Isaac Omoregbe V Daniel Pendor Lawani (1980)

LawGlobal-Hub Judgment Report

IDIGBE, J.S.C. (Delivering the Leading Judgment)

On the conclusion of the testimony of the plaintiff (the respondent herein) and those of his two witnesses in support of his claims for a declaration of title to land, damages for trespass thereon and an order of injunction in relation to the said land, – the defendant (the appellant herein) having refrained from calling any evidence whatsoever in rebuttal – the High Court of Midwestern (now Bendel) State (Ekeruche, J.), on Tuesday, the 17th day of August, 1976, refused to consider and/or assess the evidence before it; and without any prior argument on the issue for and on behalf of the parties to these proceedings entered an order of non-suit against the respondent and, in addition, ordered that the claims be heard de novo before another Judge.

The plaintiff’s (i.e. the respondent herein) appeal to the Federal Court of Appeal (hereinafter called simply “the Court of Appeal”) was on the basis that the learned trial Judge erred in law in refusing to consider and assess the unchallenged evidence in support of his case, and that, in any event, it was no longer within his competence – he having entered a non-suit – to further order a transfer of the claims to another Judge for re-hearing. The Court of Appeal, in the main, upheld the contentions of the plaintiff, and hence the present appeal.

My Lords, for the purpose of resolving the question of law upon which this appeal will turn I need only give a brief account of the facts which gave rise to it. Following an order of the trial court of the 21st day of February, 1972, the parties to these proceedings filed and exchanged  their pleadings.

At the trial the respondent and his witnesses testified in support of the allegations in his statement of claim. The sum of the evidence in support of the plaintiff’s case is as follows: In April 1964 the plaintiff on his application was granted, by the Ebvogida plot Allotment Committee (in Benin City, Ward 43B), a building Plot (the land in dispute) measuring 300 feet by 300 feet; his witness, Egusaki Ogida (P.W. 2) testified by way of confirmation of the grant that he and one John Ogida (P.W.3) – the official messenger and “pointer” (i.e. selector of parcels of land for allocation) of the said Allotment Committee, later, on the instructions of the committee, went and identified the land in dispute to the plaintiff as being the particular parcel which had been granted to him by the said Allotment Committee.

The committee later recommended for approval of the Oba of Benin the said grant and by Exhibit (1), in these proceedings, the Oba of Benin approved the said grant on 29th July, 1964. P.W. 2 confirmed that at a  later date the defendant applied to, and obtained a grant of a parcel of building plot from, the said Committee, and that on the instructions of the said Committee he (P.W. 2) identified to the defendant the parcel of land measuring fifty feet by one hundred feet. It is entirely different from the land now in dispute. According to this witness the defendant later altered the measurements of the plot entered by the Committee in the document approving the grant to him to read five hundred feet by seven hundred feet.

Consequently, following criminal proceedings in Suit B/8c 72 which the police authorities brought against the defendant (as shown in Exhibit 6, in these proceedings), the latter was convicted for the offences of forgery and altering.

It is necessary at this stage to point out that when on the 2nd day of March, 1976, hearing began in this case, the plaintiff gave evidence-in-chief and put in evidence his deed of conveyance in respect of the land in dispute to which was attached a survey plan of the land, Exhibit (1) in these proceedings. The defendant although absent was represented by his counsel Mr. Evbuomwan who later duly cross-examined the plaintiff; further hearing in these proceedings was adjourned. When, however, hearing resumed on the 22nd June, 1976 the following endorsements appeared on the record of proceedings:

“Plaintiff present, Aghimien for him; defendant absent, Evbuowan for him.
NOTE: Mr. Evbuonwan says that at the initial stage of the hearing of this case, he indicated his client was serving prison sentence in Kirikiri prison. Says he was only able to see him on 6th June, 1976, for further instructions.

Says he has been appearing on the initial instructions his client gave him before his client started serving sentence. Says his client has instructed him to inform the court that he wants to fight the case on the merit and so seeks an adjournment sine die so that he can fight his case when he is released. In the alternative his client has instructed him to withdraw from the defence if an adjournment is not granted. Says he believes his client is serving a five year term.

Court: The request for adjournment is refused. Mr. Evbuomwan in accordance with his other instructions he says his client gave him is discharged from further appearing in the case

(Sgd.) E. A. Ekeruche
Judge…………………..”
(Underlining supplied by me)

Having refused the application for adjournment the learned trial Judge proceeded to receive further evidence in the case (i.e. further evidence from the plaintiff who on being recalled took the opportunity to put in evidence Exhibit 5, in these proceedings (i.e. a survey plan showing the land in dispute; and also the evidence of P.W. 2 and P.W. 3). Thereafter, the plaintiff closed his case and the learned trial Judge having reserved judgment non-suited the plaintiff on the 17th August, 1976, as earlier on stated and, in addition, ordered that the claims be heard de novo before another Judge.

The respondent (i.e. plaintiff) appealed to the Court of Appeal from the judgment of the learned trial Judge, and in particular he complained of the underlined portions hereunder appearing and which read:-