Raymond Eze V. Betram Ene (2006)

LawGlobal-Hub Lead Judgment Report

JAMES OGENYI OGEBE, J.C.A.

The appellant sued the defendants before Enugu High Court claiming a declaration of title to the disputed piece of land, damages for trespass and injunction. The suit was filed as far back as June 1977. Pleadings were exchanged by the parties and the matter went for trial before 3 distinct judges who could not hear the matter to the end. Eventually the case was heard by P.K. Nwokedi CJ (as he then was).

The facts of the case are as briefly as follows:

The Plaintiff brought the suit for himself and as representing his family called Umuonuigbo Eze. The Defendants also were sued for themselves and as representing their family called “Umunevoali. The parties are from Idedu quarter of Amokwe in Udi Local government Area of Enugu State.

The claims of the Plaintiff are:-

“1. A declaration that the land in dispute belonged to them and that they were entitled to the customary right of occupancy over same.

2. The sum of N1,000.00 (One Thousand Naira) being damages for trespass.
3. Perpetual injunction against the Defendants, their servants and agents.”

The parties relied on their survey plans wherein they called the disputed land “Oku Onuigbo Eze” and “Ishi Owelle Ununevoali” respectively.

The Plaintiff on record testified as PW1 and was recalled to lay foundation in respect of proceedings which previously had proceeded before Hon. Justice Obayi. PW2, a Registrar of the High Court testified and attempted to tender the record books of the former court but the court ordered the Plaintiff to apply for and tender certified copies of the relevant proceedings within seven days.

On the 15th day of February 1991, the 2nd Defendant on record was reported dead and his name was struck out leaving the 1st Defendant to continue with the matter. The certified records of proceedings in suit No.E/113/77 were produced, tendered and marked Exhibit 1 by consent of the parties. The next and last witness of the Plaintiff was PW3, his surveyor who testified and tendered the plan which is Exhibit 2. The entire case of the Plaintiff was therefore based on the testimonies of the PW1, PW2, PW3 and the witnesses who had testified in a previous proceeding tendered and marked Exhibit 1.

The 1st Defendant testified as DW1. He called DW2 (Simon Eneh) who confirmed part of his testimony, DW3 C.P.C. Nwosu his surveyor who tendered his plan as Exhibit 4 and finally the DW5 Lawrence Ezeani who came and testified as a boundary witness.

In the course of judgment the trial court held that inspite of the fact that exhibit I was tendered without objection, it remained inadmissible because the conditions laid down in section 34 (1) of the Evidence Act were not fulfilled. However, the court proceeded to consider and evaluate their evidence in the judgment a bundantia cautela and came to the conclusion that the Plaintiff failed to discharge the onus of proof imposed upon him by law irrespective of the weaknesses of the Defendant’s case. The court in consequence thereof dismissed the entire claim with N1,000.00 (one thousand naira) costs in favour of the Defendant.

Dissatisfied with the judgment the appellant appealed to this court on two grounds of appeal. The learned counsel for the appellant filed a brief and formulated 4 issues for determination out of the two grounds of appeal.

In the course of argument of the appeal when the court pointed out to the learned counsel that he could not formulate more issues than the number of the grounds of appeal, he abandoned issues 3 and 4 and the arguments thereon and they are hereby struck out.

The two remaining issues are as follows: