Staff Olomu V. Daniel Garan (2000)
LawGlobal-Hub Lead Judgment Report
BA’ABA, J.C.A.
This is an appeal against the judgment of the Delta State High Court, sitting at Effurun, presided over by Hon. Justice Omo-Agege, Chief Judge. By writ of summons dated 22/4/86, the plaintiff who is the respondent in this appeal, claimed against the defendant who is the appellant, as follows:-
(a) The sum of N20,000.00 being damages for acts of trespass (which are still continuing) committed by the defendant in that he, the defendant, wrongfully broke and entered upon the plaintiff’s land situated at Ekpan (Bendel State of Nigeria) within the jurisdiction of this Honourable Court during the last six years.
(b) A perpetual injunction to restrain the defendant, his servants, agents and/or privies from committing and/or continuing the afore-said acts of trespass.
A Survey plan of the land in question may be filed later. The defendant has failed refused and/or neglected to stop his acts of trespass inspite of repeated warnings by the plaintiff, hence plaintiff claims as above”.
Pleadings were ordered, filed and exchanged, and by leave of court amended.
The case proceeded to trial on the plaintiff/respondent’s further amended statement of claim and the defendant/appellant’s 2nd amended statement of defence. By his paragraph 19 of the further amended statement of claim dated 10/3/97, and plaintiff/respondent’s final pleadings, he claimed as hereunder:
“19 WHEREOF the plaintiff sued the defendant as per writ of summons.”
At the trial, the parties led evidence in respect of their respective cases. The plaintiff/respondent called a total of six witnesses including himself whilst the defendant/appellant called four witnesses and testified as D.W.5. After address by their learned Counsel, the Learned trial Judge, in a reserved Judgment delivered on 26/9/97 in favour of the plaintiff/respondent as claimed in the writ of summons and concluded thus:
“Accordingly, I award the plaintiff the sum of N20,000 as damages for trespass as against the defendant. I also grant perpetual injunction to restrain the defendant, his servants, agent and/or privies, from committing and/or continuing further acts of trespass on the land in dispute.”
The facts of this case are simple and are as follows:-
The plaintiff in this case was one Jacob Garan of No. 50, Airport Road, Warri (now deceased) who in 1975, bought a piece of land measuring approximately 3.450 hectares situate at Ekpan,Okpe Local Government Area of Delta State of Nigeria. The transaction took place in 1975, and the plaintiff acquired title from Ovwowho Family of Ekpan, the original title holders of the land conveyed to the plaintiff by a Deed of Conveyance, in 1975, registered as No. 28, at page 28 in volume 348 of the land registry, Benin City. The Land is shown on Survey Plan No.NM 2040 prepared by a Licensed Surveyor of No. 49, Warri Sapele Road, Warri. In 1981, the plaintiff was convicted and sentenced to 5 years imprisonment. While in prison, the plaintiff received information through his brother that his land was being bulldozed by unknown persons. As a result of the information received from his brother, the plaintiff caused a warning to be published in the Nigerian Observer and the warning was published in 1982. On his discharge from prison the defendant, Staff Olomu challenged the title of the plaintiff over the piece of land hence the institution of the action by the plaintiff against the defendant, leading to this appeal.
According to the defendant, Staff Olomu who is also known as Staff Ovierigho Aghogho Olomu, the land is situated at Ekpan but not included in the plaintiffs survey plan No. 176, attached to the plaintiff’s statement of claim. The defendant contends that the land in dispute does not form part of the land conveyed to plaintiff by Ovwowho family of Ekpan. The defendant on the other hand claimed title to the land in dispute through Abolodje another branch of Ovwowho family.
Being dissatisfied with the judgment of the trial Court the defendant/appellant appealed upon one original and with leave of court, 9 additional grounds of appeal. By order of this court dated 1/6/99, one Daniel Garan was substituted and ordered to defend the appeal for himself and on behalf of the children of late Jacob Garan.
In the appellant’s brief, the following issues, were set down as calling for determination, that is to say:
“(1) Whether the Learned trial Judge properly evaluated the evidence before arriving at his conclusion?. (Grounds 1, 2, 7 and 9)
(2) Whether the Learned trial Judge was right when he allowed a Counsel handling the case to testify as a witness in the same case?.
(3) Whether the Learned trial Judge did not misdirect himself when he admitted IDI as Exhibit “D” through PW6 (Ground 4)?
(4) Whether the Learned trial Judge was right in Law when he discountenanced plaintiff’s evidence relating to the hut on the ground that same was not pleaded (Ground 5)?.
(5) Whether the Learned trial Judge was right in law when he disbelieved the evidence of DW3 and DW4 on the issue of the nonexistence of the survey plan attached to Exhibit “D” before same was signed?.
(6) Whether the Learned trial Judge was right in Law when he delivered judgement in favour of the plaintiff who did not claim any specific relief in his further amended statement of claim?.
(7) Whether the Learned trial Judge was right in Law when he awarded the swn of N20,000.00 as claimed as damages for trespass?.
(8) Whether the Learned trial Judge was right in Law when he held that the plaintiff has established his root of title through Ovwowho family and that the appellant has not shown how Abolodji family came to own the land?.”
The respondent also formulated 8 issues for determination in his brief as follows:
(i) Whether the Learned trial Judge was right in holding that the respondent has established his root of title to Ovwowho family and that the appellant has not shown how Abolodje family, a branch of Ovwowho family came to own the portion of land sold to appellant (which form part of the land in dispute)?.
(ii) Whether the procedure adopted during the trial when PW6 (Edore Lawson Umuze) a counsel in the firm of respondent’s solicitor tendered IDI as Exhibit “D” a certified true copy of a deed of conveyance dated the 31st December, 1975, and registered as No. 28 at page 28 in volume 384 of the Lands Registry in the Office at Benin City occasioned miscarriage of Justice?.
(iii) Whether the trial Judge having regard to the decision in Amokomowo v. Andu (1985) 1 NWLR (Pt.3) page 530 and pages 538 to 540 had departed from the principle stated in Mogaji v. Odofin (1978) 4 SC page 91 when he, in fact carefully and properly weighed the evidence, by comparing and contrasting the evidence of each party, before coming to a decision?.
(iv) Whether the Learned trial Judge was right in basing his judgment on the fact that the respondent established his root of title to Ovwowho family who conveyed land to him as evidenced in Exhibits ‘B’ and ‘D’ as against the appellant who said he bought the entire land in dispute from two families, the Ejekuvie family who made Exhibit F and Abolodje family, who made Exhibit G, after considering the entire evidence by way of preponderance?.
(v) Whether the learned Judge rightly disbelieved the evidence of DW3 and DW4 on the existence of survey plan attached to Exhibits ‘B’ and ‘D’?
(vi) Whether oral evidence can be given in respect of Exhibits B and D in order to contradict, alter, add or vary it’s contents?.
(vii) Whether the learned trial Judge was right when he held that evidence of facts not pleaded must be discountenanced?.
(viii) Whether there was any relief claimed by respondent to entitle him to Judgment and the award of damages of N20,000.00 for trespass?.
The appeal came up for hearing on 18/1/2000. Chief E. L. Akpofure, Learned Senior Advocate of Nigeria for the appellant, adopted the appellant’s brief dated 3/6/99, filed on 7/6/99.
Mr. E. L. Umuze, Learned Counsel for the respondent also adopted the respondent’s brief of argument dated 3/1/2000. filed on 17/1/2000.
Both Counsel advanced oral argument in support of their respective brief.
Arguing, his issues numbers 2 and 3, in the appellant’s brief of argument, Akpofure, SAN, Learned Counsel for the appellant, submitted that it is unethical, unprofessional morally and legally wrong for a counsel handling a matter to descend into the arena of conflict between the parties and testify as a witness to his client and thereafter resume the role of a counsel for the respondent as shown by the record in the instant appeal. He referred to the relevant pages of the record in his brief in support of his assertion on the role played by the counsel for respondent handling the case on behalf of his law firm, Akporiaye and Associates. Learned Senior Advocate of Nigeria, stressed on these issues that the situation is more serious in that ‘IDI’ was tendered through PW6, the Counsel as Exhibit ‘D’ which the learned trial Judge ruled upon in deciding the case at Page 128, lines 28-31 of the record. He emphasized that Exhibit ‘D’ is the plank on which the plaintiff/respondent built his case. Learned Senior Advocate further submitted that no foundation was laid for the tendering or admission, of IDI as Exhibit ‘D’ and as decided in a number of cases, there must be nexus and foundation laid for the tendering of anything as exhibit He pointed out that the Counsel for the appellant at the trial Court swiftly objected to the tendering of the document Exhibit ‘D’, but was overruled by the trial court as borne out by the record, page 91 lines 20-21.
On issue No.4, the learned Senior Advocate, submitted that it is trite law that a party does not plead evidence, but facts upon which evidence can be led. He pointed out that in the instant appeal the respondent pleaded the existence of a litigation plan at page 19 of the record and also pleaded features on the land in dispute as correctly shown on Survey Plan numbered KP 4972. Learned Counsel, concluded that the issue of the features on the litigation Plan and the Plan itself having been tendered as Exhibit ‘A’ the evidence relating to hut need not be specifically pleaded consequently the learned trial Judge was wrong in law, when he discountenanced plaintiff’s evidence relating to the hut on the ground that same was not pleaded.
After a detailed reference to the evidence of DW3 and DW4, the learned Senior Counsel on his issue 5, submitted that the reasons proffered by the learned trial Judge, which he reproduced in the brief as the grounds for disbelieving the witnesses did not qualify as grounds for disbelief. He contended that before a trial Judge can believe or disbelieve a witness, there must be substantial ground for doing so and the learned trial Judge must give reason for arriving at any conclusion.
On issue No.6, learned Senior Advocate, submitted that it is trite law that statement of claim supersedes the writ of summons and that any relief sought in the writ of summons which is not sought for in the statement of claim is deemed to have been abandoned. He concluded by submitting that it is clear in this appeal that there was no relief claimed by the respondent for which judgment was delivered in his favour by the learned trial Judge.
Learned Senior Advocate, on issue No.1, extensively referred to the evidence adduced before the learned trial Judge and the findings of the learned trial Judge and submitted that in a situation of this nature where the evidence was either wrongly evaluated by the learned trial Judge or perverse findings were made this Honourable Court can interfere with such evaluation or findings. It is also the submission of the learned Counsel on this issue that the evaluation of the evidence of the witnesses was wrong and perverse.
Learned Senior Advocate adopted his submission on issue No.6 in respect of issue No.7. He referred to the evidence of the respondent who testified as PW3 relating to the sum claimed that is N200,000 at page 84 of the record which the learned trial Judge rejected on the ground that the sum of N200,000.00 was not covered by the pleadings and submitted that the grant of N20,000.00 damages by the learned trial Judge, was also erroneous in that the ground for the grant of the general damages has not been shown as required by law.
On issue 8, learned Counsel reproduced the portion of the evidence of DW1, DW3 and PW1, relating to the root of title and contended that the respondent did not prove his root of title going by the evidence.
In conclusion, the learned Senior Advocate of Nigeria urged us to allow the appeal and set aside the decisions of the trial Court.
In reply, Mr. E. L. Umuze, Learned Counsel for the respondent, in the respondent’s brief of argument on issues No.1 and 4., submitted that there is no doubt that the learned trial Judge’s decision is amply supported by the evidence particularly the documentary evidence Exhibits ‘B’ and ‘D’ as well as the evidence of DW1 and DW3 led in the case. He explained that Exhibits ‘B’ and ‘D’ are the Same Deed of Conveyance tendered by the respondent and the respondent’s witness, PW6. Learned Counsel referred to the evidence of all the witnesses that testified and the exhibits and contended that there was conclusive evidence that the respondent established his root of title to Ovwowho family while the appellant failed to establish their root of title to the land in dispute. It is also the contention of the learned Counsel for respondent that Exhibit ‘B’ and ‘D’ were duly received in evidence.
On issue No.2, Learned Counsel for the respondent referred to the evidence of PW6 which was pleaded and submitted that the learned trial Judge was right when he received Exhibit ‘D’ in evidence on the ground that it is relevant. The learned counsel for the respondent, in his brief submitted that, when a lawyer knows prior to trial, that he will be a necessary witness except as to merely formal matters such as identification or custody of document or the like, neither he nor his firm should conduct the trial. He however, submitted that the evidence of PW6 in this case amounts merely to formal matters such as identification of document consequently the learned trial Judge was right in allowing PW6 to testify in the case.
Like the learned Counsel for the appellant, the learned Counsel for the respondent also extensively referred to the evidence adduced before the trial Court, in respect of his issue No.7 and submitted that evidence of facts not pleaded goes to no issue consequently the learned trial Judge was right to have discountenanced same in considering the case of the parties. Learned Counsel submitted that the evaluation of the evidence by the learned trial Judge was properly done in accordance with the law.
On his issue No. 8 relying on the authority of College of Education Warri v. Odedle (1999) 1 NWLR (Pt.586) 253 at 261, learned Counsel for the respondent submitted that where statement of claim refers to the Writ of Summons and state that the plaintiff claims as per his Writ of Summons, it has not abandoned the reliefs in the writ but adopted and incorporated the reliefs in the Summons. Both counsel cited a number of authorities in their briefs in support of their respective submissions.
I observed that the learned Counsel for the respondent who did not file a notice of appeal, formulated in some cases different issues from that of the appellant and allocated different numbers to the issues. I have carefully studied the issues formulated by the appellant and in my humble opinion, issues No.2 and 3 argued together and 6 can conveniently dispose of the appeal so I will proceed to determine the said issues.
It can not be disputed that in the instant appeal that one Edore Lawson Umuze, an associate in the firm of Akporiaye and Associate, testified in the case as PW6 while serving as counsel for the plaintiff in the case as borne out by the record of proceedings.
According to the submission by the learned Counsel for the appellant, Exhibit ‘D’, the plank on which the plaintiff/respondent built his case, was tendered through PW6 who served as a counsel for his legal firm as well as witness before the trial Court.
In fact, the learned Counsel for the respondent in his brief conceded that neither a counsel nor his firm should conduct a case where a counsel in a legal firm will be a necessary witness. He however submitted that that does not include formal matter such as identification of documents in custody as is the case in the instant appeal.
In the case of Adesanya Idowu v. M. A. Adekoya (1960) WRNLR 20 at 211, the court was faced with a similar situation where the evidence of plaintiff’s counsel was seriously challenged by the defendant as in this appeal. The learned Judge, Quashie-Idun, C. J., had this to say:
“I think that this case amply illustrates the importance of adhering to the practice of not allowing Counsel to appear both as counsel and as a witness in the same case.
It is my view that the procedure adopted in this case is not only contrary to the practice of the Courts but it is also an irregularity which has rendered the trial unsatisfactory in that a more competent witness than plaintiff’s Counsel was not called to give evidence on a very important issue in the case.
In the circumstances of this case, I think the ends of justice will be amply met by ordering a new trial. The appeal is accordingly allowed and the case remitted to the Magistrate’s court for a new trial by another Magistrate.”
See Iris Winifred Horn v. Robert Rickard (1963) NMLR 67 and pages 305-306 of LAW AND PRACTICE RELATING TO EVIDENCE IN NIGERIA BY AKINOLA AGUDA.
With respect to the learned Counsel for the respondent, I disagree with his submission that the evidence of the counsel, PW6 and the tendering of Exhibit ‘D’ through the witness which is the plank of the respondent’s case before the trial court can merely be regarded as formal evidence which is not on a point directly material in the case.
There is no doubt that the failure or omission of the plaintiff/respondent to clearly state his claims in his further amended statement of claim is fatal to the plaintiff/respondent’s case, having regards to the law that a statement of claim supersedes the writ of summons. Any relief sought in the writ of summons which is not sought for in the statement of claim is deemed to have been abandoned.
Learned Counsel for the respondent heavily relied on the case of College Education, Warri (Supra), a decision of this court. I am afraid, the said case can not be an authority on the issue having regards to the decision of the Supreme Court of Nigeria, in the case of Enigbokan v. American International Insurance Co (Nig.) Ltd. (1994) 6 NWLR (Pt.348) 1 at 15-16, where the Supreme Court of Nigeria, per Ogundare, J.C.A. provided the answer to issue No.6 in the instant appeal at pages 15-16, when the Supreme Court held:-
“it is well settled that a statement of claim supersedes the writ and must itself disclose a good cause of action – Udechukwu v. Okwuka (1956) 1 FSC 70, 70 (1956) SCNLR 189; Otanioku v. Alli (1977) 11-12 SC 9.
To supersede the writ, however, the statement of claim must state what is being claimed and not just claiming as per the writ of summons – Keshinro v Bakare (1967) 1 All NLR 280, 284, it follows that to supersede the writ, the statement of claim must contain a claim or claims therein set out – Nta v Anigbo (1972) 5 SC 156. Any claim in the writ not claimed in the statement of claim is taken to have been abandoned – Lahan v. Lajoyetan (1972) 6 SC 190, 192 where Sowemimo, J.S.C. (as he then was) stated the law thus:
“It is settled law that a statement of claim supersedes the writ; hence if some special form of relief be claimed on the writ and not in the statement of claim, it will be taken that so much of the claim is abandoned. So also where in the statement of claim a consequential relief is added to the claim in the writ such additional claim will deemed as claimed before the court.”
It is equally settled that an amendment of pleading speaks from the date the original pleading was filed:-Rotimi v. Macgregor (1974) 11 SC 133, 152 where Coker, JSC, observed;
“Speaking about the effect of an amendment of pleadings. Hodson, L. J. observed in Warner v. Sampson & Anor (1959) 1 QB 297 at P.321 thus:-
“I do not think that this amendment can be ignored. Once pleadings are amended, what stood before amendment is no longer material before the court and no longer defines the issues to be tried.”
In view of the foregoing, I therefore resolved the two issues that is issues No.2 and 3 argued together and issue No.6 in favour of the appellant. My answer to both issues is in the negative. With the greatest respect to the learned Chief judge, I hold that the learned trial Judge was wrong to have allowed a counsel in the legal firm handling the respondent’s case to give evidence on a point directly material in the case. I also hold the view that the learned trial Judge was wrong to grant reliefs not claimed in the further amended statement of claim, having granted leave to the respondent as plaintiff to amend his original statement of claim.
In the result, the appeal succeeds and is hereby allowed. The judgment of the lower Court in suit No.W/101/86 delivered on 26/9/96, is hereby set aside. The case is hereby remitted to the lower Court for retrial before another Judge. I award costs assessed at N3,000.00 to the appellant against the respondent.
Other Citations: (2000)LCN/0733(CA)