Forcados Ovo Obodo V. Stafford Olomu & Anor. (1987)
LawGlobal-Hub Lead Judgment Report
BELGORE, J.S.C.
After hearing all the evidence by the parties in the trial Court of Warri in the High court of Bendel State, Eluaka, J., without being addressed by the counsel to the parties, wrote as follows:-
“Court: Parties will send their address (sic) to me in writing;
Order: Adjourned 2nd August 1983 for judgment.
(Sgd.) M. C. Eluaka
Judge
1/7/83”
The judgment was delivered on 14th September,1983 within three months of the conclusion of evidence at the trial. Learned counsel for the defendants, the respondents before Court of Appeal and also before this Court, filed in the trial Court on an unknown date what is headed a “WRITTEN ADDRESS SUBMITTED BY COUNSEL IN SUPPORT OF DEFENDANTS’ CASE.” This document was not served on the Plaintiff/Appellant or on his counsel. As it is undated one would only know that it was filed before judgment was written as learned trial Judge seemed to rely heavily on it. The appellant filed no address in Court. The Trial Judge reviewed the evidence before him and then got to his findings on the evidence by saying:
“When the case was concluded, parties were asked to send their written address to me; only counsel for the defendant sent a written address. The counsel referred to the claim. He referred to the witnesses called for the plaintiff and remarked that Mr. M.N. Chukwurah was the same surveyor who surveyed the land for the 1st Defendant and also for the Plaintiff’s piece of land. This was admitted as Exhibit B … etc.”
Learned trial Judge dwelt at great length on the written address by the defendants and in the absence of a written address by the Plaintiff he relied heavily on what the defendants’ written address had submitted on the facts and law governing the case. Six pages of the judgment reviewed the evidence, four pages dealt with findings based on the address submitted to Court by the defendants’ counsel. He finally held as follows:
“I think I have carefully considered the evidence led in this case and I have also gone through the submissions by counsel for the defendants. The facts of the case have (sic) been well summarized by him and I am in agreement with points of law raised therein. It is unfortunate that the Plaintiff have (sic) not shown evidence that he was in possession of this area in dispute except attempted possession which was immediately disturbed which gave rise to this action. It is trite law that in an action for trespass, the plaintiff must show that he is in possession and his possession was disturbed. If he is not in possession no action in trespass will lie. Also there has not been evidence of ownership of the land because according to plaintiff when he made an agreement for a sale of land this agreement could not be registered because by then the Land Use Decree has set in so the persons who gave the land to him cannot be said to own the land in view of Section I of Land Use Act. It will not be possible for the plaintiff and the people who gave the land to him to now assume ownership of the land in dispute.”
The plaintiff appealed to Court of Appeal and among the many grounds of appeal was ground 4 which reads as follows:-
“The Learned Trial Judge erred in law when he proceeded to give judgment solely on the written address sent to him by the Defence Counsel praying the Court to dismiss the Plaintiffs Claim without giving the Appellant or his Counsel opportunity of a reply.
PARTICULARS OF ERRORS
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