ISAAC OLADELE OGUNYEMI V. FISAYO ABIOLA & ORS.
(2011)LCN/4932(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of November, 2011
CA/I/294/2008
RATIO
FORMULATION OF ISSUES: WHETHER IT IS PROPER TO FORMULATE SEVERAL ISSUES FROM A SINGLE GROUND OF APPEAL
The law is settled that while a single issue may be formulated from several grounds of appeal, it is not proper to formulate several issues from a single ground of appeal. See: LEEDO PRESIDENTIAL HOTEL LTD. VS. B.O.N. (NIG.) LTD. (1993) 1 NWLR (269) 334 @ 347 A – C where it was held: “The essence of formulation of issues is to narrow the relevant points in issue. Since the issues must arise from the grounds of appeal, they are meant to encompass all the grounds of appeal, thus a single issue should contain the points raised in one or more grounds of appeal. In other words, it is the grounds of appeal that should be contracted to form the issues for determination. The rule is that a number of grounds may raise a single issue and not the reverse.”(Emphasis mine) PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
APPEAL FROM CUSTOMARY COURT: ATTITUDE OF THE APPELLATE COURT TOWARDS APPEAL FROM THE CUSTOMARY COURT PROCEEDINGS
Appellate courts are advised to adopt a liberal approach to Customary Court proceedings having regard to the fact that the Evidence Act is not applicable to Customary or Area Courts. However such proceedings must be conducted fairly and in accordance with the rules of that court. See: Odofin Vs Oni (2001) 3 NWLR (701) 488 @ 510 A – B. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
COURT PROCEEDINGS: POSITION OF THE LAW WHERE PROCEEDINGS OF A COURT OF LAW WERE CONDUCTED IN CHAMBERS
…it cannot be said that the proceedings of the lower Customary court were conducted fairly where part of the proceedings were conducted in chambers and in the absence of the parties. Even if the parties were present and consented to the procedure, the proceedings would still amount to a nullity. In the case of: Mohammed Vs Modibbo (2000) 12 WRN 138 @ 155 lines 19 – 25 it was held: “…where proceedings of a Court of law are conducted in Chambers, they are rendered null and void. It does not matter at all whether parties and/or counsel consented to it or that they raised no objection because parties and counsel cannot, on an understanding reached, confer on the court jurisdiction where it lacks one. Indeed it does not change the situation that no miscarriage of justice is occasioned by the failure of the court to sit in open court i.e. in public.” Learned counsel for the respondents has argued that there has been no miscarriage of justice, as there is nothing in the judgment to suggest that the interview conducted with the Loja of Ibodi influenced the decision reached. The response to this assertion can be found in the dictum of Tobi, JSC in Edibo Vs The State (supra) at 331 – 332 H – D where His Lordship stated thus: “Learned counsel for the respondent urged the court to follow Oyeyipo and submitted that there was no miscarriage of justice by taking the plea of the appellant in chambers. With respect, learned counsel is not correct. If there is a breach of fundamental right it does not lie in the mouth of the party in breach to canvass that there was no miscarriage of justice arising from the breach. The breach of the fundamental right being fundamental overrides and overtakes the common law principle of “no miscarriage of justice.” This is because, by the breach, the doctrine of technicality is gone as the adherence to technicality is receptive of the concept of miscarriage of justice.” (Emphasis mine).PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
ORDER FOR RETRIAL: SOME OF THE FACTORS TO BE TAKEN INTO CONSIDERATION IN DECIDING WHETHER OR NOT TO ORDER A RETRIAL ; WHETHER AN ORDER FOR RETRIAL COULD BE MADE WHERE A PLAINTIFF HAS NOT SUCCEEDED IN DISCHARGING THE BURDEN ON HIM
The Supreme Court per Uwaifo, JSC in the case of: D. EKE & ORS VS. V. U. OKWARANYIA & ORS. (2001) FWLR (51) 1974 @ 2000; also found in (2001) 4 SCNJ 300 @ 325 line 31- 326 line 6, cited by learned counsel for the respondents, stated some of the factors to be taken into consideration in deciding whether or not to order a retrial as follows: “In general, the appeal court must be satisfied before ordering a retrial that: (1) The other party is not thereby being wronged in a manner that there would be a miscarriage of justice; (2) It cannot, in the exercise of its appellate jurisdiction, do justice in the case and bring all the litigation to an end; or (3) The justice of the case, looked at in all its special circumstances, justifies it: See Abusomwan Vs Aiwerrioba (1996) 4 NWLR (Pt. 441) 13. However when a Plaintiff’s case has failed in toto, that is to say, he has not succeeded in discharging the burden on him going by the evidence, a retrial order is inappropriate and will not be made. To make such an order in such circumstances would amount to affording the Plaintiff a second chance, which he does not deserve, to prove what he failed to do at first: See Elias Vs Disu (1962) 1 SCNLR 363. The proper course to take in that situation, so long as the failure to prove is not due to a technical hitch or some other cause justifying a non-suit, is to make an order dismissing the action.” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
ISAAC OLADELE OGUNYEMI Appellant(s)
AND
1. FISAYO ABIOLA
2. MRS. SIJUWADE OLATUNJI
3. TAYE OLATUNJI
4. SUNDAY TEACHER UHROBO Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Osun State, holden at Ilesa sitting in its appellate jurisdiction delivered on 12/7/06 dismissing the appeal filed by the appellant against the decision of the Grade C Customary Court, Epe in the Atakumosa West Local Government Area of Osun – State on 6/5/99.
The appellant sought the following relief before the Customary Court:
1. Declaration that the Plaintiffs Family, Ogunyemi Family of Oke-Ogbe are owners and therefore entitled to a grant of Customary Rights of Occupancy in respect of the farmlands situate, lying and being at Oke-Ogbe via Ibodi in Atakunmosa West Local Government Area of Osun State which said farmland measures about 250 acres. It is bounded as follows:
(a) On the first side by Daramola of Ile Oke Farmland;
(b) On the second side by Sadiku of Ibodi’s Farmland;
(c) On the third side by Eriperi Stream and;
(d) On the fourth side by Oda-Aro’s Farmland.
2. N2,000.00 general damages for trespass on the said farmland.
3. Perpetual injunction restraining the Defendants, their agents, privies and any other person or persons claiming title from further trespassing upon the said farmland.
The Customary Court dismissed the appellant’s claims. After judgment was delivered, the appellant through his solicitors by a letter dated 4/6/99 applied to the court for a certified true copy of the proceedings and judgment. In the letter it was alleged that the President and members of the Court were making moves to suppress the evidence of PW4, Loja of Ibodi, Chief Adetoye Ajibike, whose evidence was allegedly taken in camera. (see page 38 of the record). Replying on the Court’s behalf the Principal Chief Registrar of the Court stated that the said Oloja of Ibodi was not called as a witness by either of the parties in the case but was interviewed by the court in chambers “to give the court light as an Oba and custodian of the customs of Ibodi area.”
He appealed against the decision to the High Court. He filed six original grounds of appeal and subsequently filed an additional ground bringing the grounds of appeal to seven. The additional ground of appeal was in respect of the proceedings held in chambers. At the hearing of the appeal on 1/6/06 learned counsel for the appellant withdrew some of the grounds of appeal. His reasons are stated at page 23 lines 29 – 36 and page 24 lines 1 – 14 of the record thus:
“I wish to say with due respect that a critical appraisal of the appellant’s claim before the lower court and evidence as contained in the record of proceedings shows that the Appellant family are tenants of Oloja Ibodi and to that extent, I concede that the Appellant family is not entitled to a grant of declaration of title notwithstanding the length of their usage of the farmland, they cannot graduate to become owners of the farmland, for that reason I seek the leave of the court to withdraw Ground 2 of the grounds of appeal which deals with ownership. By extension and for the same reason, I apply to withdraw grounds 1 and 3 because we are not contending ownership. I intend to argue grounds 4 and 7 in support of the contention that judgment ought to be given by the lower court in favour of the appellant and against the respondent for trespass, damages and injunction. I also intend to argue grounds 5 and 6 in the alternative and with the view of urging the court to set aside the judgment of the lower court. The additional ground of appeal is challenging the entire proceedings and in arguing the ground we urge the court to declare the entire proceeding a nullity because part of the proceedings were conducted in chambers.”
After careful consideration of the submissions of learned counsel on either side, the lower court dismissed the appeal. Being dissatisfied with the part of the judgment relating to the conduct of proceedings in chambers, the appellant filed a notice of appeal before this Court containing a single ground of appeal. The said ground is as follows:
‘The learned trial Judge erred in law when he held that the interview of the Loja of Ibodi in Chambers will only affect itself and not vitiate the entire proceedings before the trial Customary Court.
Particulars
(1) The learned trial Judge misdirected himself when he failed to consider the position of the Law to the effect that court proceedings must be conducted in the open and that the said right of public hearing or conduct of proceedings is a public right which cannot be waived.
(2) The learned trial Judge misdirected himself when he held that the interview in camera of the trial court of the Loja of Ibodi will only affect itself and not the entire proceedings.
(3) The learned High Court Judge misdirected himself when he held that the interview of the Loja of Ibodi did not appear on the record of appeal despite the fact that there are copious processes/documents to that effect in the record of appeal.”
At the hearing of the appeal on 28/9/2011 learned counsel for the Appellant, REMI AYOADE adopted and relied on the appellant’s brief dated 30/1/09 and filed on 3/2/09 but deemed properly filed and served on 16/7/09 and urged the court to allow the appeal. O.J. ERHABOR ESQ., learned counsel for the respondents adopted and relied on the respondents’ brief dated 5/8/09 and filed on 23/10/09 but deemed properly filed and served on 9/5/2011. He urged the court to dismiss the appeal.
The appellant formulated the following issues for determination:
(1) Whether the Learned High Court Judge was right in holding that the interview of the Oloja of Ibodi in chambers will only affect itself and not vitiate the entire proceedings before the trial Customary Court.
(2) Whether or not it is right in the interest of doing substantial justice to declare the judgment of Epe Grade ‘C’ Customary Court as unconstitutional in the circumstances of this case.
(3) Whether this is not a proper case where a retrial should be ordered by the Honourable Court.
The respondent also formulated three issues for determination thus:
1. Whether the learned appellant Judge was not right in finding that the alleged interview of Oloja of Ibodi in Chambers was not contained in the record of appeal before the High Court.
2. Whether if there was such interview which was not contained in the record, the learned appellate Judge was not right to have held that such interview in Chambers did not vitiate the proceeding as no reference to or reliance on such interview appear on the record and judgment of the trial court; and
3. Whether this was a proper case for re-trial by the Customary Court, the court of first instance.
I observe that both the appellant and the respondent have formulated several issues from the single ground of appeal. The law is settled that while a single issue may be formulated from several grounds of appeal, it is not proper to formulate several issues from a single ground of appeal. See: LEEDO PRESIDENTIAL HOTEL LTD. VS. B.O.N. (NIG.) LTD. (1993) 1 NWLR (269) 334 @ 347 A – C where it was held:
“The essence of formulation of issues is to narrow the relevant points in issue. Since the issues must arise from the grounds of appeal, they are meant to encompass all the grounds of appeal, thus a single issue should contain the points raised in one or more grounds of appeal. In other words, it is the grounds of appeal that should be contracted to form the issues for determination. The rule is that a number of grounds may raise a single issue and not the reverse.”(Emphasis mine)
Both learned counsel herein have proliferated issues. In my view the sole issue for determination in this appeal and upon which it shall be determined is whether the interview with the Loja of Ilodi in chambers rendered the proceedings before the Grade C Customary Court, Epe a nullity.
Learned counsel for the appellant argued that both the parties and the court are bound by the record of proceedings. He submitted that the entire proceedings of a court or tribunal must be in public. He submitted further that the mandatory requirement of conduct of proceedings in the open applies to all courts of law including the Epe Grade ‘C’ Customary Court. He referred to: Nuhu Vs. Ogele (2003) 12 SCNJ 158 @ 173 – 175. He argued that the trial Customary Court that saw the need to interview the Oloja of Ibodi to shed light on the case before it was under a duty to do so in the open court and in the presence of the parties. He submitted that the right conferred by section 36(3) of the 1999 Constitution on parties to an action is a public right, which cannot be waived. He referred to: Amori vs. Elemo (1983) ALL NLR (Reprint) 1 @ 20. He submitted that the legal effect of the judicial error committed by the Epe Grade ‘C’ Customary Court is that the entire proceedings are a nullity. He submitted further that it does not matter whether parties and/or counsel consented to the error by the trial Customary Court, as parties and counsel cannot confer jurisdiction on the court where it is lacking. He argued further that it does not change the situation even where no miscarriage of justice is occasioned by the failure of the court to sit in public. He referred to: MOHAMMED VS. NWOBODO (2000) 12 WRN 138 @ 155 and C.B.T.G.N.P. VS. OLOGUNDE (2006) 47 WRN 119 @ 137.He submitted that the judgment of the lower court to the effect that the interview of the Oloja of Ibodi in chambers would only affect itself and not vitiate the entire proceedings before the trial Customary Court is wrong in law. He argued that the proceedings before the trial Customary Court are unconstitutional and therefore a nullity. He urged the court to order a re-trial. He relied on: Sele Eyofokoromo & Anor Vs. The State (1979) 6 – 9 S.C. 3 @ 11-12; Sunday Kajubo Vs. The State (1988) 1 NWLR 721 @ 744. He urged the court to resolve the appeal in the appellant’s favour. In reply to the above submissions, learned counsel for the respondents referred to page 8 of the record where, after the defence had closed their case the Customary Court expressed the intention to invite the Oloja of Ibodi to appear personally to adduce evidence for clarification because both parties mentioned him when giving evidence. He observed that there was nothing in the record to show that the Oloja was eventually invited or whether he appeared in Chambers up till the time judgment was delivered. He noted that it was in response to the letter written by N.O. Folorunsho requesting for the record of proceedings and alleging that the Oloja testified as PW4 and that there was an attempt to suppress his evidence that the Customary Court clarified the position by stating that the Oloja was never a witness in the matter but was invited to shed light on the custom of Ibodi as the Oba and custodian of Ibodi custom. He contended if the Oloja were interviewed in chambers there is nothing in the record or judgment that reflects the interview or suggests that the interview influenced the judgment and thereby led to a miscarriage of justice.
He submitted that an appellate court is bound only by what is in the record of appeal and that the lower Court was in perfect order to have held that there was nothing on the record concerning the alleged interview in chambers. He referred to: Adetoun Oladeji (Nig.) Ltd Vs. Nigerian Breweries Plc (2007) All FWLR Pt. 357 (S.C) Page 837 @ 856. He further submitted that even if it were conceded, based on the letter written after the judgment of the Customary Court, that the court interviewed Oloja of Ibodi in Chambers to shed light on the custom of the area before they arrived at their judgment, the lower court was right to have held that the interview did not vitiate the proceedings for the following reasons:
(a) The trial court is a native court whose conduct during trial has to be viewed with some measure of laxity.
(b) There is copious evidence that Oloja of Ibodi was the sponsor of the Appellants throughout the trial up to this appeal. He referred to page 8 of the record where the Appellant gave evidence that it was Oloja of Ibodi who directed the Appellant to sue.
(c) The Appellant regarded the said Oloja of Ibodi not only as their Landlord, but as their witness who was represented in court during trial by Chief Adebayo Jegede the 3rd PW. He referred to the Appellant’s Counsel letter and reply of the Customary Court at pages 38 & 39 of the record of appeal.
(d) The alleged interview of the said Oloja of Ibodi in Chambers could not have been to the detriment of the Appellant who in fact first canvassed that his evidence ought to be used by the trial court and that the evidence was suppressed.
(e) The Appellant had the option of calling the Oloja of Ibodi as his witness but failed to do so; and
(f) There is nothing on the record to show that the interview influenced the trial court in their judgment and no miscarriage of justice has been alleged.
Learned counsel submitted that it is now settled law that it is not every mistake or error that will result in an appeal being allowed. It would only be allowed where the error is substantial in that it has occasioned a miscarriage of justice. He referred to: ALLI VS. ALESINLOYE & ORS (2000) FWLR Pt. 15 @ 2610.
He noted that the Appellant commenced this action before the Customary Court in 1999, ten years ago. He observed that before the Customary Court, he claimed ownership of the land in dispute but gave evidence and called witnesses to testify that he was a tenant of Loja of Ibodi. He noted further that at the High Court, conceding that he has no title to the land, he withdrew all his grounds of appeal seeking to declare him the owner of the land and canvassed only grounds seeking damages for trespass and injunction. He stated that before this Court, he is only asking for a re-trial. He argued that the appellant’s case has progressively thinned out. He submitted that an order for retrial, which would repeat a 10-year exercise of fruitless litigation, would be most oppressive on the Respondents who have two concurrent judgments in their favour. He contended that a re-trial would afford the Appellant an undeserved opportunity of improving on his case from the trial stage. He referred to the principles applicable to the grant or refusal of an order for re-trial as laid down by the Supreme Court in D. EKE & ORS VS. V. U. OKWARANYIA & ORS. (2001) FWLR Part 51 @ 1974, 2000; also found in (2001) 4 SCNJ 300 @ 325 – 326 and urged the court to dismiss the appeal with substantial costs.
The contention of the appellant in this appeal is that the conduct of proceedings in chambers in violation of Section 36(3) of the 1999 Constitution renders the entire proceedings a nullity. Section 36(1) and (3) provide:
36(1) “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or tribunal established by law and constituted in such manner as to secure its independence and impartiality.
(3) The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of decisions of the court or tribunal) shall be held in Public.”
The first question to be answered is whether or not any proceedings were conducted in chambers. Learned counsel for the respondents has argued that there is nothing in the record of proceedings of the Customary Court to show that the Court invited the Oloja to its chambers up till the time judgment was delivered and that even if this were the case, there is nothing in the judgment appealed against to show that such interview influenced the decision reached. The appellant bases his contention that proceedings were held in camera on the reply of the Principal Registrar of the Customary Court to his counsel’s letter wherein it was stated that the Oloja was interviewed in chambers. The appellant’s counsel’s letter dated 4/6/99 and the reply by the Principal Registrar of the Customary Court at pages 14 and 15 of the record are reproduced hereunder:
“4-6-99
The President & Members,
Grade ‘C’ Customary Court,
Epe,
Atakumosa L/G Area,
c/o The Principal Registrar
Customary Court Registry,
Osu
Dear Sir,
Suit No. C7/99
Isaac Oladele Ogunyemi (for himself) and on behalf of Ogunyemi family of Okeogbe via Ibodi)
VS
Fisayo Abiodun & 3 Ors.
Application for Certified True Copy of Proceedings and Judgment
We are solicitors for the plaintiff in this case.
We filed an appeal against the decision of the said court and we require a copy of the proceedings and judgment to enable us prosecute the appeal.
We like to mention very emphatically that the plaintiff and 4 other witnesses gave evidence as follows:-
1. Isaac Oladele Ogunyemi – Plaintiff
2. Gabriel Olaosebikan – 1st PW
3. Chief Adebayo Jegede – 2nd PW
4. Tunji Alonge – 3rd PW
5. Loja of Ibodi Chief Adetoye –
Ajibike – 4th PW
Rather surprisingly we have our strong suspicion that the President and members of Grade ‘C’ Customary Court, Epe are making moves to suppress the evidence of the 4th PW and this is a very serious matter which we shall take up with the Chief Judge of Osun State if the evidence of the 4th PW is deliberately removed from the proceedings of the court.
We even learnt that his evidence was taken in camera. This is contrary to the civil procedure rules of the court.
It is hoped that there will be timely redress of the matter before it … (not legible). Meanwhile we hereby (sic) for a certified true copy of the said record of proceedings and judgment. Thereafter we shall know the appropriate step to take.
Yours faithfully,
(signatory’s name not clear)”
The reply of the court reads thus:
“Our Ref. No. CR. 120/27
Central Registry Customary Court,
Atakunmosa West Local Government,
Osu.
11th June 1999
N.O. Folorunsho & Co.
Solicitors & Advocates,
B 191 Okesa Street,
Ilesa
Suit No. C7/98
Isaac Oladele Ogunyemi (for himself and on behalf of Ogunyemi family of Oke Ogbe via Ibodi) Plaintiff
And
Fisayo Abiodun & 3 Ors.
With reference to your letter dated 4th June 1999, I am directed by the President and Members of Epe Grade ‘C’ Customary Court to inform you that Oba Adeloye Ajibike, the Oloja of Ibodi was never called by both parties to give evidence before the court. He was interviewed by the court in chambers to give the court light as Oba and Custodian of the custom of Ibodi Area.
For your information, Chief Adebayo Jegede, the 3rd plaintiff’s witness adduced evidence on behalf of Oloja of Ibodi – Oba Adeloye Ajibike.
As regards the application for certified true copy of records of proceedings and judgment, efforts are being made to produce same and you may send your clerk or client to Osu for collection anytime from now.
Thanks.
Signed
Elder Oyeleyeo Olufeitimi,
Principal Court Registrar Grade 1
Atakunmosa West Local Government,
Osu.” (Emphasis mine)
Reference had earlier been made to the proceedings of 18/3/99 when the Court indicated an intention “to invite the Oloja of Ibodi to appear in person to adduce evidence for clarification because both parties mentioned Oloja when given (sic) evidence.” (See page 11 of the record). The letter written by the Principal Registrar of the Court on the instructions of the President and members of that court shows clearly that the Court made good that intention by inviting the said Oba for an interview to shed light on the custom of Ibodi Area. Although there is no reference to the interview in the judgment of the court at pages 12 and 13 of the record, there is no doubt that an aspect of the proceedings was conducted in chambers. The letters referred to above formed part of the record of appeal transmitted to the High Court. This fact is borne out page 55 lines 15 – 22 of the record where the learned Judge in the course of judgment observed thus:
“The first allegation that Loja of Ibodi was a witness for the appellant is only in his solicitor’s letter of 4/6/99 to the lower court complaining that he heard of plans to remove such evidence from the records. The lower court replied in the letter of 11th June 1999, that the Loja of Ibodi was never called by both parties to give evidence before the court, There is nothing from the Appellant to contradict this.”
What is the position of the law on court proceedings conducted in chambers? Interpreting Section 33(3) of the 1979 Constitution (section 36(3) of the 1999 Constitution) the Supreme Court in the case of: Edibo Vs The State (2007) 13 NWLR (1051) 306 @ 337 D – E per Ogbuagu, JSC held thus:
“…it is now firmly established that a breach of a mandatory constitutional provision is more than a mere technicality. That it touches on the legality of the whole proceedings, including judgments … and any incidental orders made thereafter.”
His Lordship stated further at page 337 – 338 H – C:
“In my respectful but firm view therefore, the right provided in section 33(3) of the 1979 Constitution or 36(3) of the 1999 Constitution, on the decided authorities is a public right for every citizen of this country. The courts must be open to any one who may present himself or herself for admission, or is obliged to be so presented. There are some exceptions in the proviso of the said two sections as to the right of the public to free access to court proceedings. But being a public right a party to any matter in the court cannot waive the right. See the case of Ariori Vs Elemo (1983) 1 ALL NLR 1; (1953) 1 SCNLR 1 at 12 15 per Eso, JSC, also cited and relied upon in the appellant’s brief.”
His Lordship of the court below, in the course of his judgment held that the interview of the Loja of Ibodi in camera by the Customary Court was improper. On the effect of the improper procedure he held at page 56 lines 17 – 28 and at page 57 lines 20 – 23 thus:
“…it is my view that the improper proceedings will only affect itself, If it is on record, it is only for it to be struck out or expunged from the records. It will only go to affect the proceedings if it is shown to have been the basis of the judgment of the court or affected it in any way. It is now trite that it is not every error in a proceedings (sic) that will result in the setting aside of the judgment or proceedings. Such a result will only be if it is shown that the error led to a miscarriage of justice. See Larmie Vs Date Processing (2005) 12 SCNJ 299 @ 316 – 377. … The appellant has in this appeal failed to point out how the error of interviewing the Loja in camera affected the judgment in this case or affected his case.”
Appellate courts are advised to adopt a liberal approach to Customary Court proceedings having regard to the fact that the Evidence Act is not applicable to Customary or Area Courts. However such proceedings must be conducted fairly and in accordance with the rules of that court. See: Odofin Vs Oni (2001) 3 NWLR (701) 488 @ 510 A – B. No matter how one looks at the circumstances of this case, it cannot be said that the proceedings of the lower Customary court were conducted fairly where part of the proceedings were conducted in chambers and in the absence of the parties. Even if the parties were present and consented to the procedure, the proceedings would still amount to a nullity. In the case of: Mohammed Vs Modibbo (2000) 12 WRN 138 @ 155 lines 19 – 25 it was held:
“…where proceedings of a Court of law are conducted in Chambers, they are rendered null and void. It does not matter at all whether parties and/or counsel consented to it or that they raised no objection because parties and counsel cannot, on an understanding reached, confer on the court jurisdiction where it lacks one. Indeed it does not change the situation that no miscarriage of justice is occasioned by the failure of the court to sit in open court i.e. in public.”
Learned counsel for the respondents has argued that there has been no miscarriage of justice, as there is nothing in the judgment to suggest that the interview conducted with the Loja of Ibodi influenced the decision reached. The response to this assertion can be found in the dictum of Tobi, JSC in Edibo Vs The State (supra) at 331 – 332 H – D where His Lordship stated thus:
“Learned counsel for the respondent urged the court to follow Oyeyipo and submitted that there was no miscarriage of justice by taking the plea of the appellant in chambers. With respect, learned counsel is not correct. If there is a breach of fundamental right it does not lie in the mouth of the party in breach to canvass that there was no miscarriage of justice arising from the breach. The breach of the fundamental right being fundamental overrides and overtakes the common law principle of “no miscarriage of justice.” This is because, by the breach, the doctrine of technicality is gone as the adherence to technicality is receptive of the concept of miscarriage of justice.” (Emphasis mine).
The cases of Nigeria-Arab Bank Ltd. Vs Barri Engineering Nig. Ltd. (1995) 8 NWLR (413) 257 and Nuhu Vs Ogele (2003) 18 NWLR (852) 251 were cited with approval.
In light of all that has been said above, there is no doubt that the interview of the Loja of Ibodi in chambers by the Customary Court rendered the entire proceedings and the judgment delivered in respect thereof a nullity. The appeal therefore succeeds in this regard. The judgment of the Customary Court delivered on 6/5/99 is hereby set aside.
The pertinent question to be answered at this stage is whether in the circumstances of this case it is proper to order a retrial. The Supreme Court per Uwaifo, JSC in the case of: D. EKE & ORS VS. V. U. OKWARANYIA & ORS. (2001) FWLR (51) 1974 @ 2000; also found in (2001) 4 SCNJ 300 @ 325 line 31- 326 line 6, cited by learned counsel for the respondents, stated some of the factors to be taken into consideration in deciding whether or not to order a retrial as follows:
“In general, the appeal court must be satisfied before ordering a retrial that:
(1) The other party is not thereby being wronged in a manner that there would be a miscarriage of justice;
(2) It cannot, in the exercise of its appellate jurisdiction, do justice in the case and bring all the litigation to an end; or
(3) The justice of the case, looked at in all its special circumstances, justifies it: See Abusomwan Vs Aiwerrioba (1996) 4 NWLR (Pt. 441) 13.
However when a Plaintiff’s case has failed in toto, that is to say, he has not succeeded in discharging the burden on him going by the evidence, a retrial order is inappropriate and will not be made. To make such an order in such circumstances would amount to affording the Plaintiff a second chance, which he does not deserve, to prove what he failed to do at first: See Elias Vs Disu (1962) 1 SCNLR 363. The proper course to take in that situation, so long as the failure to prove is not due to a technical hitch or some other cause justifying a non-suit, is to make an order dismissing the action.”
In the case of Edibo Vs The State (supra) the Supreme Court held that the arraignment and taking of the plea of the appellant and other accused persons in chambers rendered the entire proceedings including the conviction and sentence null and void. In determining whether or not to order a retrial the Court considered the evidence led in the nullified proceedings to ascertain whether it disclosed a substantial case against the appellant. The court held that as the evidence adduced at the trial would at best only sustain a conviction for manslaughter, coupled with other circumstances such as the death of the other accused in custody and the fact that the appellant had already been in custody for about ten years, it would be oppressive to order a retrial. The point being made here is that an order of retrial is not automatic. The appellate court is entitled to consider the evidence led before the trial court to determine whether an order of retrial would be just in the circumstances of the case.
In the instant case, it is not in dispute that although the appellant originally sought a declaration of title in his family’s favour, he conceded at the trial that his family were tenants of Oloja of Ibodi on the land. To this end the claim of ownership was abandoned on appeal to the High Court. The appellant was left with his claim for N2000 as damages for trespass and perpetual injunction. In this court he did not pursue the claim for damages for trespass and injunction. Rather he is seeking a retrial of the case on the ground that the proceedings before the Customary Court were a nullity.
A careful examination of the record of proceedings of the Customary Court shows that the appellant fought his case thereat on the basis of ownership of the land in dispute. He did not lead any evidence to prove the claim of trespass against the defendants. His claim for declaration of title collapsed. I am therefore of the considered view that an order of retrial in the circumstances of this case “would amount to affording the Plaintiff a second chance, which he does not deserve, to prove what he failed to do at first”, as stated in Eke Vs Okwaranya (supra). The original claim before the Customary Court was filed in 1999. I hold that it would be oppressive on the respondents to order a retrial in this case.
The appeal therefore succeeds in part to the extent that the judgment of the Grade ‘C’ Customary Court, Epe in the Atakumosa West Local Government Area of Osun State delivered on 6/5/99 in suit no. CR7/98 is hereby set aside for being null and void. I decline to make an order of retrial, The said suit is accordingly dismissed. The parties shall bear their respective costs in the appeal.
CHINWE E. IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother K.M.O. KEKERE-EKUN JCA. I agree with the reasoning and conclusion therein. The appellant failed to prove title to the land in dispute at the customary court. On appeal to the High court, he abandoned his claim to ownership and now settled for damages for trespass and injunction. The appeal was dismissed. Here in this court he succeeded on technical grounds in having the case at the customary court declared null and void because the evidence of Oloja of Ibodi was taken in chambers. An order for retrial will impose undue hardship on the respondent as nothing would come of it. I agree with the lead judgment that the proper order in the circumstances is one of dismissal of the suit in the customary court. I abide by the order as to costs.
MOORE A.A. ADUMEIN, J.C.A.: I had the privilege of reading before now the judgment just delivered by my learned brother, KEKERE-EKUN, JCA. The appeal was robustly and rightly resolved by my learned brother. I completely agree with the conclusion in the leading judgment.
I abide by all the consequential orders in the leading judgment, including the order that the parties bear their respective costs.
Appearances
Remi Ayoade,
E.Y. Mani,For Appellant
AND
O.J. Erhabor,
M.E. AkolodiFor Respondent
