1976-LCER-1066-SC
Other Citations
IN THE SUPREME COURT OF NIGERIA
On Friday, the 17th day of December, 1976
SC.368/1975
Before Their Lordships
ATANDA FATAYI-WILLIAMS….. Justice, Supreme Court
MOHAMMED BELLO….. Justice, Supreme Court
ANDREWS OTUTU OBASEKI….. Justice, Supreme Court
Between
EDWARD UWETAN OMADIDE
(For himself and on behalf of the Ekelegho section of Uwhe family of Effurun)
Appellant
And
1. CHIEF J.O. ADEJEROH
(For himself and on behalf of Uwhe family of Effurun)
2. CHIEF T.J. KODESOH
3. CHIEF D.G. ULOHO
Respondents
HELD:
The appeal is therefore allowed and the ruling of Ekeruche, J. in suit No. W/137/1973 delivered in the Warri High Court on 31st January, 1975, including his order as to costs, is hereby set aside.
RATIO DECIDENDI:
COURT – Exercise of Discretion – Where the judge is not shown to err in principle – Whether Appellate Court can interfere with
It is certainly in the interest of justice that all these matters which had been fully pleaded by all the parties should be canvassed thoroughly before the court so as to enable the court, after hearing evidence, to come to a just conclusion on the respective claims of the parties. As had been aptly put by Buckley, L.J. in Beck v. Value Capital Ltd. (1976) 2 All ER 102 at page 109a, “where a trial Judge is not shown to have erred in principle, his exercise of a discretionary power should not be interfered with unless the appellate court is of the opinion that his conclusion is one that involves injustice, or to use the language of Lord Wright, the appellate court is clearly satisfied that the judge of first instance was wrong”. Per FATAYI-WILLIAMS, J.S.C. at P. 7, Para. C.
A. FATAYI-WILLIAMS, J.S.C. (Delivering the Lead Judgment): In these proceedings commenced in the High Court of Bendel State sitting at Warri, the plaintiff, now appellant, claimed against the defendants, now respondents, as follows:
“1.As against all the defendants jointly and severally the sum of N3,000 (Three Thousand Naira) being damages for trespass committed by the defendants who sometime between 1972 and 1973 without plaintiff’s consent broke, entered upon, sold and/or bought a portion of plaintiff’s Ekelegho family land known and called IVWOVWO, lying situate and being along the Effurun-Ughelli Road, Effurun, within the Warri Judicial Division.
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2.As against all the defendants jointly and severally an order of perpetual injunction to restrain all the defendants, their servants, and or agents from committing any further acts of trespass to the said land.
3. As against all the defendants, an order of this Honourable Court setting aside the sale or lease of the said portion of the land by the 1st defendant to the 2nd defendant as evidenced by a deed of conveyance made between the 1st defendant and the 2nd defendant on the 16th day of November, 1972 and registered as No. 22 at page 22 in Volume 163 in the Land Registry, Benin City. And also setting aside the sale or lease of the same said portion of land by the 2nd defendant to the 3rd defendant as evidenced by a deed of conveyance made between the 2nd defendant and the 3rd defendant on the 6th day of April, 1973 and registered as No. 39 at page 39 of Vol. 178 in the Land Registry, Benin City.
4. A declaration that the said piece or parcel of land Ivwovwo land lying, situate and being along the Effurun-Ughelli Road which said piece or parcel of land forms part of the UWHE family land is the property of the EKELEGHO FAMILY branch of the said UWHE FAMILY and not the property of the 1st, 2nd and 3rd defendants individually or jointly nor is it the property of UWHE FAMILY as a whole”.
Pleadings were ordered and duly delivered by the parties. Paragraphs 4 and 5 of the plaintiff’s statement of claim read –
“4. This action is supported by plan No. LSU 735 prepared by Chief L.S. UFOEGBUNA, Licensed Surveyor on 16th February, 1974 and duly countersigned by the Surveyor-General of the Midwestern State on 4th May, 1974.
5. On the said plaintiff’s plan filed with this action is shown verged yellow the entire IVBOVBO LAND of the EKELEGHO family. The material portion of the said plan and land to this case is the portion verged PINK. The said portion is on the right hand down side of the land as the crow flies north. The said area is clearly marked as the area sold to Chief J.T. Kodesoh (2nd defendant) by Chief J.O. Adejeroh (1st defendant) and which the plaintiff later found to be sold by Kodesoh to Chief D.G. Uloho (3rd defendant)”.
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In his reply to the above averments, the 1st and 2nd defendants averred in paragraphs 4 and 5 of their own statement of defence as follows:
“4.As regards paragraph 5 of the statement of claim, 1st and 2nd defendants deny the plaintiff’s claim to ownership of IVBOVBO LAND. The said land is the property of UWHE family (represented by 1st defendant) save portions given out by the family.
5.1st and 2nd defendants deny the accuracy of plaintiff’s Survey Plan referred to in paragraphs 4 and 5 of the statement of claim, especially as regards the location of portions alleged sold to 2nd and 3rd defendants”.
In his own defence, the third defendant said that he was not in a position to admit or deny the plaintiff’s averment in paragraph 5 of his statement of claim. He, however, answered the averment in paragraph 4 of the statement of claim in paragraph 6 of his own statement of defence as follows:
“6.In further answer to paragraph 4 of the statement of claim the 3rd defendant says that Plan No. LSU 735 prepared by Chief L.S. Ufoegbuna filed by the plaintiff in support of his claim tells lies about itself as it fails woefully to show the exact position of the piece or parcel of land bought by the 3rd defendant from the 2nd defendant”.
Thereafter, the hearing of the case commenced on 27th January, 1975. The plaintiff’s first witness, a Senior Deeds Registrar in the Ministry of Lands & Housing, Benin City, testified as follows:
“I produce certified copies of the Deeds I have been subpoenaed to produce. I tender them. Deed No. 22/22/165 admitted as Exhibit 1. Deed No. 39/39/178 admitted as Exhibit 2. Both deeds were registered in the Lands Registry in Benin City”.
The witness was not cross-examined by learned counsel for the defence.
The plaintiff next called his second witness (Isikwe Ufoegbuna) who is a licensed surveyor to produce the survey plan referred to in paragraph 4 of the plaintiff’s statement of claim. The surveyor (2nd P1/W) testified about the said plan as follows:
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“Last year, the plaintiff instructed me to survey a piece of land for him. I carried out the survey and produced a plan of the survey. I tender the plan, admitted as Exhibit 3. I showed on Exhibit 3 the features I saw. The plaintiff and some of his relatives took me to the place”.
What transpired after this short testimony is recorded by the learned trial judge as follows:
“Cross-examination by Akporiaye: I have never seen the plan in Exhibit 1 in the case.
Cross-examination by Dr. Odje: I cannot say whether or not the land shown in the survey plan in Exhibit 1 is part of the land shown in Exhibit 3.
Re-examination by Dr. Akpojaro: It is possible if the lands in Exhibits 1 and 3 relate to the same land, to plot out one in the other if they contain points that have been previously co-ordinated on the same origin and bearings. Exhibit 3 has a Government beacon and it is possible the co-ordinates are in Benin. Exhibit 1 has a point that has been coordinated. The point is MQ 2046.
Dr. Akpojaro: At this stage asks for adjournment. Says he wants the adjournment to enable plaintiff’s plan Exhibit 3 to be amended so as to reflect Exhibit 1 as being contained in Exhibit 3″.
It is, we think, pertinent to point out at this stage that the plaintiff had already clearly indicated in the fourth leg of his claim that the land in Exhibit 1 forms part of the “Uwhe family land” in Exhibit 3. All that the learned counsel was asking for at that stage of the hearing was an adjournment to enable his surveyor (2nd P1/W) to plot the land shown in the survey plan attached to the conveyance Exhibit 1 on the survey plan Exhibit 3 which contains the larger area of land.
Learned counsel for the defendants, however, opposed the application for adjournment although there is nothing on record to indicate whether the adjournment asked for was only for a few minutes, hours, or days. The learned trial judge agreed with them and said that the trial must proceed. Learned counsel for the plaintiff thereupon explained that he could not continue with the case “as things now stand” and asked that the court should, at least, strike out the claim so as to enable him to commence the claim again, presumably after the two plans had been co-ordinated.
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In a reserved ruling, pursuant to his refusal of the application for adjournment, the learned trial judge dismissed the plaintiff’s claim in its entirety after finding as follows:
“In the present case, pleadings were ordered and delivered, issues joined and by the way the defendants joined issues with the plaintiff, it is clear that they are not only challenging the ownership which the plaintiff lays to the land in Ekelegho family to which he claims to belong but also disputing the plaintiff’s denial of the validity of what they have done as complained of by plaintiff in his first item of claim.
As I said earlier, plaintiff’s first item of claim is distinct and severable from his other items of claim and that being so I would have been disposed to hear the case to the end and at the end of the hearing dismiss plaintiff’s first item of claim if he did not eventually surmount the difficulty now facing him, and give judgment on the other items of claim as the evidence before the court may warrant on the said other items”.
This appeal is against that ruling. After hearing learned counsel for both sides, we have come to the conclusion that the appeal must be allowed. From his ruling, it seems to us that the learned trial judge has not only made findings of fact on matters on which issues were undoubtedly joined but in respect of which none of the parties had led any or adequate evidence, he has also, quite unnecessarily if we may say so, used a sledge-hammer to crack a nut. At that stage of the proceedings, all the plaintiff asked for was an adjournment to enable the court to see clearly the relationship, if any, of the plan in Exhibit 1 to the plan in Exhibit 3.
both plans had been pleaded, the defendants were not taken by surprise. No doubt, the hearing would have been delayed by the granting of the adjournment, but the defendants could have been adequately compensated by an award of costs. This would have made it possible for the court to still give the plaintiff a fair and just hearing of his claims. Moreover, we think it is precisely for a situation such as the one which arose in this case that provision is made in Order 14 of the High Court (Civil Procedure) Rules, applicable in Bendel State, as follows:
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“The Court may at any stage of the proceedings, either of its own motion or on the application of either party, order any proceeding to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the fair trial of the suit, and for the purpose of determining in the existing suit the real question or questions in controversy between the parties, shall be so made. Every such order shall be made upon such terms as to costs or otherwise as shall seem just”. (The underlining is ours).
It seems to us that the whole purpose of the plaintiff’s application for adjournment at that stage of the proceedings was to enable the court, if possible, by seeing the plotting of the survey plan in Exhibit 1 on the survey plan in Exhibit 3, to determine once and for all one of the real questions, as shown by the pleadings, which are in controversy between the parties. In this connection, we recall that the main questions in controversy are whether the land sold and conveyed in Exhibit 1 by the 1st defendant to the 2nd defendant is part of the family land shown in the survey plan (Ex. 3), and also whether the 1st defendant who is alleged to be member of a section of the Uwhe family to which the plaintiff also belongs has the right or power to sell the portion in dispute.
It is certainly in the interest of justice that all these matters which had been fully pleaded by all the parties should be canvassed thoroughly before the court so as to enable the court, after hearing evidence, to come to a just conclusion on the respective claims of the parties. As had been aptly put by Buckley, L.J. in Beck v. Value Capital Ltd. (1976) 2 All ER 102 at page 109a, “where a trial Judge is not shown to have erred in principle, his exercise of a discretionary power should not be interfered with unless the appellate court is of the opinion that his conclusion is one that involves injustice, or to use the language of Lord Wright, the appellate court is clearly satisfied that the judge of first instance was wrong”.
Be that as it may, after giving the matter the most serious consideration, we have come to the conclusion that the learned trial judge, by refusing to grant the plaintiff the adjournment asked for in the particular circumstances of the case, has exercised the discretion, which he undoubtedly had in the matter, wrongly. We think he was also in error in denying the plaintiff the opportunity of amending the survey plan Exhibit 3 which certainly forms part of his pleadings in the proceedings.
The appeal is therefore allowed and the ruling of Ekeruche, J. in suit No. W/137/1973 delivered in the Warri High Court on 31st January, 1975, including his order as to costs, is hereby set aside. We further order that the case be sent back to the said High Court for retrial before another judge and that all the parties to the case shall be at liberty to amend their pleadings (including their survey plans) if they are so advised.
The plaintiff/appellant is awarded costs of this appeal assessed at N160.00 against each defendant/respondent.
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Counsel
Dr. J.O. Akpojaro…..For Appellant
AND
Mr. N.E. Akporiaye, for the 1st and 2nd Respondents & Dr. M. Odje, for the 3rd Respondent……For Respondent