UZOIGWE & ORS v. F.A.A.N
(2020)LCN/15780(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, May 15, 2020
CA/A/47/2019
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Peter Olabisi Ige Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
CHIEF BEN UZOIGWE & 275 ORS APPELANT(S)
And
FEDERAL AIRPORTS AUTHORITY OF NIGERIA RESPONDENT(S)
RATIO:
THE RELEVANCY OF DOCUMENTARY EVIDENCE
This Court has reiterated in the case of ALHAJI MUKAILA KOTUN & ORS VS. MRS ADEOLA OLASEWERE & ORS (2010) 1 NWLR (PT. 1175) 411, 437 and stated that:
“The position of the law is that documentary evidence always serves as a hanger from which to access oral testimony, consequently when documentary evidence supports oral testimony as in this case, oral testimony becomes more credible.”
Also in FIRST AFRICAN TRUST BANK LTD VS. PARTNERSHIP INV. CO. LTD (2003) 18 NWLR (PT. 851) 35, 74,the Supreme Court held that:
“Documentary evidence, where this is relevant, ought to be produced and tendered as they speak for themselves as against the ipse dixit of a witness in respect of such transactions which may not be readily accepted by the Court.” MOHAMMED BABA IDRIS, J.C.A.
ADMISSION IS CONCLUSIVE PROOF OF A MATTER IN LITIGATION
See the case of KAMALU & ORS VS. UMUNNA & ORS (1997) LPELR – 1657(SC) AT P.27, PARAS.D – F wherein the Supreme Court per Belgore, JSC reiterated thus:
“Admission per se is conclusive proof of the entire matter in litigation, but it stands firmly on the subject of the admission against the person making it. Also it must be viewed in relation to the entire evidence before the Court to know the weight to attach to it”. (Emphasis mine).
This Court cannot just rely on the argument of the Appellants’ counsel that the Respondent admitted that it allocated shops to the Appellants which he later took over same. This without more cannot amount to an admission. The claim of the Appellants to me is the alleged destruction of the Appellants’ shops without giving them an opportunity to be heard. The so called admission in my view is a statement of fact. The Appellants’ counsel in his argument should have stated further if there was any evidence on record to show that the Respondent did not give the Appellants fair hearing before they went ahead to demolish the Appellants’ shops. MOHAMMED BABA IDRIS, J.C.A.
THE DEFINITION AND EFFECT OF TRIAL DE NOVO
This Court went further to reproduce the holding of the apex Court in that case inter alia:
“… that a trial de novo could mean nothing more than a new trial. This further means, that the Plaintiff is given another chance to relitigate the same matter or rather, in a more general sense, the parties are at liberty once more to reframe their case and restructure it as each may deem it appropriate.”
Also, the Court cited the case of OMISORE VS. STATE (2005) 12 NWLR (PT. 940) 591 @ 606, where the Court held inter alia that:-
“The effect of starting a case de novo before another judge is to render null all pending proceedings including orders made.”
The Court also referred to the cases of ODI VS. OSAFILE (1987) 2 NWLR (2005) 1510 @ 512; BAMAIYI VS.STATE (2006) 12 NWLR (PT. 994) 221 @ 240; FRN VS. BULAMA (2005) 16 NWLR (PT. 951). MOHAMMED BABA IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a complaint dated and filed 26th September, 2014, the Appellants as Plaintiffs first commenced the suit at the National Industrial Court. However, by a ruling delivered by Honourable Justice P.O. Lifu on the 22nd April, 2016, the suit was transferred to the Federal High Court on the ground that the National Industrial Court has no jurisdiction to entertain same.
At the Federal High Court, the Appellants as Plaintiffs by a writ of summons dated 19th June, 2017 and filed on the 29th June, 2017 which was further amended and filed on the 17th November, 2017 sought for the following reliefs against the Respondent as follows:
1) A Declaration that the Defendant has no right to demolish the Plaintiffs’ shops situate and lying at the Nnamdi Azikiwe International airport mammy market, Abuja, when the Plaintiffs’ suit to wit SUIT NO FHC/ABJ/648/13 between Titus Anyile, Chioma Onugbe suing for themselves and as representing all the owners of shops situate and lying at the mammy market Nnamdi Azikiwe International Airport V Mrs. Stella Oduah-Ogiemwonyi, Federal Airports Authority of Nigeria and Ors was pending with a motion on notice seeking for injunctive order to restrain the Defendant from demolishing the very shops of the Plaintiffs that the Defendant demolished at the Nnamdi Azikiwe international Airport Mammy Market, Abuja.
2) A Declaration that the destruction and demolition of the shops of the Plaintiffs at the Nnamdi Azikiwe International Airport Mammy market, Abuja by the Defendant on the 30th September, 2013 which was done and carried out, when the Plaintiffs’ suit to wit, SUIT NO FHC/ABJ/648/13 Between Titus Anyile, Chioma Onugbe suing for themselves and as representing all the owners of the shops situate and lying at the Mammy Market Nnamdi Azikiwe International Airport, Abuja V Mrs Stella Oduah Ogiemwonyi, Federal Airports Authority of Nigeria and Ors. was pending to the notice of the Defendant also without the said Defendant giving the Plaintiffs the opportunity to be heard as to why their (Plaintiffs) shops should not be demolished and destroyed and further also without any order of a court of competent jurisdiction permitting the Defendant to demolish and again without the Defendant having the consent of the Plaintiffs, was unconstitutional, arbitrary, cruel, high handed and illegal.
3) An order that the Defendant pay each of the Plaintiffs the sum of One Hundred Million Naira (100,000,000.00) per person as exemplary damages suffered by each of the Plaintiffs as a result of the unconstitutional, arbitrary, cruel, high handed and illegal act of the Defendant in demolishing and destroying the shops of each of the Plaintiffs at the Nnamdi Azikiwe International Airport Mammy Airport Mammy Market, Abuja whereof, the Defendants shall pay to all the plaintiffs the total sum of Twenty Seven Million Naira (27,600,000,000.00) only i.e N100,000,000 *276 persons.
4) An order of the Court compelling the Defendants to pay post judgment interest at the rate of Twenty per cent (20%) per annum on the judgment sum till when the judgment sum is finally liquidated.
On the other hand, the Respondent filed its statement of defence on the 5th of August, 2017 and further filed an amended statement of defence on 30th April, 2018.
Before I delve into the appeal, below are the facts involved in this appeal.
It is the claim of the Appellants that sometime in 2002,the Respondent as Defendant permitted the Appellants to develop a vacant parcel of land for market purposes (mammy market) within the Nnamdi Azikwe International Airport where the Appellants built shops individually. The Appellants claim that the said structure for each shops were built according to a prototype and each shops were of the same sizes.
It is also the claim of the Appellants that they earn their living from the work they do in their shops at the said Nnamdi Azikiwe International Airport Mammy Market to the knowledge of the Respondent and have never carried out any unlawful trade or business in their said shops.
The Appellants also claim that before the 20th September, 2013 they had carried out their various business without hindrance from anybody including the Respondent.
The Appellants further claim that on the 20th September, 2013, the Respondent through some of their servants came to the said Nnamdi Azikiwe International Airport Mammy Market Abuja and started circulating photocopies of a document titled “RE: NOTICE OF VACATION FROM MAMMY MARKET” and dated 20th day of September, 2013 signed by one B.S. Haruna instructing the Appellants who are the owners of the said shops to vacate them on or before 30th September, 2013.
The Appellants claim that upon the happening of the aforementioned, the Appellants filed a suit in a representative Capacity: SUIT NO: FHC/ABJ/648/13 BETWEEN TITUS ANYILE, CHIOMA ONUGBE SUING FOR THEMSELVES AND AS REPRESENTING ALL THE OWNERS OF SHOPS SITUATE AND LYING AT THE MAMMY MARKET NNAMDI AZIKIWE INTERNATIONAL AIRPORT, ABUJA VS. MRS STELLA ODUAH-OGIEMWONYI, FEDERAL AIRPORTS AUTHORITY OF NIGERIA AND ORS against the Respondent in order to restrain the Respondent from carrying out its threat of demolishing their shops.
The Appellants also claim that the Respondent was served the originating process in the said suit but notwithstanding the knowledge of the suit, the Respondent on the 30th September, 2013 went ahead to demolish all the shops of the Appellants at the said Nnamdi Azikiwe international airport mammy market at night and equally used paid loaders, trucks and other vehicles to carry the debris from the demolished shops to unknown places without any order of court empowering the Respondent to demolish the said shops. The Appellants claim that while carrying out the demolition, the Respondent demolished their valuable properties and documents including their various allocation papers.
The Appellants also claim that since the demolition, the Respondent has not allowed the Appellants into the said Nnamdi Azikiwe Airport Mammy Market and that the Respondent has commenced the building of structures on the said land.
The Appellants further claim that the prevailing market price of each shops is at least N6,000,000(Six Million Naira) and because of the strategic location of the market, the prices of such shops would have been on the increase if not for the demolition by the Respondent and the current price will not be anything less than N10,000,000(Ten Million Naira) per shop.
The Appellants further claim that the cost of the Appellants’ shops destroyed by the Respondent going by the prevailing price of N6,000,000(Six Million Naira) multiplied by 276 shops will amount to N1,656,000,000.00 (One Billion, six Hundred and Fifty-Six Million Naira) only.
The Appellants opened their case on the 14th May, 2018 calling two witnesses who testified on behalf of the Plaintiffs as PW1 and PW2 respectively. The witnesses testified and tendered five (5) documents marked as Exhibits A – E and the Appellants closed their case on the same 15th May, 2018.
The Respondent opened its case on the 15th May, 2018 calling one witness who testified on behalf of the Respondent as DW1 and tendered six (6) documents marked as Exhibits F, G1 – G3, H1 – H2. The Respondent closed its case on the 15th May, 2018 and the matter was adjourned to 11th June, 2018 for adoption of final written addresses. Parties then filed and adopted their respective addresses on the 25th September, 2018.
After considering the evidence led by parties, the Learned Trial Judge, Honourable Justice Ijeoma L. Ojukwu delivered judgment in the suit on the 7th November, 2018 wherein she granted judgment in favour of the Respondent.
Dissatisfied with the judgment of the trial Court, the Appellants filed a Notice of Appeal on the 16th November, 2018 comprising of thirteen grounds of appeal. The Appellants filed yet another Notice of Appeal dated 7th January, 2019 consisting of thirteen (13) grounds of appeal and sought to rely on the Notice of Appeal dated 7th January, 2019.
It is also pertinent to note that at the Federal High Court, the matter was before Honourable Justice Ademola but started de novo before Honourable Justice Ijeoma L. Ojukwu who delivered the judgment, subject matter of this appeal.
The Appellants and the Respondent as parties in the appeal before this Court filed and exchanged their respective Brief of Argument and Reply Brief of Argument respectively.
In the Appellants’ brief of argument as settled by his counsel Sepiribo Cromwel Peters, Esq. and dated 23rd January, 2019 and filed 24th January, 2019, the following issues for determination were distilled from the grounds of appeal as follows:
1) Whether the learned trial Judge from the evidence before his Lordship in this case was correct in law to have ignored and failed to determine the applicability of the principle of law in Gov. Lagos State V Ojukwu (1986) 1 NWLR (PT.18) 621 which the Appellants in the circumstances of their case before the trial court, relied upon for the determination of their case? (Ground1)
2) Whether the learned trial Judge was correct to have dismissed the claims of the Appellants in the Court below in view of the totality of the evidence adduced by the parties at the trial Court and relevant applicable laws? (Grounds 2, 3, 4, 5, 6, 7, 8, 9, 11, 12 and 13).
3) Whether in the circumstances of the Appellants’ evidence before the learned trial judge, his lordship, the learned trial judge was correct to have held that the concession given to the Appellants (Plaintiffs) was temporal in nature and the structures were not meant to be permanent fixtures? (Ground 10).
On issue one, the learned Counsel for the Appellants argued that a Court is circumscribed within the bounds of the case an aggrieved party brings before it. Counsel argued that the Court is also obliged to consider and impartially determine the principle of law relied upon by that party in proof of his case before the Court.
Counsel further submitted that the learned trial judge breached his constitutional duty to give fair hearing to the Appellants when she ignored the principle in MILITARY GOVERNOR OF LAGOS STATE VS. CHIEF EMEKA ODUMEGWU OJUKWU (1986) 3NWLR (PT.18) 621 that was relied upon by the Appellants to show that the Respondent who demolished the Appellant’s shops during the pendency of Exhibits A and C acted beyond the limits of law and thus their action was unconstitutional and unlawful.
The Appellants’ Counsel also argued that instead of the trial Court to examine the principle in the said authority, it ignored same and relied on the doctrine of lispendis as was held in the case of ENEKWE VS. I.M.B. (2006) 19 NWLR (PT.1013). This clearly makes the decision of the trial Court hypothetical and academic.
The Appellants’ Counsel further argued that there are also strong pieces of evidence in Exhibits E and J tendered before the learned trial Court which it also ignored. The Appellants’ counsel then submitted that it cannot be reasonably argued otherwise that the failure of the learned trial judge to consider and decide on the applicability of the principle in Ojukwu’s Case to the facts of the Appellants’ case is a violation of the Appellants’ right to fair hearing in the determination of the Appellants’ case and the result of same is a miscarriage of justice against the Appellants. On this point Counsel to the Appellants cited the case of EGHAREVBA VS. OSAGIE (2009) 18 NWLR (PT.1173) 299, 310 – 311 AT PARAS H – A.
On issue two, the Appellants’ counsel argued that the Constitution by imposing a duty on the Courts to give fair hearing to parties, imposes an attendant duty on it to consider the totality of the evidence adduced by the parties and apply the applicable laws which the Court must take judicial notice of before a valid judicial decision can be reached. On this point, counsel cited the case of BASSIL VS. FAJEBE (2001) 11 NWLR (PT.725) 592 AT PAGES 608 – 609.
The Appellants’ counsel also argued that the reliefs and the evidence before the Court never stated or suggested that only shops were destroyed. That the trial judge therefore has no lawful powers to decide without evidence that the Appellants removed their wares from the shop upon being served with the demolition notice or that only shops were demolished and not the Appellants’ properties.
The Appellants’ counsel also argued that the learned trial judge while still insisting that the proof of the Appellants’ claim rested on the production of the originals or photocopies of the destroyed allocation papers, went further to dismiss the Appellants’ claim for purported want of evidence.
The Appellants’ counsel further argued that there cannot be paucity of evidence merely because the Appellants were rendered incapable by the Respondent’s contemptuous and unconscionable conduct.
The Appellants’ counsel also called the attention of this Court to paragraphs 4 – 15 of Exhibit E found at pages 892 – 894 of the Record of Appeal and pages 625 – 626, and argued that the failure of the Respondent to deny the contents of Exhibit D which evidence of admission the trial Court failed to give effect to. On this point, the Appellants’ counsel cited Section 169 of the Evidence Act 2011.
The Appellants’ counsel submitted further that from the totality of evidence before the learned trial Court, it is difficult to legitimately accept that the Respondent made out any prima facie defence against the case of the Appellants simply because the Respondent tendered Exhibits F, G1, G2, G3 and H1, H2 and H3 as held by the learned trial judge in pages 661 – 662 of the Record of Appeal.
The Appellants’ counsel also argued that it is not within the powers of the trial Court to ignore the law on the issue of self-help canvassed before the Court simply because a demolition notice was issued to the Appellants and that a demolition notice is not an order of Court. The Appellants’ counsel cited Sections 87(e) and 89(c) of the Evidence Act, 2011.
The Appellants’ counsel further argued that the Appellants even without allocation papers have the standing in law to question the Respondent’s action of demolishing their shops by self-help. On this point, counsel cited the case of D.M. OKOCHI VS. CHIEF AMUKALI ANIMKWOI (2003) 18 NWLR (PT.851) 1 AT PG. 28 PARAS E – F.
The Appellants’ counsel also argued that another complaint by the Appellants that the trial judge ignored was the complaint that the Respondent failed to afford the Appellants any opportunity to be heard on why their shops should not be demolished before they went ahead to demolish the Appellants’ shops. Counsel argued that the trial judge ought to have assessed the exemplary damages that the Appellants claimed even if the Appellants’ claim was dismissed. Counsel further submitted that this Court can by virtue of Section 15 of the Court of Appeal Act make the award. On this point counsel cited the case of F.B.N. PLC VS. A.G FED (2018) 7 NWLR (PT.1617) PG. 121 AT 160 PARAS A – C.
In conclusion, the Appellants’ counsel submitted that this Court ought to take judicial notice of the inflation and the pains inflicted on the Appellants by the Respondent.
On issue three, counsel to the Appellants argued that the complaint on this issue is the holdings of the learned trial judge at page 661 of the Record of Appeal which was reproduced thus:
From the facts adduced in evidence, the parties knew that the said concession was temporary in nature and even if the structures were protyped, it was not meant to be a permanent fixture.
The Appellants’ counsel further argued that the un-contradicted evidence before the trial Court does not show that all parties admitted that the concession was temporal and the structures were not meant to be permanent fixtures.
The Appellants’ counsel further argued that the testimony of the Appellants through PW1 and PW2 that the prototyped building they erected as shops were meant to be permanent fixtures were not challenged nor effectively denied by the Respondent’s sole witness, DW1. Counsel argued that the learned trial judge ignored these pieces of evidence and failed to evaluate them before reaching a conclusion.
In conclusion, the Appellants’ counsel urged this Court to allow the appeal and set aside the decision of the learned trial judge.
On the other hand, the Respondent filed its brief of argument dated 1st April, 2019 and filed on 2nd April, 2019 settled by its Counsel, Christopher Eichie, Esq. who adopted and argued the issues for determination as submitted and canvassed by the Appellants as follows:
1) Whether the learned trial Judge from the evidence before his Lordship in this case was correct in law to have ignored and failed to determine the applicability of the principle of law in Gov. Lagos State V Ojukwu (1986) 1 NWLR (PT.18) 621 which the Appellants in the circumstances of their case before the trial Court, relied upon for the determination of their case? (Ground1)
2) Whether the learned trial Judge was correct to have dismissed the claims of the Appellants in the Court below in view of the totality of the evidence adduced by the parties at the trial Court and relevant applicable laws? (Grounds 2, 3, 4, 5, 6, 7, 8, 9, 11, 12 and 13).
3) Whether in the circumstances of the Appellants’ evidence before the learned trial judge, his lordship, the learned trial judge was correct to have held that the concession given to the Appellants (Plaintiffs) was temporal in nature and the structures were not meant to be permanent fixtures? (Ground 10).
On issue one, counsel to the Respondent argued that in evaluation of evidence, the trial Court must put the totality of evidence adduced by both parties on an imaginary scale and weigh before it reaches a decision on which evidence it prefers. On this point counsel cited the case of OKADIGBO VS. OJECHI (2011) ALL FWLR (PT. 601) P. 1584 – 1585 PARAS F – B.
The Respondent’s Counsel therefore submitted that the trial judge properly applied the aforementioned factors in evaluating the evidence and considered the principle of lispendis in both cases of GOVERNOR OF LAGOS STATE VS.CHIEF EMEKA ODUMEGWU OJUKWU (1986) 3NWLR (PT.18) 621and ENEKWE VS. IMB (2006) 19 NWLR (PT.1013) 146.
The Respondent’s counsel also argued that the Appellants’ grouse is that the trial Court allegedly ignored the applicability of lispendis in the case of GOVERNOR OF LAGOS STATE VS. OJUKWU (SUPRA) and failed to apply the principle in the evaluation of its evidence. Counsel submitted that the trial judge did not dwell on the doctrine of lispendis because the proper parties were not before it especially in the light of the Appellants’ failure to prove that they were entitled to the reliefs they sought. On this point counsel cited the case of BAJEHSON VS. OTIKO (2018) 14 NWLR (PT. 1638) P.155 PARAS B – D.
The Respondent’s counsel argued that while agreeing with the assertion of the Appellants that the Respondent’s sole witness admitted before Honourable Justice Ademola that the Respondent had allocated shops to the Appellants, the said witness in the same proceeding which started de novo before Honourable Justice Ojukwu, stated that the Respondent had reviewed its records and did not know the present Appellants and that during cross-examination, the DW1 testified to the reason why the witness made the previous statement.
The Respondent’s counsel further argued that DW1 clearly gave cogent reasons for recanting on her earlier admission in the previous suit and moreso in Section 27 of the Evidence Act, admissions are not regarded as conclusive proof of the matters admitted but they can in some, not in all circumstances operate as an estoppel under Part X of the Evidence Act.
The Respondent’s counsel also argued that unlike the case of PINA VS. MAI-ANGWA (2018) 11 NWLR (PT 1630), the Appellants did not in any way act on the Respondent’s previous admission that the shops were given on concession to the Appellants. The Appellants did not alter their position to their detriment to warrant the applicability of the doctrine in PINA’S case to their case.
The Respondent’s counsel further argued that the trial Court had the privilege to study the demeanor of the Respondent’s witness rightly evaluated the testimony of the witness. Therefore, the Appellants cannot at this point, sway the mind of this Court to do otherwise, the said witness having explained the circumstances of the previous admission and the reason for the change of testimony. On this point, counsel cited the case of AGBI VS. OGBEH (2006) 11 NWLR (PT.990) 65 AT 128 PARA H.
The Respondent’s counsel further submitted that the Appellants seek to rely on an irregularity in the Respondent’s testimony in proof of their case when it could provide evidence either primary or secondary to prove that the Respondent had allocated shops to all 276 persons.
The Respondent’s counsel also argued that the Appellants misconstrued the reasoning of the Court in PINA VS. MAI-ANGWA (2018) 15NWLR (PT.1643) and that clearly, the facts in that case is different from this instant case to the extent that in that case, the witnesses intentionally misrepresented facts before the Court to which the other party acted to his detriment.
The Respondent’s counsel submitted further in conclusion of his argument on this issue that the trial Court considered the totality of the evidence placed before it and accorded each party fair hearing. And that no miscarriage of justice was occasioned to the Appellants in the course of the trial Court’s exercise of its judicial functions.
On issue Two, the Respondent’s counsel argued that while denying ever allocating the spaces at the said mammy market to the Appellants, the Respondent on the other hand tendered Exhibits F, G1, G2 and G3 to demonstrate to the learned trial Court that letters and receipts, in the manner of the said exhibits were issued to persons who were allocated spaces at the mammy market, subject matter of this suit. However, the Appellants who claimed ownership to the shops did not produce any copy of the said exhibits not even a single photocopy.
The Respondent’s counsel also argued that the pieces of evidence highlighted in paragraphs 4.2.2 – 4.2.4 in sum represents those which were presented by the parties to the appeal at the trial Court and therefore submitted that the trial Court properly evaluated same and rightly came to its finding in pages 661 – 662 of the record of appeal.
The Respondent’s counsel submitted that it is trite that cases are decided on preponderance of evidence and this appeal no matter the claim of the Appellants cannot be an exception to this principle. On this point, counsel cited the case of OHOCHUKWU VS. A.G RIVERS STATE (2012) ALL FWLR (PT.26) 412 AT 438 – 439 PARAS G – A.
The Respondent’s counsel argued that it is a foundational position of the law by the provisions of the Evidence Act, that it is he who asserts to the existence of fact that bears the burden to prove the assertion and in the instant case, it was the Appellants who asserted the fact of their ownership of spaces at the mammy market. That the burden was therefore on the Appellants to prove that which they have asserted in their pleadings. On this point, counsel cited the case of DAODU VS. N.N.P.C. (1998) 2 NWLR (PT.538) 355 AT 365 PARAS D – E.
The Respondent’s counsel further submitted that the Appellants have a very weak case, to the extent that the Appellants who number up to 276 could not produce either by way of photocopy or original letters of allocation or receipts of payment of rent as demonstrated in Exhibits F, G1, G2 and G3 any evidence to buttress or prove their claim.
The Appellant’s counsel argued that rather than bring material evidence that will come to their aid, the Appellants excessively laboured, albeit in vain, to rely on an admission by the Respondent in order to prove their case and have declaratory reliefs granted. Counsel further argued that under the best evidence rule, it is not sufficient for the Appellants to lead viva voce evidence to prove an issue that by its nature is documentary. See OSIBOWALE VS. CARRIBEAN FINANCE LTD (2012) ALL FWLR PT. 627.
The Respondent’s counsel further argued that it is trite that the evidence of a witness taken in earlier proceedings is not relevant in a latter trial except for the purpose of discrediting such witness during cross-examination and for that purpose only. Counsel cited the case of OBAWOLE VS. COKER (1994) 5 NWLR (PT.345) 416 AT 439 and Section 46 of the Evidence Act.
The Respondent’s counsel further argue that the submission of the Appellants’ counsel in paragraphs 6.3 of the Appellants’ Brief of Argument, in relation to Section 19 – 26, 133 and 169 of the Evidence Act on the evidence of admission, does not apply herein because the Respondent categorically denied issuing letters of allocation and receipts of payments to the Appellants,
in that the Appellants, upon further review of the Respondent’s records, were discovered not to be part of the allottees who were given spaces at the mammy market.
The Respondent’s counsel further argued that it is curious, how out of 276 Appellants, no one could make a single copy of a document as valuable as allocation letters or receipt of payment in relation to the Appellants interest in the mammy market.
The Respondent’s counsel also submitted that the Appellants while filing the said Suit No: FHC/ABJ/648/13 attached a copy of the Notice of Vacation but failed to attach any copy of their allocation letters or receipts. Counsel argued that even the receipt that was attached belonged to one Chioma Onogbe who is not part of this appeal.
In conclusion, the Respondent’s counsel submitted that there was no evidence led by the Appellants for evaluation by the trial Court.
On issue three, the Respondent’s counsel argued that the trial judge held correctly that the parties knew that the concession was temporary in nature and that Exhibit F contains terms and conditions for the use of the space. The Respondent’s counsel further submitted that the DW1’s testimony at the trial Court withstood the test of cross-examination and positively affirmed that the allocation of the mammy market was for temporary structures. On this point counsel referred to the case of OSIBOWALE VS. CARRIBEAN FINANCE LTD and submitted that it is settled law that oral evidence cannot be used to vary the contents of a document and the Appellants cannot rely on oral testimonies of his witnesses to vary the contents of the documents tendered before the Court.
The Respondent’s Counsel argued that the argument of the Appellant’s counsel that the Respondent’s witness at the trial Court was not in the employ of the Respondent at the time of the concession is of no moment and not hearsay as the Respondent witness is deemed to be seized of the transaction that occurred in the Respondent’s company upon the resumption of her employment.
In conclusion, the Respondent’s counsel urged this Court to dismiss the contention of the Appellants that the structure was permanent as they have adduced no evidence in support of that fact. Counsel further urged this Court to dismiss this appeal and affirm the decision of the trial Court.
The Appellants’ counsel also filed a reply brief of argument dated 20th February, 2020 and filed 26th February, 2020 settled by his Counsel S.C. Peters, Esq. In the said Reply Brief of Argument, the Appellants’ counsel argued that the Respondent in its brief of argument raised some fresh issues especially the “issue of error”.
The Respondent’s counsel submitted that on the issue of error that the Respondent mentioned in paragraph 4.1.6 at page 6 of the Respondent’s brief of argument, the admission made by the Respondent that the Appellants were known to the Respondent and that the Appellants had shops that were demolished by the Respondent on the 30th September, 2013 as contained in Exhibits E and J has ripen into estoppel that the Respondent cannot deny the truth of the matter.
The Appellants’ counsel further argued that the estoppel in our jurisprudence cannot be impeached upon the plea of mistake in the conduct or representation of facts especially in this case where the presentation and conduct as x-rayed in Exhibits E and Jwere made under oath, free from every external influence. On this point, counsel referred to the cases of PINA VS. MAI-ANGWA (2018) 15 NWLR (PT.1643) 431 AT P.441 PARAS F – H and OKPALA & SONS LTD VS. NIGERIAN BREWERIES PLC (2018) 9 NWLR (1623) 16 AT PP. 35 – 36 PARAS H – C.
The Appellants’ counsel argued that as touching the failure of attaching the letters of allocations to Exhibit C, this point was not raised at the trial Court and the said Court did not decide on same and that the Respondent had no leave to raise this point for the very first time especially without filing any Cross Appeal or Respondent’s Notice. Counsel cited the case of F.R.N. VS. NWOSU (2016) 17 NWLR (PT.1541) 226 AT P.275 PARAS F.
The Appellants’ counsel also argued that the fact that the Appellants attached Exhibit C, the notice to vacate meant they were served as the owners of these shops, and that the act is also an admission by conduct which confirmed the series of admissions made by the Respondent in Exhibit D and J.
In conclusion, the Appellants’ counsel urged this Court to discountenance the argument made by the Respondent and allow this appeal.
MAIN JUDGMENT
Having read the briefs filed by the parties, I shall adopt the issues formulated by the Appellants in the resolution of this appeal.
ISSUE ONE
Whether the learned trial judge from the evidence before his lordship in this case was correct in law to have ignored and failed to determine the applicability of the principle of law in GOV. LAGOS STATE V. OJUKWU (1986) 1 NWLR (PT. 18) 621 which the Appellants in the circumstances of their case before the trial Court relied upon for the determination of their case. (Ground 1)
In addressing issue one, I would first look at the point addressed by the Appellants’ counsel in paragraphs 5.1 – 5.10 of the Appellants Brief of Argument as it relates to the non-applicability of the principle in the case of MILITARY GOVERNOR OF LAGOS STATE VS. CHIEF EMEKA ODUMEGWU OJUKWU (1986) 3 NWLR (PT. 18) 621 which was argued in the Appellants’ final written address before the trial Court and which counsel argued that the trial Court failed to consider.
I have read the judgment of the trial Court especially from pages 656 – 665 and I agree with the argument of the Appellants’ counsel in paragraphs 5.1 – 5.2 of the Appellants’ Brief of Argument that the trial judge ignored the applicability of the principle in the case of MILITARY GOVERNOR OF LAGOS STATE VS. CHIEF EMEKA ODUMEGWU OJUKWU (1986) 3 NWLR (PT. 18) 621 to the Appellants’ case but instead relied on the case of ENEKWE VS. I.M.B. (2006) 19 NWLR (PT.1013) 146 in concluding that the facts of the case is not on the doctrine of lispendis as all the requirement of lispendis are not before the Court.
I have also read the case of MILITARY GOVERNOR OF LAGOS STATE VS. CHIEF EMEKA ODUMEGWU OJUKWU (1986) 3 NWLR (PT. 18) 621, and it is obvious that there are two principles which the Court addressed in the said case:
1. Lis pendis
2. Self help
The trial Court at pages 657 and 659 of the Record of Appeal confirmed that the claims of the Appellants were on grounds of purported wanton destruction of the Appellants’ shops thus:
PAGE 657
“From the claims as couched in the writ of summons, the grouse of the Plaintiffs is the alleged wanton destruction of the Plaintiffs’ shops situate at the mammy market at the Nnamdi Azikiwe International Airport, Abuja without giving them an opportunity to be heard. The Plaintiffs complained that the action was high handed and illegal.”
PAGE 659
“In the instant case, the Plaintiffs’ complaint was the alleged action of the Defendant, a government agency in pulling down their shops without affording them a right to be heard….”
I do not agree with the submission of the Respondent in paragraph 4.14 of his brief of argument that the trial Court did not dwell on the doctrine of lispendis in the OJUKWU’S case because the proper parties were not before it. This was never a reason given for the said decision of the trial Court in this regard.
The trial Court should have considered the said principle and also gone ahead to give its reasoning for arriving at any conclusion therefrom. In their final written address particularly as contained in pages 551 and 552 of the Record of Appeal, the Appellants relied on both the principle of lispendis and self-help as enunciated by the Supreme Court in the OJUKWU’S case. The Court failed to consider side by side the principle of lispendis in the OJUKWU’S case and the case of ENEKWE VS. I.M.B. (2006) 19 NWLR (PT.1013) 146. The trial Court just deemed it fit to consider the ENEKWE’S case cited by the Respondent and abandoned the OJUKWU’S case cited by the Appellants.
In the case of ODOAKPU COMMUNITY BANK NIG.LTD VS. IBETO & CO. LTD (2007) ALL FWLR (PT. 350) 1409 AT 1413 PARAS C – E, this Court has reiterated that:
“Counsel’s address is part and parcel of the case of a party and a trial Court or any Court for that matter should use it to assist it in fully appreciating the case of the party. However, failure to take counsel’s address into consideration cannot vitiate the judgment of a Court unless it is shown clearly that that failure caused the Court to derail in the judgment. See also the case of OGUNYOMBO VS. OKOYA (2002) 16 NWLR (PT. 793) 224.”
As I said earlier, I have read the judgment in the OJUKWU’s case and there is one thing which is consistent in that case. The parties remained the same from the trial Court even unto the Apex Court. While in this case, the parties in the said suit No: FHC/ABJ/648/13 BETWEEN TITUS ANYILE, CHIOMA ONUGBE SUING FORTHEMSELVES AND AS REPRESENTING ALL THE OWNERS OF SHOPS SITUATE AND LYING AT THE MAMMY MARKET NNAMDI AZIKIWE INTERNATIONAL AIRPORT, ABUJA VS. MRS STELLA ODUAH-OGIEMWONYI, FEDERAL AIRPORTS AUTHORITY OF NIGERIA AND ORS which the Appellants claimed to be pending when the alleged demolition by the Appellants was done, is different from the parties in Suit No: FHC/ABJ/CS/782/16 BETWEEN CHIEF BEN UZOIGWE & 275 ORS VS.FEDERAL AIRPORTS AUTHORITY OF NIGERIA.
I have even gone as far as perusing the originating process of the suit No: FHC/ABJ/CS/782/16 BETWEEN CHIEF BEN UZOIGWE & 275 ORS VS. FEDERAL AIRPORTS AUTHORITY OF NIGERIA and I could only find the name TITUS ANYILE as the 49th Plaintiff but the name, CHIOMA ONUGBE who was also a plaintiff in SUIT NO:FHC/ABJ/648/13 BETWEEN TITUS ANYILE, CHIOMA ONUGBE SUING FOR THEMSELVES AND AS REPRESENTING ALL THE OWNERS OF SHOPS SITUATE AND LYING AT THE MAMMY MARKET NNAMDI AZIKIWE INTERNATIONAL AIRPORT, ABUJA VS. MRS STELLA ODUAH_OGIEMWONYI, FEDERAL AIRPORTS AUTHORITY OF NIGERIA AND ORS which suit the Appellants herein have argued to be pending in Court before the purported demolition of their shops was missing.
How can I be certain that the said case is the same with the case giving rise to this instant appeal? Also, there is nothing on record to show also that the said case went from merely filing papers to hearing of the motion for interlocutory injunction or was there any order of Court as it relates to the said shops subject matter of this appeal?
In conclusion, there would be no need for me to consider the legality or otherwise of the demolition of the said shops at the Nnamdi Azikiwe Airport mammy market during the pendency of Suit No: FHC/ABJ/648/13 BETWEEN TITUS ANYILE, CHIOMA ONUGBE Suing for themselves and as representing all the owners of shops situate and lying at the Mammy Market Nnamdi Azikiwe International Airport, Abuja Vs. MRS STELLA ODUAH-OGIEMWONYI, FEDERAL AIRPORTS AUTHORITY OF NIGERIA AND ORS as the parties in this suit are in my view, different from the one in the suit before the trial Court subject matter of this appeal.
Much having been said, the Appellants also claimed that they were served a Notice of Vacation. Assuming that they were served the said notice, what more could have shown better that the Respondent gave the Appellants fair hearing which opportunity the Appellants could have explored but instead they rely on a principle of law in its final address without any sufficient evidence to show that the demolition of the shops was illegal.
No matter how brilliant the address of counsel is, it cannot be a substitute for pleadings or evidence. See the case of EDWARD OKWEJIMINOR VS. G. GBAKEJI & ANOR (2008) LPELR – 2537(SC) Per. Muhammad, JSC.
What the Appellants failed to prove in evidence cannot be replaced by their final address. See also, the case of OSUIGWE VS. NWIHIM (1995) 3 NWLR (PT. 386) 752.
On the whole therefore and upon evaluation of the evidence before the Court and the principle in the said OJUKWU’S case, I hereby resolve this point in favour of the Respondent.
Now on the point raised by the Appellants’ counsel especially in paragraphs 5.11 – 5.18 of the Appellants’ brief of argument wherein the Appellants’ counsel argued that the trial Court ignored Exhibits E and J i.e. the witness statement of the Respondent’s witness and cross-examination of the Defendant’s witness respectively.
Firstly, it is important to state here that assuming the Respondent took over the Appellants allocated shops for its use as argued by the Appellants in paragraph 5.11 of its brief of argument, a clear reading of paragraph 7 of the Witness Statement on Oath as reproduced by the Appellants’ counsel in the said paragraph 5.11 shows that there was a reason for the said step as stated in paragraph 8 of the witness statement also reproduced in the same paragraph 5.11 of the Appellants’ Brief of Argument. See the case of KAMALU & ORS VS. UMUNNA & ORS (1997) LPELR – 1657(SC) AT P.27, PARAS.D – F wherein the Supreme Court per Belgore, JSC reiterated thus:
“Admission per se is conclusive proof of the entire matter in litigation, but it stands firmly on the subject of the admission against the person making it. Also it must be viewed in relation to the entire evidence before the Court to know the weight to attach to it”. (Emphasis mine).
This Court cannot just rely on the argument of the Appellants’ counsel that the Respondent admitted that it allocated shops to the Appellants which he later took over same. This without more cannot amount to an admission. The claim of the Appellants to me is the alleged destruction of the Appellants’ shops without giving them an opportunity to be heard. The so called admission in my view is a statement of fact. The Appellants’ counsel in his argument should have stated further if there was any evidence on record to show that the Respondent did not give the Appellants fair hearing before they went ahead to demolish the Appellants’ shops.
The Respondent’s witness made statement in his witness statement that the Respondent took over the site, yes! but this to me does not amount to an admission as the Appellants perceived it to be. If the said statement of the Respondent’s witness was taken as a whole, then paragraph 7 and 8 of the witness statement should be read together to mean that the taking over of the Appellants’ shops was as a result of the failure of the Appellants to comply with what was stated in paragraph 7. The Appellants’ counsel cannot therefore adopt some portions in the said Respondent’s witness statement and call it an admission by the Respondent.
On the other hand, Exhibit J which contains the cross–examination of the Respondent’s Witness at pages 913 – 915 was conducted before Honourable Justice A.F.A. Ademola from where the matter was transferred to Honourable Justice Ijeoma L. Ojukwu to start de novo. It would therefore be important for me to state the effect of a trial de novo. In the case of ZENITH BANK & ORS VS. OGBODU & ORS (2017) LPELR – 42734(CA) this Court per Garba, JCA at Pp. 14 – 17, Paragraphs E – F citing the case of BABATUNDE VS. P.A.S. & T. A. LIMITED reiterated that the simple implication of a trial de novo, as judicially stated, is that the hearing or trial of a case is to commence afresh. This Court went further to reproduce the holding of the apex Court in that case inter alia:
“… that a trial de novo could mean nothing more than a new trial. This further means, that the Plaintiff is given another chance to relitigate the same matter or rather, in a more general sense, the parties are at liberty once more to reframe their case and restructure it as each may deem it appropriate.”
Also, the Court cited the case of OMISORE VS. STATE (2005) 12 NWLR (PT. 940) 591 @ 606, where the Court held inter alia that:-
“The effect of starting a case de novo before another judge is to render null all pending proceedings including orders made.”
The Court also referred to the cases of ODI VS. OSAFILE (1987) 2 NWLR (2005) 1510 @ 512; BAMAIYI VS.STATE (2006) 12 NWLR (PT. 994) 221 @ 240; FRN VS. BULAMA (2005) 16 NWLR (PT. 951).
By these authorities, the trial and hearing of the case before the trial judge Honourable Justice Ijeoma L. Ojukwu to whom it was transferred to for trial de novo, was to commence afresh or start from the beginning again.
It is however noteworthy that the trial of the case before Ademola J including the cross-examination of the Respondent as contained in Exhibit J at pages 913 – 915 of the Record of Appeal ceases to exist as far as this case, subject matter of this appeal is concerned. In considering the totality of the authorities cited above and my findings therefore, this point and in fact, issue one is resolved in favour of the Respondent.
ISSUE TWO
Whether the learned trial judge was correct to have dismissed the claims of the Appellants in the Court below in view of the totality of the evidence adduced by the parties at the trial Court and relevant applicable laws? (Grounds 2, 3, 4, 5, 6, 7, 8, 9, 11, 12 and 13)
On Issue two, the argument of the Appellants’ counsel in summary is that there was no need for the Appellants to produce allocation letters in proof of the fact that the Respondent actually allocated the shops to them as the Respondent has already admitted that it allocated shops to the Appellants and that the case of the Appellants before the trial Court was not to determine who the owners of the shops were by virtue of letters of allocation but illegalities that resulted from the use of self-help in the demolition of the Appellants’ shops by the Respondent.
Another argument of the Appellants is that the trial Court ignored the complaint of the Appellants that the Respondent did not give them fair hearing before demolishing their shops. It is now pertinent for me to highlight some of the evidence before the trial Court hereunder.
As regards the argument of the Appellants in paragraphs 6.3, 6.4, 6.5, 6.6 and 6.7 of the Appellants’ Brief of Argument which argument was based on the decision of the trial judge in pages664 – 665 of the Record of Appeal which I would reproduce here under thus:
“The Plaintiffs had notice of the demolition, removed their wares and curiously refused to remove their valuable documents which would have assisted them to prove their case if indeed they had any.”
The above finding of the Court should make me worried because I wonder where and how the learned trial judge made her finding and conclusion that the Appellants removed their wares from their shops before the demolition of the said shops. It is not sufficient to conclude that if the Appellants were given notice of the said demolition by the Respondent, then they must have removed their wares. The business of the Court is to arrive at a just determination of a case based on the evidence before it. The Court has no business to speculate. See the cases of OKOYA & 2 ORS VS. SANTILLI & 2 ORS (1993 – 1994) ALL NLR 404; AGIP (NIGERIA) LTD & 8 ORS VS. CHIEF C. EZENDU & 9 ORS (2010) 1 SC (PT. 11) 98.
I have also examined the evidence of the Appellants’ witnesses as contained in pages 615 – 624 of the Record of Appeal and there is no where they gave evidence of the fact that they actually removed their wares before the demolition by the Respondent. Therefore, by holding that the Appellants removed their wares before the demolition amounts to making case for the Respondent in that regard. It is a cardinal principle of law that it is not for the Court to make a case of its own or to formulate its own case from the evidence before it and thereafter to proceed to give a decision based upon its own postulation quite different from the case of the parties before it. See ADENIJI VS. ADENIJI (1972) 4 SC 10; PASCUTTO VS. ADECENTRO (NIG.) LTD (1997) 11 NWLR (PT. 529) 467.
Having said that, on the other hand, as regards the argument of the Appellants’ counsel especially in paragraphs 6.8–6.35 of the Appellants’ brief of argument, wherein counsel argued that the Respondent never denied that the Appellants were allottees of the shops and which argument is based on the decision of the Court in pages 661 – 662 of the Record of Appeal and reproduced as follows:
Page 661 – 662
“In respect to the claim of the Plaintiffs that they were given allocation letters bythe Defendant, the Defendant denied that assertion and stated that though they had earlier admitted in the previous trial that they knew the Plaintiffs, but that on going through their records subsequently they found that the Plaintiffs on record were not the concessionaires they allocated shops. They tendered evidence of their provisional approval for business space, receipts and agreement letter as Exhibits F, G1, G2 and G3 respectively and samples of their sales agreement as Exhibits H1, H2 and H3. That being their case, the burden of proof of the Plaintiffs’ assertion shifts to the Plaintiffs.”
Before I go any further, it would be important to state here that based on my finding on issue one and the consideration that the suit subject matter of this instant appeal started de novo before the trial Court that gave judgment, any further argument in the Appellants’ brief of argument as regards the proceedings before Ademola J will not be considered.
Having said the above, it would be important to examine some pieces of evidence as regards the identification of the Appellants as the original allotees of the said shops.
Firstly, I would love to take a look at the pleadings and witness statement on oath of the Respondent at the trial Court and in doing so, I may be forced to invoke the interpretative jurisdiction of the Court.
Firstly, let me examine paragraphs 2 and 3 of the Amended Statement of Defence as contained in page 335 of the Record of Appeal.
Paragraph 2
“The Defendant denies Paragraphs N1 and N2 of the Amended Statement of Claim and avers that all the Plaintiffs are unknown to the Defendant and were not allocated spaces at the then mammy market of the Nnamdi Azikiwe International Airport, subject matter of this suit, by the Defendant.”
Paragraph 3
“The Defendant admits Paragraph N4 of the Amended Statement of Claim only to the extent that it designated portions of the land that made up the airport, for market purposes. The Defendant avers that the spaces allocated to the allottees were given as concession, at a graduated sum, commencing from N1,000 (One Thousand Naira) per month, for a period of one (1) year. An example of a letter of provisional approval for business space and receipts of payment for monthly rent/operation fees are hereby pleaded. The said letters and receipts were never issued to any of the Plaintiffs because all the Plaintiffs are unknown to the Defendant.” (Emphasis mine)
Secondly, I would further examine Paragraphs 4 and 5 of the Respondent’s Statement of Claim as contained in pages 350 – 351 of the Record of Appeal thus:
Paragraph 4
“That all the Plaintiffs are unknown to the defendant and were not allocated spaces at the then mammy market of the Nnamdi Azikiwe International Airport, subject matter of this suit, by the Defendant.”
Paragraph 5
“The Defendant designated portions of the land that made up the airport, for market purposes and allocated spaces to the allottees which spaces were given as concession, at a graduated sum, commencing from N1,000 (One Thousand Naira) per month, for a period of one (1) year. Letters of provisional approval for business space and receipts of payment for monthly rent/operation fees were given to the allottees but same were never issued to any of the Plaintiffs because all the Plaintiffs are unknown to the Defendant.” (Emphasis mine).
Also, during the evidence in chief of the DW1 contained in pages 624 – 625 of the Records of Appeal, the Respondent tendered 6 documents which were admitted and marked Exhibits as follows:
Exhibits F – Provisional approval for business dated 9th December, 2002
Exhibits G1, G2 and G3 – Three receipts from the Federal Airport Authority dated 23rd day of August, 2004, 11th day of, March 2005 and 9th day of August, 2009 respectively.
Exhibits H1 and H2 – Copies of Agreement letter and sales agreement.
During the cross-examination of the Respondent’s witness DW1 as contained in page 625 of the Record of Appeal as follows:
“Question: On the 12th Day of October 2017 you state that the present Plaintiffs were allottees of the shops.
Answer: We allocated the shops to concessionaires, but upon our review of our records, we discovered that the present Plaintiffs were not allottees of the shops at the airport.”
In view of the reproduced evidence of the Respondent before the trial Court, it is very glaring that the Respondent did not at any point admit during the trial before Ojukwu J that it allotted the said shops to the Appellants neither did it agree that it knows the Appellants.
From the evidence in the pleadings, statement on oath and during its evidence through DW1, the Respondent totally denied knowing the Appellants and it even showed by the evidence in Exhibits F, G1, G2, G3, H1 and H2 that the Appellants are not the concessionaires but instead the said exhibits showed provisional letter to one Zaminu Rabe, payment receipts by one Maiwama investment, shop G.23, sales agreement between one Laminu Rabiu and Alh. Ahmed Shehu Garo and agreement letter between Ahaji Usman Mai Kilishi. These transactions do not in any way involve any of the Appellants.
Owing to the examination of the evidence already made above, it is my unshaken view that the burden of proof now rest on the Appellants to show that infact they were issued allocation letters by the Respondent to substantiate their claim that they are the allotees of the shops.
It is not enough that the Appellants stated facts and gave oral testimony that they were the allotees to the said shops, nothing more was made to substantiate their claim. Instead, they claimed that the Respondent destroyed their valuable properties including their various allocation papers to their shops which because of inspection of title documents that is usually carried out by the Respondent was always in their shops. See paragraph 35 of the amended writ of summons contained in pages 216 and 217 of the Record of Appeal.
If I must borrow the words of the trial judge in her judgment at page 663 of the Record of Appeal, I must say that it is very curious indeed that none of the 276 Appellants on record could produce a copy of their allocation letters not even a photocopy. How then does the Appellants expect the Court to arrive at the conclusion that they are indeed allottees of the said shops? This Court has reiterated in the case of ALHAJI MUKAILA KOTUN & ORS VS. MRS ADEOLA OLASEWERE & ORS (2010) 1 NWLR (PT. 1175) 411, 437 and stated that:
“The position of the law is that documentary evidence always serves as a hanger from which to access oral testimony, consequently when documentary evidence supports oral testimony as in this case, oral testimony becomes more credible.”
Also in FIRST AFRICAN TRUST BANK LTD VS. PARTNERSHIP INV. CO. LTD (2003) 18 NWLR (PT. 851) 35, 74,the Supreme Court held that:
“Documentary evidence, where this is relevant, ought to be produced and tendered as they speak for themselves as against the ipse dixit of a witness in respect of such transactions which may not be readily accepted by the Court.”
Going further, the Appellants’ counsel argued in paragraph 3.26 and submitted that it is not who owns the shops by letters of allocation that was presented to the trial judge for determination but of illegalities.
It is helpful that I have already addressed the issue of the whether the Appellants are allottees of the shops by virtue of allocation. Assuming but not conceding that the Appellants are right, the Court can still on its own examine whether the Appellants are allotees to determine if any illegality has arisen from the whole transaction. It must equally be admitted that Judges are not robots (or zombies) who have no minds of their own. They are intrepid by their great learning and training and can distinguish in order to render justice to whom it is due. See the case of MAGIT VS. UNIVERSITY OF AGRICULTURE, MAKURDI (2006) ALL FWLR (PT. 298) 1313 AT 1345, per Pats-Acholonu, JSC.
Much having been said, based on my findings from the evidence before this Court and the conclusion that the Appellants have not shown that they are allotees, it is equally my strong view that the Appellants were not the allotees that were served the said Notice of Vacation from mammy market dated 20th September, 2013 which is fair hearing to the allotees given by the Respondent to enable them vacate the said shops. Apart from the address stated as F70 on the said notice, there is nothing else to show that the allotees served with the said notice are the same as the Appellants before this Court. Therefore, it is only allotees of the said shops that can claim that an illegality was done to them if any exists or even claim any relief or remedy therefrom.
Also, just for the sake of mention, it is necessary to restate as already considered under issue one that the Appellants were not even parties in the said Suit No: FHC/ABJ/648/13 which they stated was pending before the Court at the point of demolition of the shops.
As regards the award of damages, a person who cannot prove to be a part of a transaction cannot benefit therefrom.
See the case of IKPEAZU VS. ACB LTD (1965) NMLR 574 AT 379. It is therefore my strong and well considered view from all my findings above, that the Appellants are not entitled to the award of damages or post judgment interest. Issue two is hereby resolved in favour of the Respondent.
ISSUE THREE
Whether in the circumstances of the Appellants’ evidence before the learned trial judge, his lordship, the learned trial judge was correct to have held that the concession given to the Appellants (Plaintiffs) was temporal in nature and the structures were not meant to be permanent fixtures?(Ground 10).
I do not intend to dwell much on this issue. However, I would love to look at Paragraphs 4 of the Amended Statement of Defence at page 336 of the Record of Appeal and reproduce hereunder thus:
“The Defendant admits paragraph N5 only to the extent that it allowed allotees to build shops. The Defendant avers that the concession given to the said allotees was for building of temporary structures, in accordance with an approved prototype which were shanties. There were prescribed conditions for the concession of the business spaces given to the said allotees at the mammy market, subject matter of this suit.”
The provisional approval for business space which is Exhibit F, paragraph 4 states that:
“The tenure of the tenancy shall be one (1) year subject to complete payment of all financial obligations to the authority.”
Also, in paragraph 6 of the witness statement on oath of the Respondent, the witness stated thus:
“The concession given to the said allotees was for building of temporary structures, in accordance with an approved prototype which were shanties. There were prescribed conditions for the concession of the business spaces given to the said allotees at the mammy market, subject matter of this suit.”
From the above pieces of evidence examined above, it is clear that the concession was temporary in nature and even the structures were prototyped.
Bearing in mind all the findings of this Court from the consideration of the issues above, the Appellants have not proven to be a part of the said concession. I therefore resolve this issue in favour of the Respondent.
In the final analysis, the appeal fails and it is hereby dismissed. Parties shall bear the cost of the appeal.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Mohammed Baba Idris, JCA.
I completely agree with the reasoning and conclusion that the appeal is lacking in merit. I too, do dismiss the appeal and affirm the decision of the trial Court.
PETER OLABISI IGE, J.C.A.: I agree.
Appearances:
S. C. Peters, Esq., with him, N. Eze, Esq., and D. I. Davis, Esq.For Appellant(s)
C. Moneme, Esq., with him, J. S. Joshua Esq. For Respondent(s)
