Chief Maduwuba Orodoegbulam V. Nze Donatus Orodoegbulam (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment)

The Respondent herein, on 21st March, 1994 filed Suit No. HOW/104/94 claiming exclusive ownership of the property known as and called No. 62/63 Royce Road, Owerri, now renumbered as No. 57/63 Royce Road, Owerri. He also claimed accounts for rents and an order of injunction. Pleadings were exchanged and parties testified in response to the facts pleaded. The Appellant herein was the defendant in that case, while the Respondent in this appeal was the plaintiff.

At the end of the hearing and after considering the submission of both counsel, the trial court found and held that the land in dispute was jointly owned by both the Appellant and Respondent herein. That judgment which can be found on pages 42 – 45 of the record was delivered on the 26th day of September, 2006 by the then Chief Judge of Imo State, Hon. Justice P. C. Onumajulu. That judgment is subsisting as there is no evidence that any of the parties had appealed against the said decision.

Based on the judgment in suit No. HOW/104/94 alluded to above, the Respondent in conjunction with family members made several efforts to partition the land since the Appellant and Respondent herein could not jointly manage the property without acrimony and rancour but it proved abortive. Consequent upon this inability to partition the property, the Respondent then approached the High Court in Suit No. HOW/143/2007 (the suit giving birth to the instant appeal) for an order partitioning the said property between the parties herein based on the decision of the court in Suit No HOW/104/94.

Upon receipt of the Statement of Claim, the Appellant (as defendant) filed his statement of defence and counter claim and included facts in a bid to relitigate the facts and issues already determined by the lower court in Suit No HOW/104/94 which has not been appealed against.

At the hearing of the matter, the learned trial judge, after PW1 had testified and cross-examined, and the Appellant as DW1 started to give evidence, told both parties and their counsel that the matter was straight forward and that since there was no appeal against the findings and decision of the High Court in Suit No HOW/104/94 that ownership of the property resided on both the Appellant and the Respondent, he would discontinue and discountenance oral evidence already led and determine the matter on the pleadings of the parties. He then ordered both counsel to put in their written addresses. It is on record that both counsels were in court on that date. However, only the learned counsel for the Respondent herein, filed a written address. Counsel for the Appellant failed and/or neglected to file his written address.

The trial court, after a consideration of the pleadings of the parties and the judgment of the learned trial Chief Judge in Suit No. HOW/104/94 found for the Respondent and ordered partition of the land adjudged by the court as jointly owned by the parties to this appeal. Dissatisfied with the judgment of the court below, given on 3rd December, 2008, the Appellant filed Notice of Appeal on 11th December, 2008 which said notice has three grounds of appeal.

From the three grounds, the Appellant has distilled two issues for determination which issues are contained on page three of the Appellant’s brief of argument adopted by learned counsel for the Appellant Chief I. A. Onyeama on 29th January 2013 when this appeal was heard. The issues are as follows:

“a. Was there a hearing in this case to which the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria can apply; and if so was the hearing in this case fair? (Grounds 2 and 3).

b. Based on the pleadings was the trial court right to have given judgment to the Plaintiff/Respondent in this case and is Defendant not entitled to judgment.”

In the brief settled by Ezeohiri Fred Njemanze Esq., Counsel for the Respondent, one issue is formulated which states:

“Whether the lower court was right in the procedure adopted to arrive at his judgment in this matter.”

After reading the pleadings and the judgment of the lower court vis-a -vis the grounds contained in the notice of appeal, it appears to me that the lone issue formulated by the Respondent which to my mind, encapsulates the two issues distilled by the appellant is more germane and apt for the determination of this appeal. I shall therefore determine this appeal based on the said single issue.

It is the submission of the Appellant through his counsel that when the pleadings in the case were filed and exchanged and issues joined on the pleadings and the PW1 having given evidence, there is a hearing to which the test of fairness under the constitution may be applied, relying on the case of DEDUWA v. OKORODUDU (1976) 9-10 SC at 353-354. According to learned counsel, the learned trial judge did not give the Appellant enough time to cross examine the Respondent and that there could not have been any re-examination when there was no full cross examination. That it was the learned trial judge who suo motu stopped the DW1 from continuing with his evidence and decided to determine the case on the pleadings.