Joseph Agbahomovo & Ors Vs Apata Eduyegbe & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

S.U.ONU,J.S.C.

This appeal concerns the consequences of wrongful expurgation of documentary evidence by the trial court which decision the Court of Appeal set aside and the Supreme Courts views of the aftermath thereof on further appeal thereto.

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In the two consolidated suits No. HCO/17/82 and HCO/17x/82 in the defunct Bendel State High Court sitting in Oleh, the reliefs sought by the parties to the cross-actions were title to the land in dispute, forfeiture a customary tenancy, order for permission to redeem the said land, together with the consequential orders for recovery of possession as well as perpetual injunctions.

Pleadings having been ordered, duly filed and exchanged, the case went to trial before Akpiroroh, J. (as he then was) sitting at Oleh in the defunct Bendel State High Court. At the end of the trial, the learned trial Judge entered judgment substantially in favour of the plaintiffs/appellants.

Being dissatisfied with this decision, the defendants/respondents appealed to the Court of Appeal, Benin Division sitting at Benin City (hereinafter in this Judgment referred to as the court below). The court below after considering the written as well as oral submissions of the counsel for both parties, held, allowing the appeal thus:-

…………… Here, on 3 previous plans filed by the respondents they showed boundarymen that agreed with those shown on appellants plan. A 4th plan was then drawn and filed showing totally different boundary men . The appellants sought, by cross-examination and the tendering of those previous plans, to show the inconsistencies on the part of the respondents. Such evidence, if allowed, would only go to the weight to be attached to the evidence, of the 3rd respondent and their new boundarymen as to who as between these new boundarymen and those the appellants claimed to be boundary men, were indeed the boundarymen to the land in dispute. It is that opportunity the trial judge had denied the appellants when he expunged from the record the admissions so far given on the point by the 3rd respondent and disallowed further questioning on the point and later rejected in evidence the first of the previous three plans drawn by P.W.11. In my respectful view, what the trial judge did amounted to wrongful exclusion of evidence……………………. As frankly conceded by Chief Idigbe the proper order this Court ought to make in the circumstance is one of retrial of the consolidated suits………………………………………… The judgment of the court below given on 21/8 /86, including the order for costs, is set aside. I order that the consolidated suit Nos. HCO/17/82 and HCO/17x /82 be retried before another judge of the High Court of Bendel State.”

Aggrieved by the said decision of the court below, the appellants have now appealed to this court on two grounds.

The respondents supported the judgment of the court below only to the extent that it allowed the appeal and set aside the judgment and orders of the trial court, but are dissatisfied with the order sending the cases back to the High Court for retrial. Consequently they obtained leave of this court and filed a cross-appeal on two grounds.

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The parties subsequently exchanged brief of argument in accordance with the rules of this court- with this court granting an application for enlargement of time within which to file and serve the appellants brief dated 17th February, 1992 but filed on 23rd February, 1998 and regularised by being filed and served on 3rd March, 1998 as well as enlarging the time within which to file and serve the respondents brief of argument in the Cross-Appeal as well as the Reply to the respondents brief dated 24th March, 1993 and regularising and/or deeming same as properly filed and served on 3rd March, 1998 respectively.

The two issues which in the appellants opinion arise for our determination are:-

Whether the Court of Appeal was right in holding that it amounted to wrongful exclusion of evidence and lack of fair hearing occasioning miscarriage of justice for the learned trial judge to have refused to admit, and indeed, to have expunged from the record all evidence relating to three survey plans which had been duly amended and abandoned beyond recall by the appellants.

Whether the Court of Appeal gave a fair hearing and/or hearing at all to the appellants whose case in this appeal was considered on the survey plans aforesaid.