Raymond Eze V. Betram Ene & Anor (2017)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

The appellant as plaintiff sued the respondents as defendants on a writ of summons accompanied by statement of claim.

Paragraph 13 of the Statement of Claim states the plaintiff’s claim. It reads:

13. WHEREOF the plaintiff claims against the defendants jointly and severally as follows:-

(a) Declaration that the plaintiff is entitled to the Customary Right of Occupancy to the land in Dispute.

(b) N1,000.00 (One thousand naira) damages for trespass.

(c) Perpetual injunction restraining the defendants, their servants, agents and privies from further entering the land without the consent of the plaintiff.

The plaintiff relied on their statement of claim filed on 30th May, 1983.

Trial commenced at one time or the other before the judges who were unable to hear the case to the end. Finally trial commenced on 4th February, 1991 before the Hon. Justice P.K. Nwokedi (CJ Anambra State as he then was). Three witnesses were called by the plaintiff in proof of their case.

On 15th February, 1991, the defendants opened their defence, relying on their statement of

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defence, filed on 9th September, 1983. The defendants called four witnesses and on 18th February, 1991 after DW4 concluded his evidence, filed an application to amend their statement of defence. This application was opposed by the plaintiff. The learned Chief Judge heard argument and ruled as follows;

“Court- Objection is overruled. I shall give reasons in my judgment. Amendments are hereby granted as prayed.”

Four documents were admitted in evidence as exhibits. They are;

1. Exhibit 1- Certified copy of records of proceedings in suit No. E/113/77
2. Exhibit 2- Plan No. MEC/12/18/78
3. Exhibit 3- Judgment in Criminal case
4. Exhibit 4- Plan No. MLS/2311/83.

The learned Chief Judge delivered judgment on 21st March, 1991 dismissing the plaintiff’s claims. The plaintiff filed an appeal. It was heard by the Enugu Division of the Court of Appeal. That Court dismissed the appeal. On a further and final appeal to this Court and in accordance with Rules of Court, both sides filed briefs of argument. The appellant’s brief was filed on 17th May, 2012 but was deemed duly filed and served on 1st November 2016. The respondents’ brief was filed on 3rd

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November, 2016. Learned counsel for the appellant’s Mr. T. Maduka formulated two issues from his amended notice of Appeal. They are:

ISSUE 1

Whether the learned Justices of the Court of Appeal were right in law in upholding the decision of the High Court granting a fundamental amendment to the statement of Defence after the close of the cases for the parties and whether same resulted in a denial of fair hearing to the appellant.

ISSUE 2

Whether the learned Justices of the Court of Appeal were right in law in affirming the trial judge’s rejection of Exhibit 1.

Learned counsel for the respondents Mr. A. Ejesieme also formulated two issues for determination of this appeal; They read:

ISSUE 1

Whether the Court below was right in affirming the decision of the trial Court which allowed the amendment sought by the respondents.

ISSUE 2

Whether the Court below was right in affirming the decision of the trial Court in the rejection of Exhibit 1.

Both sets of issues ask the same question, so the issues formulated by the appellant would be considered in resolving this appeal.

At the hearing of the appeal on 13 December, both

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sides adopted their briefs. Learned counsel for the appellant urged us to allow the appeal, while learned counsel for the respondents urged the opposite.

ISSUE 1

Whether the learned Justice of the Court of Appeal were right in law in upholding the decision of the High Court granting a fundamental amendment to the statement of defence after the close of the cases for the parties; and whether same resulted in a denial of fair hearing to the appellant

Learned counsel for the appellant observed that the respondents’ case had always been that their land “Ishi Owelle Umunevoali” is situate within a larger piece of land called “Okoto” but by the amendment, their case changed in that “Ishi Owelle Umunevoali” now borders the Idedu Amokwe section of “Okoto” land. He further observed that by the said amendment the respondents substituted their original survey plan No. NLS/AN/234/83 with a new survey plan No. NLS/AN/2311/83, thereby denying the appellant the right to cross-examine the respondents since they had closed their case. Reliance was placed on Imonikhe v. AG Bendel State (1992) 7 SCNJ P.197.

He submitted that granting the amendment at such a belated

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stage of the proceeding amounted to a denial of fair hearing. Reference was made to C.I. Adetutu v. W.O Aderohunmu & Ors (1984) 6 SC p. 92.

He urged this Court to resolve this issue in favour of the appellant.

Learned counsel for the respondents observed that the amendment was granted solely to bring the evidence before the Court in line with the pleadings. He further observed that he closed the respondents’ case with the grant of the amendment as no further evidence was called. He argued that if the appellant felt that he was denied a fair hearing he could have made application to effect consequential amendments to his pleadings and ask for an adjournment to recall the witness for further cross-examination. Reliance was placed on Emegokwe v. Okadigbo (1973) 1 ALL NLR (Pt.1) P. 379; Obijuau v. Ozims (1985) 2 NWLR (Pt. 6) P. 167.

He submitted that the appellant was not denied fair hearing. He urged this Court to resolve the issue against the appellant and in favour of the respondents.

Order 8 Rule 1 of the High Court (Civil Procedure Rules) of Anambra State provides for amendment of pleadings for the purpose of determining the real question(s) in

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controversy between the parties.

A party’s case is in his pleading and his case is proved by evidence. A party is thus bound by his pleadings, and so evidence which is contrary to his pleading go to no issue. See Emegokwe v. Okadigbo (1973) 4 SC P.113.

The statement of claim and statement of defence are thus very important process in all proceeding. Usually there are two stages in proceedings when a party can apply to amend his pleading and in each of the stages different considerations apply.

Before trial an application to amend or add to particulars would be granted if made a reasonable time before trial but would not be allowed if the amendment would introduce a new cause of action. Before the close of evidence and after the close of evidence amendments would be allowed if evidence on it is already on record. An amendment would be allowed to make pleadings fall in line with evidence already on record. The reasoning being that the amendment should be allowed so that the Court would be at liberty to use evidence already on record to resolve the real issue in dispute.

Applications for amendment of pleadings would not be allowed where if granted it would

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entail injustice to the other party, where the applicant is acting in bad faith or where the applicant has done some injury by his blunder which cannot be compensated by costs. See Ojah & Ors v Ogboni & Ors (1976) 10 NSCC P.244.

In view of all that I have been saying the Courts would readily allow an applicant to amend a defect in his pleading rather than give judgment in ignorance of facts which ought to be known before rights are finally decided.

At the close of re-examination of the defendants final witness, DW4 on 18 February, 1991, learned counsel for the defendants informed the Court that he had a motion to amend the statement of defence. Hearing of the application was fixed for 20 February, 1991. The learned CJ heard argument, overruled the objection and said that reasons would be given in the judgment.

Now, what were the amendments

Amendments were made to paragraphs 4, 5 and 7 of the statement of defence.

In the Original statement of defence paragraphs 4, 5 and 7 runs as follows;

“4. The defendants deny paragraph 6 of the statement of claim. The land in dispute is situate within a larger piece of land called “OKOTO” which

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has boundary with Udi Obinagu and Umuabi. This Okoto land is “Agu” land (that is farm land in the out-skirt of the town) and each of the three towns referred to in this paragraph has its own Okoto. The land in dispute is situate in Idedu Amokwe section of Okoto land.

5. The defendants deny paragraph 7 of the statement of claim. The land in dispute with its boundaries and features are as shown in Plan No. NLS/AN/234/83 filed with this defence.
6. Standing on the Enugu/Onitsha Road and facing the Wall, all the land on the right including the land in dispute belong to the defendants while the land on the left hand side belong to the Plaintiff. The defendants call their land at “OKOTO ISHI OWELE UMUNEUO ALI” of which the land in dispute is a part. Paragraph 8 of the statement of claim is denied.”

With the amendments to the statement of defence granted, paragraph 4, 5 and 7 of the statement of defence now reads:

“4. The defendants deny paragraph 6 of the statement of claim. The land in dispute borders a larger piece of land called “OKOTO” which has boundary with Udi Obinagu and Umuabi. This Okoto land is “Agu” land (that is farm land in the

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out-skirt of the town) and each of the three towns referred to in this paragraph has its own Okoto. The land in dispute is situate in Idedu Amokwe section of Okoto land.

5. The defendants deny paragraph 7 of the statement of claim. The land in dispute with its boundaries and features are as shown in Plan No. NLS/AN2311/83 filed with this defence.
6. Standing on the Enugu/Onitsha Road and facing the Wall, all the land on the right including the land in dispute belong to the defendants while the land on the left hand side belong to the Plaintiff. The defendants call their land “ISHI OWELE UMUNEVO ALI” of which the land in dispute is a part. Paragraph 8 of the statement of claim is denied.”

What did the Court of Appeal have to say on these amendments. The Court said:

“… The amendment granted by the trial Court did not require further evidence or recall of witness. It was merely to bring the evidence already given in line with the pleadings.”

Was the Court of Appeal correct

After the defendants’ witnesses led evidence on the correct identity of the land, their counsel applied to amend paragraph 7 of the statement of defence so that Plan

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NLS/AN2311/83 is admitted in evidence as an exhibit. It was admitted as Exhibit 4. Thereafter learned counsel for the plaintiff/appellants, Mr. Kalu cross-examined the defence witness (See page 46 of the Record of Appeal).

Question- Was there a boundary-wall between Umuanagu and the defendants

Answer- No

Question- What was the land called

Answer- Ishi Owelle Umuenovo ali- part of which is in dispute.

Question- Were there houses in the area in dispute at time of survey

Answer- No

Question- Were you shown the land of Eze Nwachiwe

Answer- No

Question- And Ene Nwene

Answer- No

Question- Did you see the plaintiffs’ plan before you made your own

Answer- No

Re-examination- Nil

Court to Witness- The area in dispute in Exhibit 1 is not the same as the area in Exhibit 4 would that be correct

Answer- It is so my Lord.

The amendments to the defendant’s pleading in paragraph 4, 5 and 7 became necessary after the defendants witness particularly DW3 (the Surveyor) by their testimony gave a clearer picture of the land in dispute. The defendants’ plan Exhibit 4 shows that the land in dispute

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is called “ISHI OWELLE UMUENOVO ALI” by the defendant and OKOTO land is also separately owned. The amendment was to bring the pleadings in line with the evidence already given and so would be of tremendous assistance for the purpose of resolving the real dispute between the parties. Furthermore, the appellants cannot complain of being denied fair hearing since their learned counsel was never denied the right to cross-examine the defendants’ witnesses and he did cross-examine them. He cross-examined DW3 on these amendments (See page 46 of the Record of Appeal).

Finally the learned CJ after hearing arguments for and against the application to amend the defendants’ pleadings said: “Objection Overruled.”

That means that the application to amend the defendants’ pleadings is granted. If learned counsel for the plaintiff felt that by the amendment he was denied fair hearing he ought to have made an application to effect consequential amendments to his pleadings and ask for a date to recall witness(es) for cross-examination on the amendment granted.

The amendments granted by the learned Chief Judge of Anambra State did not require further evidence or

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recall of witness. Once again the amendments were granted to bring evidence already given in line with pleadings. The Court of Appeal was correct.

ISSUE 2

Whether the learned Justices of the Court of Appeal were right in law in affirming the trial Judge’s rejection of Exhibit 1.

Exhibit 1 is a certified true copy of records of proceedings in suit No. E/113/77. On 5 February, 1991, learned counsel for the plaintiff relying on Section 34(1) of the Evidence Act, now Section 46(1) of the Evidence Act 2011, applied to tender a certified copy of records of proceedings in Suit No. E/113/77. Suit No. E/113/77 and this suit are the same. Suit No. E/113/77 was never concluded. It was learned counsel for the plaintiffs’ desire to reply on the witness testimony in Suit No. E/113/77 in this suit since according to him he no longer could trace the witness.

The learned Chief Judge (trial Judge) admitted certified true copy of proceedings in Suit No. E/113/77 as Exhibit 1. However in his lordships judgment he rejected Exhibit 1. The Court of Appeal agreed with the trial High Court.

Learned counsel for the appellant observed that witnesses to wit. Mrs. Nwadiuko

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Aneke, Mr. John Onyia, Mr. Okoli Ezeonyia who gave evidence in Suit No. E/113/77 were either dead or could not be traced, contending that their testimony in Suit No. E/113/77 ought to have been admitted in this suit. Reliance was placed on C. Akunne v. M. Ekwuno & Ors (1952) 14 WACA P. 59; A. Alade v. S. Olukade (1976) 6 SC P.183

Concluding, he submitted that the Court of Appeal was in error affirming the rejection of Exhibit 1 by the trial Court.

Opposing, learned counsel for the respondents observed that after PW1 gave evidence it was clear that Emmanuel Eze, Okoli Ezeonyia, and John Onyia were available to give evidence as where they reside was known. He further observed that PW1 who tendered Exhibit 1 is a total stranger and had no nexus with Exhibit 1.

Concluding, he submitted that the learned Chief Judge was right not to ascribe any probative value to Exhibit 1 and the Court of Appeal was right to affirm the trial Court’s decision.

Section 34 (1) of the Evidence Act Cap E14 Laws of the Federation of Nigeria, 2004, (now repealed) is now Section 46(1) of the Evidence Act 2011. The Section lays down the condition under which secondary

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evidence of the testimony of a witness given in a former proceeding, be it civil or criminal is admissible in a subsequent proceedings, or in a later stage of the same proceedings. This is premised on the position of the law that the best evidence available must always be produced and used by the Courts so that the rights of litigants are correctly decided. The power under Section 46 (1) must at all times be exercised with great caution. For instance death or incapability to give evidence must be proved strictly and the onus of proving that a witness is dead or cannot be found is on the party who wishes to rely on the evidence.

The following conditions must be fulfilled before a previous testimony can be admitted in evidence. Once any of them is absent, the evidence to be relied on would be inadmissible

1. The evidence must have been given in a judicial proceedings.
2. The first proceedings must be between the same parties as the second proceeding, and the identity of the parties in the two proceedings must be substantial and not nominal.
3. The party against whom the testimony is tendered must have had the opportunity of cross-examining the

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witness when his testimony was taken;

4. The issues in both proceedings must be the same or substantially the same.
5. The witness must be incapable of coming to Court in the subsequent proceeding on account of death, or incapability of giving evidence or prevented from coming to Court by the adverse party, or bringing him to Court would entail huge expense or unreasonable amount of delay. See Ikenye & Anor v. Ofune & Ors (1985) 16 NSCC (PT.1) P. 379.

Agreeing with the trial Court, that the Court of Appeal was right in affirming the decision rejecting Exhibit 1, the Court of Appeal said;

“Where Exhibit 1 was tendered by the appellant with the consent of the respondent no attempt whatsoever was made to fulfill the conditions prescribed by this Section of the Evidence Act as a foundation for its admissibility.

The trial Chief Judge was right in holding that the document was inadmissible. To do that he did not require to recall the parties to address him as this was purely a matter of law which he was competent to pronounce on. The learned Chief Judge out of abundant caution took a look at Exhibit 1, evaluated it and came to the

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conclusion that it did not assist the appellant prove his claim…”

In a bid to find out if the witnesses that gave evidence in suit No. E/113/77- Exhibit 1 were available and able to attend Court to give evidence, PW1 was recalled. His cross-examination is on page 38 of the Record of Appeal. It runs as follows:

Question- Do you know where Emmanuel Eze lives

Answer- Yes

Question- Okoli Ezeonyia is a wine tapper

Answer- He is an artist. he does tap palm-wine. He is a wood carver and makes hoes.

Question- He is still carrying on with the above activities

Answer- Yes as much as he can.

Question- If you get him a vehicle he can travel to Enugu.

Answer- Yes

Question- Did you know John Onyia left for the North

Answer- No

Question- He came home last Christmas

Answer- Yes I saw him

Question- His relations know where he is in the North

Answer- Yes.

PW1 gave evidence to justify admitting the evidence of witnesses in Exhibit 1 in this proceedings. He made a poor attempt.

John Onyia according to him traveled to the North of the country and came home for Christmas. His relations and

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friends know where he is. Under cross-examination it is clear that no attempt was made to get him to come to Court.

Emmanuel Eze was absent from Court. The witness said he knows where he lives.

The third witness is Okoli Ezeonyia who alleged to be advanced in age and so could not attend Court but is still able to carry on his trade as a palm wine tapper and wood carver. He admitted that if a car is provided he would be brought to Court.

The death of Nwachuke Aneke was not strictly proved.

I am satisfied that the first to third witnesses are able to come to Court and so do not come under Section 46 (1) of the Evidence Act, neither was sufficient evidence laid for the admissibility of their evidence. Despite the fact that the trial judge rejected Exhibit 1, his lordship still relied on it and found it worthless.

Once again both Courts were correct rejecting Exhibit 1.

Finally, I must observe that this Court is slow to upset concurrent findings of fact of the trial Court and the Court of Appeal but would be quick to upset such findings if found to be perverse, or cannot be supported from the evidence led, and accepted by the Court, or

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if there was miscarriage of justice or violation of some principle or law or procedure. See Ilodigwe v. State (2012) 5-7 SC (Pt. II) P. 143.

The findings of facts by the trial Court is that the defendant is entitled to the Customary Right of occupancy of land in dispute. A fact affirmed by the Court of Appeal. By no stretch or imagination has learned counsel for the appellant been able to show that the finding is perverse, or cannot be supported from the evidence led or that there was miscarriage of justice or violation of some principle or law or procedure. Concurrent findings of fact are in the circumstances correct.

In the end, there is no merit in this appeal.

Appeal dismissed.

SC.295/2006