Chief Igunbor Igbodim & Ors V. Chief Ugbede Obianke & Ors (1976)

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OBASEKI, JSC.

We allowed this appeal on the 7th day of June, 1976, and now give our reasons: The writ of summons by which the proceedings in this matter were commenced was issued out of the Benin Judicial Division of the High Court of Justice, Western Region of Nigeria on the 24th day of May, 1961. When the Mid-Western Region was created in 1963, the action was continued in the High Court of Justice, Mid-Western Region to hearing and   PAGE| 2   determination on 21st February, 1966. Being dissatisfied with the judgment of the High Court of the Benin Judicial Division, the plaintiffs appealed to the Supreme Court.

The Supreme Court on the 14th day of July, 1969, allowed the appeal and remitted the case to the High Court of Mid-Western State for hearing de novo by the appropriate High Court. The case was then listed in the High Court of Agbor Judicial Division and after amendment of pleadings, it came up for hearing before Aghoghovbia, J. Following the death of the original plaintiffs (Chief Okoh Ogbomo and Chief Nwanurazi Orobor), the present plaintiffs/respondents were substituted on their own application to continue the action on behalf of themselves and the elders and people of Owa Ekei in Ika Division.    

The claim of the plaintiffs against the defendants as contained in paragraph 31 of the amended Statement of Claim reads: “Whereby the plaintiff claim as follows: (1) A declaration that the whole land edged pink in the attached plan Exhibit ‘A’ known as Arusi Owa Ekei is the property of the plaintiffs. (2) The sum of £750 being general and special damages for trespass. (3) An injunction restraining the defendants, their servants and or agents from entering the said land”.  

An amended Statement of Defence was delivered in reply and therein the important averments in the Statement of Claim were traversed. We shall as the need arises refer to the relevant paragraph of the respective pleadings in the course of this judgment. After the exchange of amended pleadings, the following witnesses –  

PAGE| 3   George Arinze Obianwu P.W.1 Private Licensed Surveyor Samuel Ifowodo in the P.W.2  Licensed Surveyor Ministry of Lands & Housing Labord Unukesa, P.W.3  Registrar, High Court Warri Nwanurize Orobo 2nd Original Plaintiff Melekwe Iteh, P.W.4 Head Chief of Owa Eke ! Village Ihohobo Osasehi, P.W.5 Farmer in Owa in Akugbe District, Benin Oyemakono Agboje P.W.6 Farmer and Elder in ogbemudei Quarters in Agbor Martin Okudei, P.W.7 Farmer of Emuhu Gbaniyi Osafiele, P.W.8 Farmer of Umunede Amara Igbeku, P.W.9 Farmer and tenant of appellant Okpere Okoro, P.W.10 Farmer of Owa Oyibu Promise Ehiohu, P.W.11 Headmaster, Primary School of Owa Ikei   gave evidence at the instance of the plaintiffs. The defendants also adduced evidence and the following witnesses:    Obedoya Ekomwen Omoregie D.W..1  Private Licensed Surveyor  Simon Ovrere, D.W..2  Registrar, High Court, Agbor  Egbor Agboma, D.W.3  Farmer of Boll Boji, Agbor Iwe Asiwe (3rd defendant) His Highness Emmanuel Efezomo D.W..4  Obi of Owa  Michael Otianyi Okitikpi D.W.5  Divisional Office, Ika Division  Imose Ukute, D.W..6  Chief Olota of Owa  Gilbert Ndubuki, D.W.7  Teacher and Supervisor Anglican Schools, Ika and Aboli Divisions.  

PAGE| 4     gave evidence at the instance of the defendants. At the conclusion of the hearing, the learned trial Judge reviewed the evidence of the above witnesses, expunged some documentary evidence (24 Exhibits), considered the evidence left and held – “I do not set much store by Exhibits C – C6. be that as it may, I do perceive from all the evidence in this case, particularly on the face of Exhibits A, B,C and F, coupled with the evidence of the 1st, 4th and 5th witnesses for the defendants that the defendants are brazenly trying to squeeze out the plaintiffs.

I am satisfied that the plaintiffs have always occupied the area they are now claiming and I accordingly award them the title thereto. There has been no proper evidence of any special damage suffered by the plaintiffs although there is some evidence that the defendants now farm on the plaintiffs’ land. I therefore award the plaintiffs general damages assessed at N400.00. An injunction will be granted restraining them and/or their servants or agents from further entering or trespassing on the land”.  

Against this judgment the defendants lodged this appeal. Three grounds of appeal were filed but only ground 1 was argued before the court called on the respondents’ counsel. The three grounds of appeal filed read as follows: “Ground 1: The learned trial Judge: (i) erred and misdirected himself in law; and also (ii) failed to direct himself on relevant facts which were essential to correct adjudication on the matter before him when he held as follows:   (a) ‘At this juncture, I would like to allude to some of the documentary exhibits put in by both parties in this case. Exhibits D to D8 were put in through the 3rd witness for the plaintiffs who was then the Registrar of the High Court, Warri.

The documents were neither produced from his custody nor certified by him. It is my view that the documents should properly have come in either through the party or parties who obtained the certified copies from the courts or the Commissioner for Oaths who certified them. The plaintiffs’ 3rd witness did not even testify as to his predecessor who certified the documents or as to whether he was familiar with the signature of that his predecessor. Of course this would not have arisen as the document did not come from proper custody. I am therefore expunging Exhibits D – D8 from the records of this case (p.94).  

PAGE| 5   (b) The 2nd witness for the defendants was Simon Ovrere, the then Registrar of this court. He put in certain exhibits which were returned along with the file from the Supreme Court ……… This 2nd witness for the plaintiffs also put in some other documents, Exhibits J to R. During the course of hearing, I did observe in my ruling on the admissibility of these documents as to whether learned counsel for the defence wanted to avoid putting in these documents through his clients or he just wanted to save time.

The position is that these documents were tendered by the parties in the Suit No. W/100/55 which went up to the Supreme Court on appeal. The Supreme Court later sent back these exhibits with the case file. It is my view that excepting for documents which were in fact filed in court, documents such as were tendered by the parties to that suit should properly revert to the parties who tendered them.

It therefore follows that the parties to this suit should have applied in the first place to the Registrar of this court for their respective documents to enable their counsel re-tender such of them as they consider necessary and/or relevant for their conduct of this case.

Exhibits J to R were merely admitted in evidence in this case as documents returned from the Supreme Court and no more. In my view, they could not properly be put in evidence through the Court Registrar when they were not court documents as such, but exhibits in his keeping for the parties to collect. In the event, I here …

…

It is settled law that documentary evidence can be admitted in court proceedings through any witness by consent or without objection and Section 90(2) of the Evidence Act which governs proceedings in Bendel State High Court gave the learned trial Judge power to admit the said documents, notwithstanding that their makers were available and not called as witnesses.

Section 90(2) of the Evidence Act reads: “In any court proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case, it is satisfied that undue delay or expense would otherwise be caused, order that such statement as is mentioned in sub-section (1) shall be admissible as evidence or may without any such order having been made admit such a statement in evidence (a)notwithstanding that the maker of the statement is available and not called as a witness; (b) notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof certified to be true copy in such manner as may be specified in the order or as the court may approve as the case may be”.

A court of law is required and expected in all proceedings before it to admit and act on all legal evidence before it. It is at liberty when considering the judgment to be delivered, to accept, or reject it as credible or incredible, attach what weight it considers such evidence deserves and give it proper assessment and evaluation to enable it arrive at a just and proper judgment in the case. We were satisfied that in the instant case – the case now on appeal before us – the learned trial Judge had not acted on all the admissible evidence before him.

What effect the evidence the learned trial Judge expunged would have had on his mind if he had considered them, we were unable to determine and we therefore decided, in the interest of justice and of all the parties, to set aside the judgment and orders of the learned trial Judge (Aghoghovbia J) and order a trial de novo before another Judge in the appropriate Judicial Division of the High Court of Bendel State.

Other Citation: (1976) LCN/2260(SC)