Leonard Eronini & Ors. V Francis Iheuko (1989)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C. 

The respondent was the plaintiff suing in a representative capacity and the appellants were the defendants sued in a representative capacity in suit No. HOW/75/75 in the High Court East Central State of Nigeria sitting at Owerri on the 12th day of May, 1975. In that suit, the plaintiff claimed:

“(a) declaration of title to all those parts (sic) or pieces of land in Ebom Eburi known as and called Abo-Nkwu, Uhu Ogwugwu, Ukwu-Uzi and Ikpa respectively. The annual value of the lands is estimated at N5.00

(b) N400.00 damages for trespass:

(c) perpetual injunction restraining the defendants their agents, and servants from further trespass to the land in dispute.”

The matter came up before Ikpeazu, J. on the 9th of June, 1975 and the writ being served and parties present, he ordered pleadings to be filed and served. This was before the East Central State was split into two smaller states in 1976, named Anambra State and Imo State. On the creation of the two states, the High Court at Owerri became part of the Imo State High Court.

After obtaining orders for enlargement of time to file statement of claim, the statement was filed on the 13th August, 1976. The defendants filed their statement of defence on the 14th day of October, 1976. The pleadings were later amended. An amended statement of claim was filed on 2nd March, 1982 and an amended statement of defence was filed on 26th March, 1982. On the 13th day of April, 1983, the case was listed for hearing before Wachukwu. J. sitting at Owerri. Parties and their counsel were present and the court was prepared to hear the case.

Mr. Nsofor then called the plaintiff, Francis Ihueko to testify. He went into the witness box, was sworn on Bible and began to testify. He was not a very smooth and intelligent witness. He exasperated the learned trial Judge who could not hide his feelings. In the course of his testimony, he said, inter alia. (as recorded in the record of proceedings)

“The lands in dispute belong to Umu Iheuko. We are owners because our father farmed the land and on his death the lands descended to us. The first of my ancestors to brush the virgin forest was Iheuko my late father. I now say that the first of my ancestors to brush the virgin forest was Nwulu. Nwulu begat Iheuko Ugwushie. Okwarauzu was the father of Nwulu. Then Duru Ojiakpi was the father of Okwarauzo.”

There the testimony stopped and plaintiff’s counsel applied to discontinue. The record then reads:

“At this stage Mr. Nsofor applies to withdraw the case. Mr. Iketuonye does not oppose but asks that the case be dismissed.

Court: At this stage in which Mr. Nsofor has applied to withdraw the suit was when the plaintiff was still testifying in chief. In the circumstances I think the proper order would be to strike out the suit with costs. Case is struck out with N100.00 costs to the defendants.”

The defendants were not satisfied with the decision so they appealed to the Court of Appeal. The relief sought from the Court of Appeal set out in the notice of appeal was “set aside the order of the court below and dismiss the claim.”

The Court of Appeal dismissed the appeal and affirmed the order of the High Court striking out the suit. Akpata, JCA. delivering the lead judgment (Ogundare and Katsina-Alu, JJCA. concurring) after citing Sonekan v. Smith (1967) 1 All NLR. 329 and Ifi Izieme and Others v. Ijeoma Ndokwu and Others (1976) 1 All NLR (Pt.1) 189 at 194 to 195 (1976) 3 Sc. 9 said: