Raymond Eze V. Betram Ene (2006)
LawGlobal-Hub Lead Judgment Report
JAMES OGENYI OGEBE, J.C.A.
The appellant sued the defendants before Enugu High Court claiming a declaration of title to the disputed piece of land, damages for trespass and injunction. The suit was filed as far back as June 1977. Pleadings were exchanged by the parties and the matter went for trial before 3 distinct judges who could not hear the matter to the end. Eventually the case was heard by P.K. Nwokedi CJ (as he then was).
The facts of the case are as briefly as follows:
The Plaintiff brought the suit for himself and as representing his family called Umuonuigbo Eze. The Defendants also were sued for themselves and as representing their family called “Umunevoali. The parties are from Idedu quarter of Amokwe in Udi Local government Area of Enugu State.
The claims of the Plaintiff are:-
“1. A declaration that the land in dispute belonged to them and that they were entitled to the customary right of occupancy over same.
- The sum of N1,000.00 (One Thousand Naira) being damages for trespass.
- Perpetual injunction against the Defendants, their servants and agents.”
The parties relied on their survey plans wherein they called the disputed land “Oku Onuigbo Eze” and “Ishi Owelle Ununevoali” respectively.
The Plaintiff on record testified as PW1 and was recalled to lay foundation in respect of proceedings which previously had proceeded before Hon. Justice Obayi. PW2, a Registrar of the High Court testified and attempted to tender the record books of the former court but the court ordered the Plaintiff to apply for and tender certified copies of the relevant proceedings within seven days.
On the 15th day of February 1991, the 2nd Defendant on record was reported dead and his name was struck out leaving the 1st Defendant to continue with the matter. The certified records of proceedings in suit No.E/113/77 were produced, tendered and marked Exhibit 1 by consent of the parties. The next and last witness of the Plaintiff was PW3, his surveyor who testified and tendered the plan which is Exhibit 2. The entire case of the Plaintiff was therefore based on the testimonies of the PW1, PW2, PW3 and the witnesses who had testified in a previous proceeding tendered and marked Exhibit 1.
The 1st Defendant testified as DW1. He called DW2 (Simon Eneh) who confirmed part of his testimony, DW3 C.P.C. Nwosu his surveyor who tendered his plan as Exhibit 4 and finally the DW5 Lawrence Ezeani who came and testified as a boundary witness.
In the course of judgment the trial court held that inspite of the fact that exhibit I was tendered without objection, it remained inadmissible because the conditions laid down in section 34 (1) of the Evidence Act were not fulfilled. However, the court proceeded to consider and evaluate their evidence in the judgment a bundantia cautela and came to the conclusion that the Plaintiff failed to discharge the onus of proof imposed upon him by law irrespective of the weaknesses of the Defendant’s case. The court in consequence thereof dismissed the entire claim with N1,000.00 (one thousand naira) costs in favour of the Defendant.
Dissatisfied with the judgment the appellant appealed to this court on two grounds of appeal. The learned counsel for the appellant filed a brief and formulated 4 issues for determination out of the two grounds of appeal.
In the course of argument of the appeal when the court pointed out to the learned counsel that he could not formulate more issues than the number of the grounds of appeal, he abandoned issues 3 and 4 and the arguments thereon and they are hereby struck out.
The two remaining issues are as follows:
“(1) Whether the plaintiff/appellant was denied fair hearing?
(2) Whether the amendments of the Statement of Defence after the parties have closed their respective case over reached the case of the appellant and resulted in perverse justice?”
The learned counsel for the respondents also filed a brief and formulated 3 issues for determination. He too abandoned issue 3 in the course of the argument of the appeal and that issue and the arguments thereon are hereby struck out. The remaining 2 issues read thus:
“1. Whether the speedy trial of the suit (which had been protracted) amounted to denial of fair hearing to the parties and whether the judgment of the Honourable court is supported or based on the evidence before it.
- Whether the trial court was right in granting the amendment of the Statement of Defence at the close of the case of the parties.”
On the first issue the learned counsel for the appellant submitted that the trial judge breached the principle of fair hearing when he failed to grant the appellant adjournment to call necessary witnesses who had already given evidence before the suit was started de novo. He also complained that the trial judge did not raise the issue of admissibility of Exhibit I (testimonies of plaintiffs witnesses before an earlier judge) when it was admitted by consent of both parties but the judge suo motu rejected the document as inadmissible thus breaching the rule of fair hearing. He referred to the case of United Bank for African Limited and another v. Mrs Ngozi Achoru (1990) 10 SCNJ 17 at 26.
On the second issue the learned counsel for the appellant submitted that the amendment of the statement of defence granted by the court after the parties had closed their cases also amounted to denial of fair hearing as the appellant had no opportunity of replying to the amendment.
The learned counsel for the respondent on the first issue submitted that the speedy trial of the case by the trial Chief Judge because of the delays experienced earlier cannot be classified as a breach of fair hearing as the appellant was given ample opportunity to prove his case. The learned counsel submitted that Exhibit 1 which was admitted under Section 34 (1) of the Evidence Act by consent of both parties was actually inadmissible as the proper foundation for its admission was not laid. In spite of that, the trial court evaluated that evidence ex abunbdantia cautela and came to the conclusion that it did not assist the appellant’s claim.
On the second issue the learned counsel for the respondents submitted that the amendment of the statement of defence was to accord with the evidence already admitted in the record by both sides. The respondent had not lead any evidence or recall any witness thereafter.
Section 34 (1) of the Evidence Act reads:
“Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, it relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable:
Provided –
(a) that the proceeding was between the same parties or their representatives in interest;
(b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and
(c) that the questions in issue were substantially the same in the first as in the second proceeding.”
When Exhibit 1 was tendered by the appellant with the consent of the respondent no attempt whatsoever was made to fulfill the conditions prescribed by this section of the Evidence Act as a foundation for its admissibility.
The trial Chief Judge was right in holding that the document was inadmissible. To do that he did not require to recall the parties to address him as this was purely a matter of law which he was competent to pronounce upon. The learned chief judge out of abundant caution took a look at Exhibit 1, evaluated it and came to the conclusion that it did not assist the appellant to prove his claim.
In my respectful view there is nothing to show from the procedure adopted by the trial court that the appellant was denied fair hearing. I have looked at the record of appeal and there is nothing in the record to show that the appellant sought for adjournment to call some witnesses and the court refused to grant it. See page 36-37 of the record, where the appellant’s counsel applied for adjournment to obtain a certified copy of the evidence of a dead witness and the court obliged him. The appellant had ample opportunity to present his case before he closed it and the respondent started his own.
On the issue of the amendment of the statement of defence it is trite law that a trial court should allow amendment of pleadings at any stage of proceedings before judgment to enable matters in controversy between the parties to be completely adjudicated upon and settled once and for all. See Adetutu v. Aderohunmu (1984) 6 SC 92. The amendment granted by the trial court did not require further evidence or recall of witnesses. It was merely to bring the evidence already given in line with the pleadings. I have taken a look at the appellant’s claim before the trial court and the judgment of the trial court and the truth of the matter is that by the appellant’s pleadings and evidence he woefully failed to establish his claim for declaration of title. For example in the statement of claim paragraph 6 he did not state the chain of succession from his fore-fathers to himself. See Odi v. Iyala (2004) 8 NWLR (Pt. 875) 283. The burden was on him to prove his claim regardless of the weakness of the respondent’s case and this he failed to do. See Agbabiaka v. Okojie (2004) 15 NWLR (Pt.879) 503.
This appeal is devoid of merit and I hereby dismiss it with costs of N7,000.00 against the appellant in favour of the respondent.
Other Citations: (2006)LCN/2156(CA)
