliance on certain exhibits as the basis for its decision. Without complaining against or questioning the basis for a decision, I fail to see how an appellant can validly contend that the decision is wrong or perverse. Such an argument is empty and time wasting.

It is noteworthy that in reproducing the portion of the judgment of the trial Court complained against under issue 2, the appellant omitted to reproduce the part of the judgment that stated the basis for the conclusion reproduced in the appellant’s brief. I am inclined to believe that this omission is deliberate to distort the judgment of the trial Court. I wonder what the appellant hoped to achieve by this as Learned Counsel for the appellant ought to know that this Court would certainly read the record of appeal including the whole judgment of the trial Court.

The complete version of that portion of the judgment that decided that the two names refer to the same market stall in dispute reads thus- “even

though the defendant tried to show that the full stall No. MH/ACB/100 she occupies at the Bridge Head Market, Onitsha is different from the one claimed by the plaintiff, it is obvious from the totality of evidence before the Court that both parties dispute over the same stall. The expressions “Double Stall” and “full Stall” used to describe the stalls claimed by the plaintiff and defendant respectively have not created any difference or confusion because the expression “Full Stall” was also used to describe the stall for which the plaintiff paid stallage and other fees in 2004 and 2005 (see Exhibits C2 and C3). Similarly, Stall No. OSLG/MH/100 and Stall No. MH/ACB/100 also used to describe the stalls claimed by the plaintiff and defendant respectively have also not created any difference or confusion because the expression “MH/100″ was also used to describe the stall for which the defendant paid stallage fees in 2006 and 2007 (see Exhibits J and K). The submissions of learned counsel for both sides which tended to show that the stalls claimed by both parties are different from each other is not borne out by the evidence before this Court. As stated earlier,

both parties dispute over the same market stall which was called different names by both parties in their pleadings. The stall in question is well known by both parties and it appear that both the police and the Market authority tried to resolve the dispute but were unsuccessful.”

The reasons the trial Court gave for its decision that OSLG/MH/100 and MH/ACB/100 refer to the same stall are clear. The first was that the words “full stall” used to describe stall No. MH/ACB/100 in exhibit E was also used to describe stall No. OSLG/MH/IO0 in exhibits C2 and C3, the documentary acknowledgment of receipt of stallage fees paid by the respondent. Another reason it gave was that MH/100 used to describe the stall allocated to the respondent in exhibit B was also used to describe the stall for which the appellant paid 2006 and 2007 stallage fees in exhibits J and K. The third reason the trial Court gave was that the stall in dispute is well known by both parties and that both the police and the market authority had tried unsuccessfully to resolve the dispute in respect of that stall.

?It is noteworthy that exhibits A, B, E, C2, C3, J and K were all issued

by Onitsha South Local Government Council, the original owner of the stall in dispute.

As is obvious from the above reproduced portion of the judgment of the trial Court, it made certain specific finding of facts which it relied on as the reasons for its decision that OSLG/MH/100 and MH/ACB/100 refer to the same market stall in dispute. There is no ground of this appeal complaining against the finding of fact that the words “Full Stall was also used to describe the stall for which the plaintiff paid stallage and other fees in 2004 and 2005 (see exhibit C2 and C’.)” There is also no ground of this appeal that complained against the finding of fact that “MH/100” was also used to describe the stall for which the defendant paid stallage fees in 2006 and 2007 (see exhibits J and K). There is no ground of this appeal complaining against the finding of fact that “the stall in question is well known by both parties.” By not appealing against these findings of fact, the appellant accepted them as correct, valid and binding on her. Such finding remain binding and conclusive. See Okotie-Eboh v. Manager (2004) 11-12SC 174, Biariko & Ors v. Edeh-Ogwuile &

Ors (2001) 4 SC (Pt. 11) 96, Adejobi & Anor v. The State (2011) LPELR-97 (SC), Adedayo v. Babalola & Ors (1995) LPELR-85 (SC) and Iyoho v. Effiong (2007) 4 SC (Pt. 111) 90. In the face of these unchallenged findings of facts the argument of Learned Counsel for the appellant that the stall claimed by the respondent is different from that occupied by the appellant because exhibit A that approved the allocation of a stall to the respondent described the stall as “Double stall No. OSLG/MH/100 1st floor,” while exhibit E that approved the allocation of stall to the appellant described the stall as Full Stall No. MH/ACB/100 is incompetent and invalid. The trial Court by its above findings has determined the implication of the said different descriptions of the stall allocated to each party herein.

The appellant cannot competently argue that the different descriptions show that the stall claimed by respondent is different from that occupied by appellant without appealing against the above findings of facts. For it is trite law that a party in an appeal cannot argue contrary to a finding, holding or decision he has not appealed against. See Awote &

Ors v. Owodunni & Anor (1987) 5 SC 1 and Sparkling Breweries Ltd & Ors v. UBN Ltd (2001) 7 SC (Pt. 11) 146.

In the light of the foregoing, issue 2 is resolved in favour of the respondent.
Let me now consider issue 3.

The portion of the judgment complained against under this issue reads thusly- “I had earlier stated the cases put forward by both parties. I have put those cases on the imaginary scale in line with the decision of the Supreme Court in Mogaji v. Odofin (1978) 4 SC 91 at 94 to 98. The person from whom the plaintiff derived his claim to the stall in dispute (i.e. Coast Link Nig. Ltd.) obtained its allocation paper in respect of the stall on 17th May, 2002: see Exhibit A. On the other hand, the person from whom the defendant derived her claim to the stall in dispute (i.e. Mr. Uchechi Akachi) obtained his own allocation paper in respect of the stall in dispute on 25th October, 2002: see Exhibit E. It is obvious that the allocation paper (Exhibit A) which formed the basis of the plaintiff’s claim came first in time before the allocation paper (Exhibit E) which formed the basis of the defendant’s claim. Similarly, the

Onitsha South Local Government’s approval for change of ownership of the stall from Coast Link Nig. Ltd. to the plaintiff dated 23-5-2002 (Exhibit B) relied upon by the plaintiff came first in time before the local government’s approval for change of ownership of the stall from Mr. Uchechi Akachito the defendant dated 7-2-2003 (Exhibit F) relied upon by the defendant. Assuming that Mr. Uchechi Akachi lawfully obtained the allocation paper over the stall in dispute as the original allottee or holder, in law, Mr. Uchechi Akachi must take his holding to the existing rights and interests of Coast Link Nig. Ltd. which came first in time as shown above. In property law and Law of Equity there is a fundamental rule that competing interests will generally rank according to the order of their creation. The same rule of priority in law can also be extended to the approvals for change of ownership (Exhibits B and F) relied upon by the plaintiff and defendant respectively because they are based on the allocation papers (Exhibits A & E) aforementioned. As far as the law is concerned the finding I have just made that the allocation paper (Exhibit A) relied upon by the

plaintiff came first in time before the allocation paper (Exhibit E) relied upon by the defendant is enough to dispose of this case in favour of the plaintiff; the law being that he who is earlier in time is stronger in law: see Kachalla v. Banki (2006) 2 SCNJ 305. The unassailable position of the plaintiff is brought out more clearly by the fact that Exhibit B dated 23-5-2002 (i.e. the approval for change of ownership from the original allottee to the plaintiff) came also first in time before Mr. Uchechi Akachi’s allocation paper dated 25-10-2002 (Exhibit E) on which the defendant built her case.”

?Learned counsel for the appellant has argued that the issue of priority of interest propagated by the trial Court in its judgment would only arise if the rival claimants derived their title from the same predecessor-in-title and the property claimed by them is the same and that priority of interest does not arise in the circumstance because the parties herein derived their respective title from different predecessors in title and the market stall claimed by each of them is different from the one claimed by the other.

Learned counsel for the

respondent has argued in reply that the trial Court was right in holding that exhibit A, the respondent’s root of title to the stall in dispute was in existence before exhibit E, appellant’s root of title to the stall in dispute, that both parties agree that the disputed stall belonged to Onitsha South Local Government Council and that exhibit A and E were in respect of the same stall which is the one in dispute.

Let me consider the merit of the above arguments.
I agree with the submission of Learned Counsel for the appellant that the principle of competing interest and priority of interest in land applies only where the rival or competing claims are for the same property and the root of title of the competing or rival claimants are the same.

The question of whether the rival claims were in respect of the same market stall was raised as issue No. 2 in the appellant’s brief. I have just determined that the appellant’s arguments under issue No. 2 have not shown that the decision of the trial Court that both sides claim for the same market stall is wrong. So my decision in respect of issue No. 2 of the appellants’ brief, clearly upheld the

said decision of the trial Court. So it is therefore settled that the competing or rival claims were in respect of the same market stall, which is the one in dispute. What is left to be determined is whether the roots of title of the rival claimants are different.

Both sides agree that Onitsha South Local Government is the owner of the market stall in dispute. The respondent claimed that he purchased the right to occupy the market stall in dispute from Coast Link Nigeria Limited who had acquired the same right from Onitsha South Local Government Council as shown by exhibit A dated 17th May, 2002. The appellant claimed that her husband (DW1) purchased for her the right to occupy the market stall in dispute from one Mr. Uchechi Akachi who had acquired the same right from Onitsha South Local Government Council as shown by exhibit E dated 25th October 2002.

Onitsha South Local Government Council wrote exhibit B approving change of ownership of the market stall from Coast Link Nigeria Limited to the respondent. It is dated 23rd May 2002. The same Onitsha South Local Government Council wrote exhibit F approving change ownership of the market stall

from Mr. Uchechi Akachi to the appellant. It is dated 7th February 2003.

It is clear from the foregoing that both claimants have a common root of title, even though different previous holders of the right to occupy the stall sold the right to them. It is clear from their pleading and evidence that while the stall can be occupied by successive tenants who can sell the residue of their right of occupancy, allodial title to the stall remained permanently fixed in Onitsha South Local Government Council. So each of their different predecessors in title derived their title from Onitsha Local Government Council. The trial Court correctly applied the rule of competing rights or priority of interests to the competing or rival rights of Coast Link Nigeria Limited and that of Mr. Uchechi Akachi in exhibits A and E respectively and the competing or rival rights of the respondent and appellant in exhibits B and F respectively. The right of Coast Link Nigeria Limited in the disputed stall was created on 17/5/2002 prior to the creation of the right of to Mr. Uchechi Akachi in the disputed stall on 25/10/2002. The right of the respondent was created on 23-5-2002 prior

in time to the creation of the right of the appellant in the disputed stall on 7/2/2003. As held by the Supreme Court in Kachalla v. Banki (2006) LPELR-1640 (SC) “the fundamental rule is that competing interest will generally rank according to the order of their creation.”
In the light of the foregoing, I resolve issue 3 in favour of the respondent.

Let me now determine issue No 4.
Learned counsel for the appellant argued that the trial Court was not fair to the appellant because the trial Court described exhibit E and F as “nuducm pactum” and “worthless” papers and to arrive at this perverse finding, descended into the arena of conflict and embarked on the unsolicited amendment of the respondent’s pleadings to ensure that judgment was given against the appellant.

Learned Counsel for the appellant also argued that the trial Court by its own exercise, ingenuity and contrary to his functions, supplied the evidence that it was the same stall allocated to Coast Link Nigeria Limited that was renamed and reallocated to Mr. Uchechi Akachi, which evidence was not tested under cross-examination.

Another argument of Learned Counsel

for the appellant is that exhibit L which provided enough basis to dismiss the respondent’s claim was held by the trial Court to be a spurious and worthless document, that the trial Court so held because of its favorable disposition to the respondent’s case, that exhibit L was admitted in evidence after the objection to its admissibility was overruled, that exhibit L was as held in the ruling of the trial Court admitting it in evidence, a certified true copy of a public document, that it was addressed to the Police Area Commander who certified it, that it was written on the letter headed paper of Onitsha South Local Government, that it was never contended that the document was forged or that the signature on it is not that of the Chairman of the said Local Government Council, that the trial Court on its own found fault with the position of the signature of the Chairman on the document and the fact that Onitsha South Local Government Area was written on it instead of Onitsha South Local Government council, that the trial Court ought to take judicial notice of the fact that ‘Area’ and ‘Council’ are used interchangeably in referring to a Local

Government.

Learned Counsel also argued that the trial Court’s further attack of exhibit L on the ground that DW1 could not answer questions on it is unwarranted as the trial Court could not point to any question that Dw1 failed to answer, that DW1 answered questions put to him, that the trial Court merely fished for reasons to discredit exhibit L because it knew that the exhibit established the appellant’s entitlement to the stall in dispute, that apart from slamming exhibits E, F and L as worthless documents, the trial Court also treated all other exhibits tendered by the appellant as worthless, that the trial Court’s attack of the credibility of DW1, describing him with all manner of derogatory words is unwarranted and expose its bias against the appellant, that the action is a documentary matter and as such the credibility of witnesses ought not to play a role in resolving the dispute between the parties, that the faults the trial Court found in the appellant’s case influenced its conclusion.

Learned Counsel for the respondent argued in reply that the trial Court was right in holding that exhibits E and F were worthless, that exhibits A and

B were not revoked by Onitsha South Local Government council before exhibits E and F were issued by the same council in respect of the same market stall which had earlier been allocated to coast Link Nigeria Limited, that exhibit L was a spurious document because it purported to be signed by an unnamed chairman, who signed on top of the word “thank” instead of signing on the word “chairman”, and DW1 who heavily relied on it could not answer any question on it.

Learned Counsel for the respondent further submitted that the appellant ought to have called Onitsha South Local Government Council to prove the authenticity of exhibit L, that the appellant did not tender in evidence the letter from the police that prompted the reply by exhibit L, that the police officer who allegedly investigated the matter was not called as a witness by the appellant, the trial Court rightly held that exhibit L was spurious and that the trial Court having held that exhibit E, F and L were worthless, the same fate was bound to befall the other exhibits obtained after the commencement of the suit on 29-3-2004.

?Let me now consider the merit of the above

arguments.
Learned Counsel for the appellant failed to justify his submission that the trial Court embarked upon the unsolicited amendment of the pleadings of the plaintiff/Respondent in order to ensure that judgment was given against the defendant/appellant. He did not refer to or point out any unsolicited amendment of the respondent’s pleadings that was carried out by the trial Court.

The argument of learned counsel for the appellant that the trial Court resorted to finding faults in exhibits E and F tendered by the appellant and held that they were “nudum pactum” or “worthless paper” is not valid. The trial Court by holding that exhibits E and F were worthless was not engaged in finding faults in them so as to strike them down. If the portion of the judgment of the trial Court dealing with the priority of the competing claims of the parties herein for the disputed stall is calmly read as a whole, it would be seen that the trial Court was merely stating the consequence of the application of the legal principle of competing interests and priority of interests on the validity and effectiveness of exhibits E and F in vesting the right to occupy

the disputed stall on Mr. Uchechi Akachi and later on the appellant. Since competiting rights in the same property rank in priority according to the date of their creation, the right of Coast Link Nigeria Limited in the stall being prior to that of Mr. Uchechi Akachi, overrides and nugates the later right of Mr. Uchechi Akachi. The right of occupancy of the stall having been allocated to Coast Link Nigeria Limited by Onitsha South Local Government Council on t7-5-2002, the same right could not validly be allocated by the same council to Mr. Uchechi Akachi subsequently on 25/10/2002 by exhibit E. The allocation by exhibit E was void. The trial Court rightly held that when Mr. Uchechi Akachi obtained his allocation paper (exhibit E), he obtained nothing because the stall in dispute was no longer available for allocation as of 25th October 2002 when it was purportedly allocated to him by the Local Government. The stall was already allocated to Coast Link Nigeria Ltd as far back as 17th May 2002 by virtue of the allocation paper (exhibit A). The trial Court held that “The stall in dispute having been lawfully allocated to the plaintiff’s predecessor mentioned by

the Local Government as from 17th May 2002, it could not thereafter be lawfully or validly allocated a second time by the same Local Government to the defendant’s predecessor (Mr. Uchechi Akachi) under the colour of a different name during the subsistence of the first allocation as the stall in question would then not be free for another allocation. See Kyari v. Alkali (2001) 5 SCNJ 421 at 452, per Iguh JSC. This analysis has shown that Exhibit E and F are not worth the papers on which they were made and so they weighed nothing on the defendant’s side of the imaginary scale.”

The argument of Learned Counsel for the appellant that the trial Court supplied evidence that it was the same stall allocated to the respondent’s predecessor in title that was renamed and re-allocated to the appellant’s predecessor in title is not correct. The trial Court had made certain specific findings of facts on the basis of the evidence before it that the words “full stall” in exhibit E and F was also used in exhibit C2 and C3 to describe the stall the respondent paid 2004 and 2005 stallage fees, that the expression “MH/100” in exhibit B to describe the stall allocated to

the respondent therein is also used in exhibits J and K to describe the stall for which the appellant paid the 2006 and 2007 stallage fees and that both know the particular stall in dispute. On the basis of these findings, the trial Court concluded that in spite of the different description of the stall allocated in exhibits A, B, E and F the stall claimed by the respondent and the one occupied by the appellant are the same and it is the stall in dispute. As I had held herein, the appellant cannot argue contrary to those findings because there is no ground of this appeal against any of the said specific findings of facts. The complain in ground 3 of this appeal that the trial Court was wrong to have held that both sides claim the same stall is not arguable without an appeal against the said specific findings of fact that formed the basis of the holding of the trial Court that both claim for the same stall.

Learned Counsel for the appellant has argued at length that the trial Court was wrong to hold that exhibit L is spurious and worthless. Exhibit L cannot override exhibit A and B which vest rights in the market stall that are prior to the one referred

to in exhibit L. The trial Court was right to have held that the same fate that exhibits E and F suffered, befell all other exhibits tendered in evidence by the appellant. Exhibits E and F are the primary documents of appellant’s title to the stall. Other exhibits including exhibit L merely serve to confirm the contents of exhibits E and F. So if exhibits E and F conveyed nothing to Mr. Uchechi Akachi and the appellant, then the documents including exhibit L that confirm the title they were meant to convey’ become worthless. Exhibits A, B, E and F were issued by Onitsha south Local Government Council, the owner of the disputed stall. Exhibit L is said to have been issued also by the same council. Onitsha South Local Government Council having earlier allocated the right of occupancy of the stall to Coast Link Nigeria Limited could not validly allocate on a later date the same right to occupy the same stall to Mr. Uchechi Akachi. Since the title exhibit L seeks to support did not exist, it serves no useful purpose. So that even if the trial Court had not described it as spurious it would still be of no value to the appellant’s case. In the light of the

foregoing, I do not agree with the submission of Learned Counsel for the appellant that because “Having seen that the document, if allowed to take its proper place would swing the pendulum in favour of the defendant/appellant, the trial judge unleashed all sorts of attacks on the document to pave way for judgment in favour of the plaintiff/respondent.”

Learned Counsel for the appellant also alleged that “in the further bid to find for plaintiff/respondent, the trial judge resorted to unleashing attacks on the credibility of the defendant/appellant’s sole witness, DW1 and described him with all manner of derogatory words which run through pages 116-120 of the record. The unwarranted comments of the trial Judge against DW1 did not only expose his frame of mind against the defendant/appellant but also plunged him into the arena of conflict wherein he took side with the plaintiff/respondent.” Learned counsel did not point out the words he considered derogatory of DW1 and failed to show that the comments by the trial Court on the credibility of DW1 were not warranted.

The portion of the judgment that determined the credibility of DW1 states thusly –

“the defendant’s sole witness (i.e. DW1) did not score very highly at the credibility stakes, having watched his demeanor and bearing in the witness box. DW1 was a sorry sight when he was cross-examined on Exhibit L (a purported letter from an unnamed Chairman of Onitsha South Local Government Area confirming the defendant’s ownership of the stall in dispute to the police). The DW1 was hesitant, edgy, fidgety and uncomfortable in the witness box before reaching to the plaintiff’s counsel’s questions under cross- examination.”

The trial Court observed the demeanor of DW1 when he was testifying in open Court, observed that he was a sorry sight when he was cross examined on exhibit L and that he was hesitant, edgy, fidgety and uncomfortable.

It is settled by a long line of decisions that a trial Court has the exclusive power to judge the demeanor and credibility of a witness who it observed testify before it and to ascribe probative value to the oral evidence of such witness. See Ibuluya & Ors v. Dikibo & Ors (2010) LPELR – 1414 (SC). Unless it can be shown that the trial Court made improper use of the opportunity of observing the witness

and listening to him in his testimony, this Court cannot interfere with the trial Court’s decision on the demeanor and credibility of such witness and any findings of facts based thereon. See Ibuluya & Ors v. Dibibo & Ors (supra).

The appellant has not shown that the trial Court made improper use of the opportunity of observing DW1 testify and has not shown that the decision of the trial Court on the demeanor and credibility of DW1 is unwarranted. The appellant has failed to show that the procedure and decisions of the trial Court were not fair to her.
For the above reasons I resolve issue 4 in favour of the respondent.

On the whole this appeal fails as it lacks merit. It is hereby dismissed. The judgment of the High Court of Anambra State in suit No. 0/62/2004 delivered on 14-7-2010 per D. O. C Amaechina J is hereby affirmed and upheld. The appellant shall pay costs of N100,000.00 to the respondent.

HELEN MORENKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother EMMANUEL AKOMAYE AGIM, JCA. I completely agree with my learned brother’s lucid and brilliant consideration and

determination with regard to the contentious issues in controversy. I have nothing useful to add. I too dismiss the appeal as lacking in merit and abide by the order as to costs.

TOM SHAIBU YAKUBU, J.C.A.: I have perused the draft of the judgment rendered by my learned brother, EMMANUEL AKOMAYE AGIM, JCA. I am in agreement with the erudite reasoning contained therein which culminated in the dismissal of the appeal.

Let me chip in a word in support of the same, with respect to the competing rights of the parties herein to the market stall in dispute. The respondent’s claim to the market stall in question, is that he purchased the right to occupy it from Coast Link Nigeria Limited which the latter had acquired from Onitsha South Local Government Council on 17th May, 2002, as evidenced by Exhibit A. on the other hand, it is the appellant’s claim that her husband who testified as DW1, had purchased the right to occupy the same market stall from Mr. Uchechi Akachi, who had acquired the right to the market stall from the same Onitsha South Local Government Council vide Exhibit E, dated 25th October , 2002.

?Furthermore, the Onitsha South

Local Government Council vide Exhibit B had approved the change of ownership of the market stall in question from Coast Link Nigeria Limited to the respondent, on 23rd May, 2002, And for the appellant, the change of ownership from Mr. Uchechi Akachi to her, effected by the Onitsha South Local Government Council, was through Exhibit F, dated 7th February, 2003. Undoubtedly, the Onitsha South Local Government Council is the common grantor of the right to occupy the market stall in question. It is glaring to me, that whereas the right of Coast Link Nigeria Limited, the predecessor-in-title, to the respondent, was created on 17th May, 2002; the right of Mr. Uchechi Akachi, the predecessor-in-title, to the appellant, to the same market stall, was created on 25th October, 2002. So also, the right of the respondent to the market stall was created when the change of ownership between him and Coastal Link Nigeria Limited was approved by the Onitsha South Local Government Council on 23rd May, 2002 which was prior to the creation of the appellant’s right on 7th February, 2003 through the approval of the change of ownership between Mr. Uchechi Akachi and the appellant, by

the same Onitsha South Local Government Council.

In the light of the foregoing, I am unable to comprehend and appreciate the submission of appellant’s learned counsel to the effect that the learned trial judge was in error when he applied the doctrine of priority of estates vis-?-vis their creation. His Lordship was clearly right in his decision on the point whilst the learned counsel for the appellant was patently wrong in his submission on the same point. The law has remained well settled to the effect that where there are competing interests or claims by two or more persons to the same piece of land or the right to occupy the market stall, as it is in the instant case, which right is traceable to a common grantor, the position both in law and at equity, is that such competing rights will prima facie rank in order of their creation based on the maxim-qui prior est tempore potior est jure, meaning that he who is earlier in time is stronger in law. That is, where the equities are equal, the first in time of its creation has priority over the later. Ayanwale v. Odusanmi (2011) 12 SCNJ 362; Okelola v. Adeleke (2004) 7 SCNJ 103 at 111; Michael

Romaine v. Christopher Romaine (1992) 2 SCNJ 25; Ugbo v. Aburime (1994) 8 NWLR (Pt. 360) 1 (SC).

It follows therefore, that the right of the respondent to the occupation of the market stall in question, takes priority over the right of the appellant to the occupation of the same market stall, which was created later in time, after that of the respondent.

It is for these few words and the more elaborate and lucid reasons contained in the lead judgment, that I too, dismiss the appeal, for being devoid of merits.

?The judgment of D. O. C. Amaechina, J, in re Suit No. O/62/2004 delivered on 14th July, 2010 at the Anambra State High Court of Justice, Onitsha, is hereby affirmed.
I subscribe to the award of costs of N100,000.00 to the respondent against the appellant.

Appearances

B. U. Okafor, Esq. with him, S. O. Nworie, Esq. for Arthur Obi Okafor, SANFor Appellant

AND

Okey Anwadike, Esq. with him, J. I. Anwadike (Miss)For Respondent