A. O. Eghobamien V. Federal Mortgage Bank Of Nigeria (2002)

LAWGLOBAL HUB Lead Judgment Report

U. MOHAMMED, J.S.C.

This is an appeal from the decision of the Court of Appeal, Benin Division. In a unanimous decision, the Court of Appeal set aside the judgment of Edokpayi, J. of Edo High Court which was delivered in favour of the plaintiff, Mr. A. O. Eghobamien, against the Federal Mortgage Bank of Nigeria. The suit was originally filed before Obi, J., who was then a Judge of the High Court of Bendel State. The claim filed by the plaintiff is as follows:

“(a) A declaration that the plaintiff is the owner and entitled to the original document of all that property registered as No.3 at page 3 in volume 623 at the office at Benin which has been in possession of the defendant.

(b) An order for the defendant to surrender to the plaintiff forthwith the original document of title registered as No.3 at page 3 in volume 623 at Benin city.

(c) The sum of N500, 000.00 as general damages suffered by the plaintiff as a result of the failure and or refusal of the defendant to return the said document of title to the plaintiff despite repeated demands.

(d) An order for defendant to execute a deed of release in the lands registry, Benin city in favour of the plaintiff.”

Learned Justice Obi ordered for pleadings and they were filed and exchanged. Hearing was commenced before Obi, J. on 23rd July, 1990. The plaintiff called two witnesses and closed his case. The two witnesses were Mr. Joseph Aku Akinniraye, an official of Cooperative Bank, and the plaintiff who is the appellant, in this appeal. The defendant called one witness, one Mrs. Adefunke Omowunu Abiodun and closed its case. Counsel for the parties addressed the court and the learned trial Judge adjourned the case to 25th September, 1991 for the delivery of the judgment. Before the adjourned date, Delta State was created and Obi, J., was transferred to the newly created state. The learned Judge left for the Delta State before he could deliver the judgment. The trial was therefore abandoned by Obi, J.

On 21st October, 1991 the case was mentioned before Edokpayi, J. Subsequently several adjournments were made until on the 21st April, 1994 when the following proceedings were recorded:

“A. O. Eghobamien, Esq. (G. A. Ezomo, Esq. with him) appears for the plaintiff. Chief H. O. Ogbodu, Esq. appears for the defendant. B/515/89 in evidence by consent and the certified record of proceedings is admitted in evidence by consent of counsel and marked as exhibit 9. ”

On the same day learned counsel for the respective parties addressed the court. Edokpayi, J., reserved the judgment to 20th May, 1994. After delivering the judgment, the defendant, Federal Mortgage Bank of Nigeria, filed an appeal challenging the decision of Edokpayi, J. Mr. A. O. Eghobamien also filed a cross appeal. The Court of Appeal, (Coram Akpabio, Akintan and Nsofor, JJC.A.) allowed the appeal filed by the Federal Mortgage Bank and dismissed the cross appeal filed by Mr. A. O. Eghobamien. It is against that decision that the appellant has come before this court, armed with five grounds of appeal. Briefs were filed and exchanged. The appellant identified 5 issues for the determination of the appeal. The issues read as follows:

“1. Whether the Court of Appeal was right in pronouncing on the issues not canvassed before it.

2. Whether the amount of N5,000 awarded for detinue is adequate.
3. Whether in the circumstances the cost of N2,000.00 awarded against the appellant by the appellate court was not excessive.
4. Whether the action was based on breach of contract or detinue.
5. Having regard to the totality of the evidence before the lower courts, whether the appellant is not entitled to judgment.”

The respondent adopted the issues formulated above.

The appeal was heard on 21st January, 2002. When we were considering the merits and the submissions of counsel in their respective briefs, an issue concerning the validity of the trial conducted by Edokpayi, J., was raised. Since the issue was raised suo motu by the court we invited counsel to address us on the issue. We therefore wrote to the counsel indicating an anomaly in the proceedings at the High Court. It was pointed out that the proceedings for the full trial of the action were conducted by Obi, J., but the judgment was delivered by Edokpayi, J. The learned counsel representing both parties came and addressed us on the issue. Mr. A. O. Eghobamien, Jnr. learned counsel for the appellant, in this appeal, quite correctly, identified one single issue for the procedural anomaly we observed from the record of proceedings. The single issue reads as follows:-

“Whether consent of the parties may render evidence given in the previous judicial proceedings admissible in a case in which the conditions prescribed by section 34 of the Evidence Act do not exist.”