OGBONNA OKE V. NKWOSHI NWIZI
(2013)LCN/6327(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of June, 2013
CA/E/163/2011
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
OGBONNA OKE Appellant(s)
AND
NKWOSHI NWIZI Respondent(s)
RATIO
WHETHER OR NOT THE COURT HAS THE POWERS TO RAISE ISSUES SUO MOTU
The law is well settled that a court has the powers to suo motu raise issues that non of the parties to a case before it has raised. But it has no power to proceed and determine the case or any matter in the case on the basis of the issues it has raised suo motu, without hearing the parties on the said issues or giving the parties reasonable opportunity to address it. Upon raising the issues, the court has a duty to invite both sides to address it on them before proceeding to determine the case or any matter therein on the basis of the said issue. If, as happened in this case, the court raised and determined the issues without hearing the parties or giving them reasonable opportunity to be heard, an error in the proceedings occurs and a violation of the right of the parties to fair hearing results. In OBUMSELI v. UWAKWE (2009) All FWLR (pt 486) 1994 at 20141 cited by Learned Counsel to the appellant, the Supreme Court held that “On no account should a court of law raise a point suo motu no matter how clear it may appear to be and proceed to resolve it one way or the other without hearing the parties. If it does so, it will be in breach of the parties’ right to fair hearing. See also its similar restatements in DALEK NIGERIA LTD V. OIL MINERAL PRODUCING AREAS DEVELOPMENT COMMISSION (OMPADEC) (2007) 2 SC 305 and MOJEKWU V. IWUCHUKWU (2004) 18 NSCQR 184.
What is the legal effect of this kind of error on the decision rendered without hearing the parties? Should it be treated like errors in proceedings that can vitiate proceedings only if they occasion a miscarriage of justice? Judicial opinion on the matter is divided. One view represented by the Supreme Court decision in VICTINO FIXED ODDS LIMITED V. JOSEPH ODO & ORS (2010) 8 NWLR (pt 1197) 486) hold that it has a vitiating effect without more. In other words, the denial itself amounts to a miscarriage of justice. The Supreme Court in this case held per Adekeye JSC that “a trial court has the right to raise an issue suo motu. However, it is imperative that parties must be given the opportunity to address it thereon in order not to breach the rule of fair hearing. The right to fair hearing is a fundamental right, a constitutional right guaranteed by the 1999 Constitution of the Federal Republic of Nigeria – and a breach of it particularly in trials vitiates such proceedings, thereby rendering same null and void. A hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case, or call witnesses. When a judge raises an issue suo motu, it raises an issue not in contemplation of the parties, and not before the court in the circumstances. Procedural fairness entails that judges must afford parties before them the right to be heard before deciding a matter. In the case in hand – the Learned Judge raised an issue suo motu in the process of writing his judgment when he should be clothed with the toga of impartiality.”
The Supreme Court restated this position in EBOLOR V. OSAYANDE (1992) 7 SCNJ 217 when it held, per Nnaemeka – Agu JSC that “our system of appeals in our adversary system does not permit a court to dig into the records and fish out issues, no matter how patently obvious, and, without hearing the parties use it to decide an issue in controversy between the parties to the appeal. It runs counter to the impartial status and stance expected of a judge in the system. It is better that the parties raise and argue it by themselves. But if it is so fundamental that it goes to the jurisdiction or vires of the court then it must be brought to the notice of the parties to the appeal and argument received on it before it is decided.” PER AGIM, J.C.A.
THE MAIN PURPOSE OF A COURT ADDRESS
The Supreme Court in OGUNSANYA V. THE STATE (2011) stated per Rhodes-Vivour JSC that:
“a case is won on credible evidence and not on address. No amount of brilliant address or playing to the gallery by counsel can make up for lack of evidence to prove or defend a case in court. The main purpose of an address is to assist the court, and is never a substitute for compelling evidence. Failure to address will not be fatal or cause miscarriage of justice. This is so because whether counsel addresses a court or not the court must do its own research with the sole aim of seeking the truth and determining which side is entitled to judgment.
In the absence of address by counsel the trial was fair.” PER AGIM, J.C.A.
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On the 15th of August, 2008, the respondent herein, as plaintiff filed suit No. OCC/055/2008 in the customary court of Ogbaga in Ebonyi State Claiming for:
1. Declaration of title to the land situate at Ali-Ihe Nwizi Iji Ede Echara.
2. An order restraining the defendant, his agents, friends and relatives from further encroachment on the said land.
After the close of evidence by both sides, the customary court rendered judgment in the suit on the 28th of January, 2009. It was a split decision. The majority judgment which is the judgment of the court held that the appellant is the owner of the Suitland and not the respondent. The minority decision was that the respondent had proved “his case on a balance of probability” and so was entitled to judgment. Dissatisfied with this decision of the court, the respondent on the 9th of February, 2009 filed a notice of appeal, commencing Appeal No. CA/E/10A/2009 to the Customary Court of Appeal of Ebonyi State. Following completion of addresses by both sides, the Ebonyi State Customary Court of Appeal on the 19th April, 2011 delivered judgment allowing the appeal and ordered as follows –
1. The majority judgment of Ogbaga Customary Court in Echiaba Development Centre Ebonyi Local Government Area Ebonyi State of Nigeria delivered on the 28th day of January, 2009 in suit No. OCC/05/2008 between Nkonshi Nwizi v. Ogbonna Oke is hereby set aside.
2. The minority judgment of the court delivered by Hon. Innocent Nwogbaga is hereby restored.
3. The appellant Nkwonshi Nwizi is hereby declared rightful owner of the parcel of land known and called ALI IHE NWIZI IJI situate at Ede Echara Echiaba Development Centre Ebonyi Local Government Area Ebonyi State of Nigeria.
4. Cost in favour of the appellant is assessed at N5000 (Five Thousand Naira).
Not satisfied with this judgment of the said Customary Court of Appeal, the appellant herein, applied for, and on the 17th May, 2011 obtained the leave of that Court to appeal against its judgment mentioned above. Pursuant to the leave to appeal, the appellant on the 23rd May, 2011 filed a notice of appeal commencing this appeal No. CA/E/163/2011 on ten grounds. Both sides have filed, exchanged and adopted their respective briefs of argument. The appellant filed his brief. The respondent upon being served with the appellant’s brief filed his brief. The appellant, upon being served with the respondent’s brief filed his reply brief.
In his brief, the appellant raised four issues for determination as follows-
1. Was the lower court right in discountenancing Exhibit A by not evaluating same and ascribing to it probative value.
2. Was the lower court justified in making finding or applying the native laws or customs on which none of the parties to the suit testified before the trial court in arriving at its decision.
3. Was the lower court right in holding that the disputed land was not abandoned by the Respondent’s father?
4. Was there a proper evaluation of the evidence of the parties on record by the lower court in support of its decision?
The respondent in his brief raised the following issues for determination-
1. Whether the lower court evaluated and ascribed probative value to exhibit “4”.
2. Whether the lower court was not justified in applying the native laws and customs of the people in arriving at its decision and whether the lower court did apply any native law and custom on which no evidence was given at the court.
3. Whether the lower court was right in holding that the disputed land was not abandoned by the respondent’s father.
4. Whether the lower court properly evaluated the evidence of the parties on record.
Since the issues raised by both sides for determination in this appeal are in substance the same, I will adopt the issues as framed by the appellant as the issues for determination in this appeal.
Before I commence the consideration of the issues for determination in this appeal, let me make some observations concerning the unsatisfactory state of the records of the proceedings of the Ogbaga Customary Court. The testimony of each witness is not separately and clearly set out. Some of the testimonies seem to merge into each other, giving an impression of a continuation of the testimony of the initial witness. It is a better practice to clearly separate the testimonies from each other in a manner that will make the testimony of a particular witness obviously distinct from that of another witness. The record must show when the testimony of a witness commenced and indicate that it has come to an end.
I also observed that in many instances, the exact testimony of the witness is not recorded, rather it is the courts report of what the witness said that is recorded. One example is in respect of the testimony of Nkwonshi Nwizi (respondent). It is recorded as follows-
“I am Nkwonshi Nwizi by name I am a native of Ndimbam Okputumo. I am a farmer and fifty years of age why did you come to court? The plaintiff told the court that Ogbonna Oke the defendant is living in my father’s land and refuse to evacuate the land. The plaintiff said that is why I sue Ogbonna to court. The plaintiff also told the court that Ogbonna Oke has sold part of the land.”(sic)
The first two sentences are the direct statements of the witness. The rest are reported statements and can create a fertile ground for avoidable disputations as to what the witness actually meant or did not mean to say. A court’s record of the testimony of a witness in proceedings before it must contain the direct exact words of the witness without glosses, interpolation or embellishments. It should not contain a report or explanation of what the witness said.
Another observation is that the record of the testimonies of witnesses did not clearly indicate when a witness is testifying in examination-in-chief, under cross-examination and under re-examination. In most instances the record state that a witness is asked a question without indicating who is examining the witness. In one instance the record indicate that the court examined both parties. Under the heading “cross-examination by court to both parties:” questions and answers followed without a clear indication of who was being asked what question and who was giving what answer. The best and more desirable practice of the sequence of recording the testimony of a witness is to first record the testimony in examination in chief, then the testimony under cross-examination by the opposing party, followed by his testimony in re-examination clarifying ambiguities caused by the cross-examination or answering to new evidence or issues introduced by the cross-examination. It is followed by examination of the witness by the court, if need be. Each of this aspect of his testimony must be clearly and separately set out under a heading depicting the stage of the testimony. This is the usual practice in most courts across jurisdictions. This is the practice in most, if not, all customary courts across the country. I think this practice should be maintained. It ensures clarity, orderliness, transparency certainty, accuracy and efficient case management.
The practice of cross-examining all the parties to a case and their witnesses together and recording the questions and answers as one continuous record must be stopped. The examination of any witness by court must be clearly and distinctly set out and so headed.
It is also obvious from the record of proceedings of the customary court that the court asked too many questions and was too involved in obtaining the evidence in the case. Much of the evidence was elicited through questions from the court. It is not the duty of a court to assist the parties to elicit or obtain evidence to prove or support their case. The court should leave that to the parties who know what case they have come to present. All the court should do is give each party and his witnesses reasonable opportunity to present their case. Reasonable opportunity does not include assisting them to elicit evidence or directing them on what to do in presenting their case. A court should not engage in routine questioning of the parties and their witnesses. It is not mandatory that the court must ask every witness questions. This is not consistent with its role as an impartial arbiter. This kind of practice can render its impartiality suspect. A court during trial, can ask questions to clarify any issue that it considers needs clarification to enable it determine the real issues in controversy, to help the substantial justice of the case. But this must be done sparingly and only when there is glaringly a very compelling need and not as a regular or habitual practice. The inherent power of a court to examine a witness is certainly not meant to be used frequently and routinely. The fact that the judges of the customary court are not qualified legal practitioners is no justification for these irregular practices. It is a court established by Law to administer the customary laws to yield justice in accordance with the customary courts law and Rules and the constitution. Ignorance of these laws is no excuse. If they are not equipped enough to comply with minimum standards of a fair adjudicatory process, then the court is not constituted in a manner as to guarantee its independence and impartiality as required by S. 36 (1) of the 1999 Constitution. If we excuse ignorance of law, what of common sense, the sense of orderliness, the inherent sense of fairness and the ability to read and write in English language properly. In any case the chairman of the Customary Court is by virtue of S. 5 (v) Customary Courts Law, a legal practitioner of at least 3 years post-call experience.
In view of the unsatisfactory state of the record of the Ogbaga
Customary Court, this Court after the appeal had been fixed for judgment, invited both sides to express their view on the matter of the state of the said record on the 5th of June, 2013. Counsel to both sides agreed that the irregularities in the record have not affected the presentation of their respective case in this court and both prayed this Court to determine the merit of the appeal on the said record as it is, promising to file a document indicating the page of the record of appeal where the testimony of each witness in the Customary Court can be found. Learned counsel for the respondent informed this Court that he compiled the said record of the proceedings of the Customary Court which was certified as correct by the Registrar of the Customary Court. Both Learned counsel pointed out that they have no objection to any part of the record as it is. The matter was adjourned from the 5th of June, 2013 to 17th June, 2013, to enable counsel file the document clarifying where to find each witness testimony in the record and for hearing of the appeal. They have now done so. I have seen the said document. On 17th June, 2013, Learned Counsel to both sides re-adopted their briefs of argument. I will leave the matter of the record of the proceedings of Ogbaga Customary Court to rest here and return to the determination of the merit of this appeal.
Let me start with the first issue of whether the lower court was right in discountenancing exhibit A by not evaluating same and ascribing to it probative value. The part of the judgment of the lower Court challenged under this issue states as follows-
“I wish to state equally that exhibit B is the letter head of HRH Eze Aidan O. Mbam Amadi Onuoha 11 of Nkaleke Echara Unuhu Community. The court rather made use of what it called exhibit A in her judgment. I have read the whole records of proceedings and no witness for either the appellant or the respondent ever tendered what the court called exhibit A which it relied on in giving judgment to the respondent. It is therefore mysterious on how that document entered into the court file. That purported exhibit A is made on a letter head of Nkaleke Echara Unuhu Community Ozibo Local Government Area. The first signatory in that document is HRH Eze A.O. Mbam Amadi yet he never made allusion to the existence of that document exhibit A in his oral evidence in court. In a like manner nor of the other nine signatories to that exhibit A was called as a witness by the respondent. It therefore boils down to the fact that the purported exhibit A is a fictitious document which existed without the knowledge and approval of HRH Eze A. Amadi the custodian of the community custom and culture. In the task of doing substantial justice I am very unwilling to accord any probative value to the purported exhibit A which emanated from nowhere and landed in the court file.”
Learned Counsel for the appellant has argued that exhibits A and B were tendered in evidence in the trial Customary Court, that the respondent herein in the lower court did not complain that exhibit A was not part of the record of the proceedings at the trial customary court and that it was the lower that suo motu raised and determined it and thereby made a case for the respondent.
Learned Counsel for the respondent has argued in reply that the issue of the admissibility and probative value to be accorded exhibit A was first raised by the respondent as issue No. 5 in his written final address before the trial court and so it is not correct that it was raised suo motu by the lower court. He also argued in reply that the lower court properly evaluated exhibit A when it considered that the trial court should not have used exhibit A because it was not tendered in the trial proceedings and is therefore of doubtful source and authenticity.
I have carefully read the written final address of the respondent at the lower court to find out if it raised the issue of the admissibility and probative value of exhibit A and on what basis. It is clear from that address that the respondent raised the issue on an entirely different ground, to wit that documentary evidence is unknown to customary law. Learned counsel for respondent did not contend that exhibit A was never tendered during trial and is of doubtful source and authenticity. For ease of reference, the said address on issue No. 5 of the respondent’s final address at the lower court is reproduced here as follows –
“One question that is pertinent at this stage is; is documentary evidence known and prevalent under Izzi custom and native law? The answer to this question can be answered by a line of authorities where even the Supreme Court has held that documentary evidence is unknown to native law and custom, see the case of Olubudun & 4 Ors v. Lawal & Anor (2008) 6-7 SC (pt 1) 123 where the apex court held “…it is a well established principle of law that documentary evidence is unknown to native law and custom.” In the above case the Supreme Court upturned the judgment of the lower court based partly on the admission of a letter written by Oba that the ownership of a disputed land was in one of the parties. See also the cases of Egwu V. Egwu (1995) 5 NWLR (PT 396) 351; Ajadi V. Olanrewaju (1969) 1 ALL NLR 382.
The erroneous belief and predication of its decision on this document by the trial court has occasioned a grave miscarriage of justice by placing the defendant/respondent at unmerited advantage.”
It is clear from this address that the respondent at the lower court did not contend that exhibit A was not tendered in evidence during the proceedings and that it is a fictitious and false document existing without the knowledge and approval of HRH Eze A. Amadi the custodian of the community custom and so should not have been used by the trial court. It is the lower court that suo motu raised these issues in its judgment and relied on them as a basis for discountenancing exhibit A. The ground upon which the respondent challenged the trial court’s use of exhibit A was glaringly not considered or even referred to by the trial court.
It is also glaring that the lower court raised and determined these issues suo motu without hearing counsel to both sides on it or giving them reasonable opportunity to address it on the issues. The law is well settled that a court has the powers to suo motu raise issues that non of the parties to a case before it has raised. But it has no power to proceed and determine the case or any matter in the case on the basis of the issues it has raised suo motu, without hearing the parties on the said issues or giving the parties reasonable opportunity to address it. Upon raising the issues, the court has a duty to invite both sides to address it on them before proceeding to determine the case or any matter therein on the basis of the said issue. If, as happened in this case, the court raised and determined the issues without hearing the parties or giving them reasonable opportunity to be heard, an error in the proceedings occurs and a violation of the right of the parties to fair hearing results. In OBUMSELI v. UWAKWE (2009) All FWLR (pt 486) 1994 at 20141 cited by Learned Counsel to the appellant, the Supreme Court held that “On no account should a court of law raise a point suo motu no matter how clear it may appear to be and proceed to resolve it one way or the other without hearing the parties. If it does so, it will be in breach of the parties’ right to fair hearing. See also its similar restatements in DALEK NIGERIA LTD V. OIL MINERAL PRODUCING AREAS DEVELOPMENT COMMISSION (OMPADEC) (2007) 2 SC 305 and MOJEKWU V. IWUCHUKWU (2004) 18 NSCQR 184.
What is the legal effect of this kind of error on the decision rendered without hearing the parties? Should it be treated like errors in proceedings that can vitiate proceedings only if they occasion a miscarriage of justice? Judicial opinion on the matter is divided. One view represented by the Supreme Court decision in VICTINO FIXED ODDS LIMITED V. JOSEPH ODO & ORS (2010) 8 NWLR (pt 1197) 486) hold that it has a vitiating effect without more. In other words, the denial itself amounts to a miscarriage of justice. The Supreme Court in this case held per Adekeye JSC that “a trial court has the right to raise an issue suo motu. However, it is imperative that parties must be given the opportunity to address it thereon in order not to breach the rule of fair hearing. The right to fair hearing is a fundamental right, a constitutional right guaranteed by the 1999 Constitution of the Federal Republic of Nigeria – and a breach of it particularly in trials vitiates such proceedings, thereby rendering same null and void. A hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case, or call witnesses. When a judge raises an issue suo motu, it raises an issue not in contemplation of the parties, and not before the court in the circumstances. Procedural fairness entails that judges must afford parties before them the right to be heard before deciding a matter. In the case in hand – the Learned Judge raised an issue suo motu in the process of writing his judgment when he should be clothed with the toga of impartiality.”
The Supreme Court restated this position in EBOLOR V. OSAYANDE (1992) 7 SCNJ 217 when it held, per Nnaemeka – Agu JSC that “our system of appeals in our adversary system does not permit a court to dig into the records and fish out issues, no matter how patently obvious, and, without hearing the parties use it to decide an issue in controversy between the parties to the appeal. It runs counter to the impartial status and stance expected of a judge in the system. It is better that the parties raise and argue it by themselves. But if it is so fundamental that it goes to the jurisdiction or vires of the court then it must be brought to the notice of the parties to the appeal and argument received on it before it is decided.”
The notions underlying this view are that:
(i) the denial of the right of address itself is a miscarriage of justice in that it results in the violation of the party’s right to fair hearing.
(ii) Even though addresses of Counsel are not substitutes for evidence and the relevant or applicable law and the decision must be based on the evidence and the applicable law, addresses can however influence the approach of the court in the application of law to the facts of a case. This likely influence of addresses on the courts application of law to the facts of a case was highlighted by the Supreme Court.
In OBODO V. OLOMU & ANOR (1987) 3 SC 43 and PAM & ANOR V. MOHAMMED & ANOR (2008) 5-6 SC (pt 1) 83. In these cases the court stated and restated that “Addresses form part of the case and failure to hear the address of one party, however overwhelming the evidence seems to be on one side, vitiates the trial, because in many cases, it is after the addresses that one finds the law on the issues thought not in favour of the evidence adduced.”
The other view represented by the Supreme Court decision in EFFIOM & ORS V. CROSS RIVER STATE INDEPENDENT ELECTORAL COMMISSION & ANOR (2010) 14 NWLR (pt 1213) 106 is that the denial of the right of address of itself does not occasion a miscarriage of justice and so cannot vitiate the decision until the party denied the right of address shows that such denial or failure to hear him on the point has occasioned some miscarriage of justice. The Supreme Court in this case held per Tabai JSC that “while the court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu, a failure to do so does not necessarily lead to a reversal of its decision, the appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice. The same court in LEADERS OF COMPANY LTD & ANOR V. BAMAIYI (2010) 18 NWLR (pt 1225) 329, held per Adekeye JSC that “It is however noteworthy that it is not in all cases where a court raises an issue suo motu that will lead to reversal of the decision so reached. The appellate court sitting over such judgment must be convinced that the issue so taken suo motu is substantial and has led to a miscarriage of justice against the appellant.”
The decisions adopting this approach did not indicate the notion underlying this approach. The impression one gets is that it seems to be derived from or based on the general judicial approach to treatment of errors in proceedings, which is that the court will not strike down a proceeding or decision on account of such error unless it can be shown that the error is substantial or has occasioned a miscarriage of justice in the sense that the decision would have been different if the error was not made. The Supreme Court in OGUNSANYA V. THE STATE (2011) stated per Rhodes-Vivour JSC that:
“a case is won on credible evidence and not on address. No amount of brilliant address or playing to the gallery by counsel can make up for lack of evidence to prove or defend a case in court. The main purpose of an address is to assist the court, and is never a substitute for compelling evidence. Failure to address will not be fatal or cause miscarriage of justice. This is so because whether counsel addresses a court or not the court must do its own research with the sole aim of seeking the truth and determining which side is entitled to judgment.
In the absence of address by counsel the trial was fair.”
The preponderance of judicial opinion is that a decision on an issue raised by the court suo motu without hearing the parties or giving them an opportunity to address the court on it is a nullity for violating the right of the parties to fair hearing. I feel inclined to go with this position. There is no doubt that the decision of a court must be based on the evidence before it and the applicable law and that Counsel addresses cannot replace the evidence or applicable law. It is equally beyond doubt that Counsel addresses greatly influence the judicial approach to the application of the relevant law to the established facts before the court. The denial of the right to address robs a party an opportunity to proffer views that can influence the courts approach in applying the applicable to the facts of the case. There is also the real likelihood of the impartiality of the court being rendered suspect when it decides the case on a point it raised suo motu without giving the parties the opportunity to address it on that point. Finally, there is need to restrain the exercise of judicial power in that manner so as to avoid encouraging the development of a regime in which cases are routinely decided on issues not within the contemplation of the parties or which they have not had prior notice of or on grounds they have not joined issues on.
It is clear from the tenor of the arguments of both sides in the proceedings at the lower court that they did not dispute that exhibit A was part of the evidence before the trial customary court even though the record of the evidence of that court does not show when and how it was admitted. Considering the crucial effect it had on the outcome of the proceedings at the trial customary court, if the respondent herein, who felt dissatisfied with the judgment of that court and appealed through his counsel against it to the lower court, had any reason to dispute that exhibit A on which the judgment was based, was never tendered and admitted in evidence at the trial and therefore never formed part of the evidence of the trial proceeding, he would have raised it as a ground of the appeal to the lower court. It was not a ground of the appeal and was never argued under any ground or issue in the appeal. Equally, the authenticity or existence of exhibit A was never disputed by any of the parties to the appeal at the lower court. It was not a ground of the appeal and was never argued under any ground or issue in the appeal. For the above reasons, I declare as null and void the decision of the lower court that exhibit A was not admitted as part of the evidence at the trial customary court and that it was a fictitious document which existed outside the knowledge and approval of HRH Eze A. Amadi. The finding of fact by the lower court that exhibit A was illegally made and inserted into the court file is also hereby declared a nullity and is accordingly set aside. The lower court was therefore wrong to have refused to accord any probative value to exhibit A.
The argument of Learned Counsel for the respondent that the lower court did evaluate exhibit A is with due respects not correct. A determination of whether a document should be used or relied on as evidence in a case cannot by any stretch of imagination be treated as evaluation of that document as evidence. In the face of the express decision of the lower court not to accord the document any probative value, it becomes idle and meaningless to even suggest that the document was evaluated. The lower court clearly refused to use it as an evaluative fact.
In the light of the foregoing I resolve issue No. 1 in favour of the appellant. I will now consider the second issue of whether the lower court applied any native law and custom not proven by evidence or judicially noticed and if it did, was such application justified.
Learned Counsel for the appellant has argued that the respondent as plaintiff in the trial customary court did not base his claim or any part of his case at the trial court on any rule of Edda Achara or Ebia Unuhu customary law. He did not assert or allege any such rule of customary law as the basis of any aspect of his case and led no evidence of the existence of any particular rule of customary law. According to Learned Counsel, even though non of the parties relied on any rule of customary law or proved the existence of any rule of customary law, the lower court relied on and applied certain rules of Idda Achara customary law for its judgment. Learned counsel for the appellant referred to the particular parts of the judgment that relied on and applied such rules of customary law as follows –
(i) The holding that “In Izzi, Ebia and Ede Echara customary law non performance of Jioke and planting of Mgbaja will not deprive a party of the perpetual ownership of a particular land so long as the “Ihu Okpa” ceremony i.e. traditional leasing of land was performed on that particular land for the owner.”
(ii) The holding that “according to Izzi custom and tradition the traditional lease of and performance by the elders of Ebia is more superior to that effected by the Ukes and Okoros of Ede Echara village. This is because Ebia Ukes or Elders are higher in hierarchy.”
(iii) The holding that “traditional lease of land is performed only once in a particular land unless as otherwise directed by the Ukes of Ebia nuhu.”
Learned Counsel for the respondent has argued in reply that there is sufficient evidence of the native laws and custom on record of the trial court to justify their application by the trial court, that the respondent in paragraph 3 of his statement of claim stated that the Suitland is “allocated” to his late father, Nwizi Iji in accordance with the traditional laws and custom of Ebyia, both in evidence-in-chief and under cross-examination of witnesses of both sides evidence of native laws and custom abound as evidence of the native laws and custom guiding ownership and possession of land in Ede Echara and Ebyia unuphu.
Learned Counsel referred to the evidence of PW4 that “he was one of those” who performed the customary rites of the land, the evidence of Iwe Okemini Igwe that the appellant’s late father was not buried in the Suitland “because the appellant’s father made Jioke and buried his Mgbaja at another land where he was buried,” the evidence of PW4 that Ogwogu Nwalegu performed the “ukpara” part of the customary grant of the Suitland to the came to respondent’s father and exhibit B concerning the fact that “when the matters came to traditional oath taking he had to invite the elders from Ebyia.”
Learned Counsel for the respondent further argued that the lower court was right to have gathered the evidence of custom from the claim as framed and the testimonies of witnesses, the Evidence Act does not apply to customary courts and so the reliance on S. 14 of the Evidence Act by Learned Counsel for the appellant is misconceived and that the rules of customary law applicable in an area do not require proof before the customary court in that area “just as ordinary laws apply in the superior courts without need for proof.”
Let me now consider these arguments. I think I should start with the more fundamental issue of whether the rules of customary law applicable in an area require proof before a customary or native court having jurisdiction over that area. The issue was raised by Learned Counsel for the respondent. It is more fundamental than any other argument under this issue because if the applicable rule of customary law applied by the lower court does not require proof then it becomes non sequitur to argue that the rules of customary law applied by the lower court were not proved by evidence. The reasoning behind this submission of learned counsel for the respondent as I understand from his argument is that:
(i) customary law is constituted by the customs of a community that has from tradition, long and unvarying habit of usage, practice, adoption and general acceptance by members of that area become regarded as binding upon them and
(ii) by virtue of S. 12(1)(d) of the Customary Court Law Cap 47 Revised Laws of Ebonyi State, the law to be applied in any matter by a Customary Court is the customary law prevailing or applicable within the geographical or territorial area of the jurisdiction of the customary court and since by virtue of S. 5 (4)(b) of the Ebonyi State Customary Court Law (supra), “no person shall be appointed a member of the court unless the person “has wide knowledge of the customary law and usages prevailing in the area of jurisdiction of that court.” The rule of customary law applicable to the peculiar facts of a case should be known by the members and should not require proof. In other words the members of customary courts, by virtue of their appointment as such, are presumed to have wide knowledge of the customary law applicable within the area of the jurisdiction of the court, and therefore, just as Judges of other courts like magistrate courts and the superior courts are presumed to know the law or have the law embedded in their chest, so also are judges of customary courts presumed to know the customary law applicable to certain situations in the area within their jurisdiction.
There is nothing in the Customary Courts Law of Ebonyi State expressly requiring proof of customary law in customary courts or stating how the rule of customary law applicable in cases before customary court shall be determined. I agree with the submission of Learned Counsel for the respondent that S. 14 (1) of the Evidence Act (now S. 16 (1) of the 2011 Evidence Act) is for now not applicable to judicial proceedings in any civil cause or matter in a customary court. This is because S. 256(1) (c) of the 2011 Evidence Act expressly excludes or oust the application of the Evidence Act to such proceedings. It states that –
“This act shall apply to all judicial proceedings in or before any court established in the Federal Republic of Nigeria but it shall not apply to
(a) proceeding before an arbitrator;
(b) a field general court martial; or
(c) judicial proceeding in any civil cause or matter in or before any Sharia Court of Appeal, Customary Court of Appeal, Area Court or Customary Court, unless any authority empowered to do so under the Constitution, by order published in the Gazette, confers upon any or all Sharia Court of Appeal, Customary Courts of Appeal, Area Courts or Customary Courts in the Federal Capital Territory, Abuja or a State, as the case may be, power to enforce any or all provisions of this Act.”
See KUUSU V. UDOM (1990) 2 SC 138 where the Supreme Court applied similar provisions and held per Karibi-Whyte JSC that “in the recent case of LATUNDE V. LAJINFIN (1989) 5 SCNJ 59 at 65-66 (1989) 3 NWLR (pt 108) 177 this court stated unequivocally that by Section 1 sub-section 4(c) of the Evidence Act the provisions of the Act do not apply to proceedings in customary courts unless there is specific provision to that effect.
The direct legal effect of this exclusion or ouster is that Ss 16 (1) of the 2011 Evidence Act which provides that “a custom may be adopted as part of the law governing a particular set of circumstances if it can be judicially noticed or can be proved to exist by evidence, is not applicable to judicial proceedings in civil cases in customary courts. The words prescribing the ouster or exclusion is couched in mandatory terms. This means that the court has no discretion in the matter. It is an absolute exclusion. So in judicial proceeding before magistrate courts and superior courts, the condition for the application of a rule of customary law to a particular set of circumstances is that it must be either – judicially noticeable or proved by evidence to exist. So that judicial authorities on the application of customary law in those proceedings are clearly distinguishable and therefore cannot be binding precedent in cases involving the application of customary law in judicial proceedings in customary courts. Since the Evidence Act cannot be used or relied on to determine the applicable rule of customary law in civil cases in customary courts and the customary court law makes no provision for such determination, how can the appropriate legal or judicial approach to the determination of the question be arrived at and what is or should be the appropriate approach. The Supreme Court was faced with this same question in KUUSU V. UDOM (supra). In that case, during judicial proceedings in a civil case before an Area Court oral evidence of certain witnesses was taken at the locus in quo without oath or affirmation contrary to S. 179 of the Evidence Act as applicable then, which required that oral evidence in any proceedings must be given upon oath or affirmation administered in accordance with the Oaths and Affirmation Ordinance. The witnesses were also not cross-examined or re-examined. On appeal to the High Court on this ground inter alia, it held that the said oral testimonies relied on by the trial Area court were no evidence as there were taken in violation of S. 179 of the Evidence Act. On appeal to this court, it was held by this court that the Area court was not bound by the Evidence Act and so non compliance with the Act in taking evidence did not affect the evidence and the decision that is based on it. This decision was upheld by the Supreme Court on a further appeal to it. The Supreme Court had to consider what law governed the taking of evidence in judicial proceedings in civil cases in Area courts since the Evidence Act is not applicable to judicial proceedings in civil cases in those courts. The court looked at Order 1 rule 1 (a) of the Area Courts (Civil Procedure) Rules 1972 which provided that “All Evidence given before a court and the method by which such evidence, may be in accordance with the native law and custom applicable to the cause or matter under consideration. It was found as a fact that there was no evidence of the existence of any rule of native law and custom of the locality on the taking of evidence in civil proceedings in the Area court. The Supreme Court held that the procedure adopted in taking the evidence was proper since it is fair, will not cause a miscarriage of justice, accords with common sense and is practical. In considering whether the practice and procedure of the customary court in dealing with any matter including taking of evidence is proper or not, the judicial approach established by a long line of cases over time is to look at the peculiar facts of the case, consider the substance and not the form of what is done, and if there is no legislation or rule of customary law prescribing a specific procedure, allow such procedure as is pragmatic, in accord with common sense and is not prejudicial to a fair trial and will not cause miscarriage of justice. It follows from the foregoing that the approach to be used in determining the applicable rule of customary law will be such that will not be prejudicial to a fair trial, will not cause a miscarriage of justice, is reasonable in the circumstances and is pragmatic.
Should the members of the customary court apply rules of customary law to a particular set of circumstances from their wide knowledge of the prevailing customary law irrespective of the fact that a party did not rely on it for his or her case and there is no evidence proving its existence and applicability in the circumstances of the case or must a rule of customary law be proven by evidence before it can be applied by members of the court even if they know from their wide knowledge of the prevailing rules of customary law that a certain rule of customary law exists that can be applied to the facts in issue in the case to do justice. S. 5 (4)(b) of Ebonyi State Customary Court Law by requiring wide knowledge of the customary law and usages prevailing in the area of jurisdiction of a customary court as a mandatory pre-condition for appointment as a member of the court and by prohibiting the appointment of a person without such knowledge gives an impression that it intends that the rule of customary law applicable to a set of circumstance should be known and therefore applied by the members of the court and should not require proof by evidence. There exist some judicial opinion that where a customary court is presided over by a native of the area of jurisdiction of the court or by a person having knowledge of the customary law of that area, proof by evidence of the existence of a rule of customary law is not obligatory. Example of such decisions include the decisions of the High Courts in EHIGIE V. EHIGIE (1961)1 All NLR 842 and EHIOGHAE V. EHIOGHAE (1964) NMLR 30. The Learned author B.O. Nwabueze in Nigerian Land Law (1982 Edition, Nwamife, Enugu, page 394) described these decision as being in accord with reason and principle.
In the traditional system of adjudication or dispute resolution, the trial process concerned itself with the presentation of the facts of the case followed by the decision applying a particular rule of customary law. The trial process does not involve any consideration of whether any rule of customary law exist or is proven to exist. Members of the community are presumed to have knowledge of the prevailing customary law, so the existence of a rule of customary law is usually not in issue. In the non traditional system of adjudication or dispute resolution, customary law is applied not only by those who have knowledge of its existence but also by those who have no knowledge of its existence. At some stage of the adjudication process disputes involving the application of the customary law of a particular community may come before a court constituted by judges who are non natives of that community and have no knowledge of the rules of customary law prevailing in that community. While the members of the customary court, where the case originated, may have wide knowledge of the prevailing customary law in their area of jurisdiction, the judges of the customary court of Appeal before whom such matter comes on appeal may not have such knowledge. Even though S.247 (b) of the 1999 Constitution requires that for the purpose of hearing appeals from the decisions of the Customary Court of Appeal, this court shall be constituted by not less than 3 of its Judges who are learned in Customary Law, the common experience is that the judges are generally learned in the principles and technique of application of Customary law but do not have knowledge of every rule of customary law prevailing in every area. The Judges of the Supreme Court that will deal with any final appeal on the matter may not have knowledge of the prevailing customary law in that community. Yet the said appellate courts, in the appeals before them may have to find out whether the trial court’s application of a rule of customary law to a particular set of facts is proper and satisfies the justice of the case. How can these courts carry out this duty without a mechanism outside the “wide knowledge” of the members of the customary court, that they can rely on to find out if the decision applying a rule of customary law is correct or to find out if such rule is in existence or prevailing in that community. Such mechanism may be a code or compendium of the rules of customary law applicable in the community, previous decisions of courts that such rule of customary law exists in that community or evidence given at the trial proving the existence of such rule of customary law in that community. In our present case there is no written code or compendium of the rules of customary law prevailing in the Ede Achara community and our attention has not been drawn to any previous decisions of courts including Ogbaga customary court and the lower court applying the rules of customary law the lower court relied on its judgment.
The existence of such a code or compendium of all the rules of customary law prevailing in Ede Achara community would render such rules easily accessible and ascertainable, and provide a ready reference material for verifying or cross-checking whether the application of a rule of customary law to certain facts is correct or valid. Where as in this case, no such compendium is shown to exist and no previous court decisions applying the said rules of customary law have been shown to exist, it becomes clear that the only means by which this court can find out if the rules of customary law relied on exist or were correctly applied is evidence showing that such rules exist and the circumstances of their application. Furthermore, even amongst members of the customary court, some, if not all, are not likely to have a complete knowledge of all the rules of customary law prevailing in the area of jurisdiction of their court. This is because the multiplicity of rules of customary law and even variants of a particular rule of customary law within the area of jurisdiction of a customary court make it very difficult if not impossible for a member of such court to have complete knowledge of all rules. It is a notorious fact that customary law varies from village to village, and, even where a rule of customary law is commonly applied by several villages, variants of such rule may exist in the different villages. The proposition that there is no need to prove by evidence the existence of any rule of customary law prevailing in the area of jurisdiction of a customary court because the members have or are presumed to have wide knowledge of the customary law prevailing in that area is, in my view, not practicable for now and will certainly prejudicially affect the fair trial of cases and occasion miscarriage of justice in those cases. For now it is more practical, reasonable and in accord with common sense that a rule of customary law should be applied only if it can be proved to exist by evidence. The burden of proving the existence and applicability of such rule of customary law is on the party alleging its existence or the party who desires that the court give judgment as to any legal right or liability dependent on the existence of that rule of customary law. Therefore, a party who seeks to rely on a rule of customary law in a case, must state that he or she relies on it and prove its existence.
I will now proceed to find out, if there is evidence in the record of this appeal proving the existence of the rules of customary law relied on by the lower court in its judgment. As I had said herein, the respondent did not rely on the existence of any rule of Ede Achara customary law for his claim at the trial court and gave no evidence of the existence of any such rule of customary law. Non of the witnesses gave evidence of the existence of the said rules of customary law. The lower court was wrong to have found as a fact that those rules of custom exist. There was clearly no evidential foundation for those findings of facts. It is trite law that findings of facts must derive from the evidence before the court. Any finding of fact that is not supported by the evidence before the court is perverse and must be set aside. This is an appropriate situation for this court to interfere with a finding of fact by a lower court. See Bamgboye & Ors V Olarewaju (1991) 5 SC 104, Okoye & Anor v Obiaso & Ors (2010) 8 NWLR (Pt 1195) 145 (SC) Udengwu V Uzuegbu & Ors (2003) 7 SC 64.
Speaking more specifically, where the existence of a rule of customary law is by law required to be proved by evidence, a court cannot apply such a rule of customary law to the case before it in the absence of any evidence showing its existence and how it should be applied. The application of such a rule of customary law that has not been proven to exist and any decision resulting therefrom must be set aside.
For this reason, I hereby set aside the said findings of facts. The customary Court of Appeal was not justified in applying the rules of customary that had not been proven by evidence to exist in arriving at its decision. Therefore, issue No 2 is resolved in favour of the appellant.
I will now deal with the issue of whether the lower court was right in holding that the disputed land was not abandoned by the respondent’s father.
It is agreed by all sides that the Suitland was initially granted to the father of the respondent by the Ede Achara Community under a customary lease. The father of the respondent after occupying the Suitland for some time, in early 1945 left the village of Ede Achara to his native village, Okpuitumo where he lived permanently till his death. The respondent’s father did not return to the Suitland till his death. The respondent’s case was that when his father left the Suitland in 1945, he handed it over to the father of the appellant to take care of the land for him and that the appellant’s father occupied and lived on the Suitland as the respondent’s father’s caretaker or customary sub-tenant. The appellant is now living in the land by virtue of his father’s occupation of and dwelling in the land. The respondent also state that the appellant without his knowledge and consent sold a part of the Suitland to one Paul Anaga from Abiaji (another village) and that the respondent has refused to quit the Suitland. The appellant’s case on the other hand was that the respondent’s father did abandon the Suitland and as a result, the Suitland reverted to Ede Achara Community who then granted a customary lease of same to the appellant’s father. The determination of the case turned on the resolution of this point of dispute.
Igwe Okemini, a native of Ede Achara, testified that after the respondent’s father emigrated, the community of Ede Achara gave the Suitland to appellant’s father.
The respondent asked his witness why the community did not notify him before taking the disputed land. The witness responded that “the reason of not informing the plaintiff is that villages take land abandoned by whoever was living there.” DW3 and DW4 testified that the appellant’s father and the appellant have always been in occupation of the Suitland and that it belongs to the appellant. DW4 further testified that Eze Amadi summoned the village over this matter and that the decision reached in that meeting was that the Suitland belonged to the appellant. His exact testimony is as follows-
“On the day village was summoned at Eze Amadi’s compound as regarded land dispute between Nkwankwo and Oke Ogbonna. The decision reached was that village Eda Achara has given the land to Oke Nwovu and Nkwonshi Nwizi was advised to go that the land belong to Oke Nwovu. Too the village Eda Achara told Nkwonshi Nwizi that if the son want to live in this village Eda Achara, village will accept him and paidland fee for him to live. The same Nkwonshi Nwizi arrested Oke Ogbonna with police over the same land matter. The villagers order then the whole villagers and all went to police came to see the land and after investigation, the police advised Nkwonshi Nwizi to leave the land and that the land belong to Oke Ogbonna. After police the next thing I saw is court action.” (sic)
Eze Amadi, a traditional ruler in Ede Achara testified that nobody gave the appellant’s father the Suitland. He stated thus, “As a traditional ruler I invited Ikpozu Nwede, Okemini Igwe and late Nwankwo Okpaga and all of them confirmed that this land in dispute belong to Nwizi Iji and not Oke Nwovu.” The record of appeal show that Okemini Igwe and Ikpozu Nwede were asked to confirm what Eze Amadi said. The two stated that what Eze Amadi said is not correct and they stated that the land was given to Oke Nwovu and not Nwizi Iji. The record of this appeal at page 18 herein state thus
“The court ask Ikpozu Nwodu to tell the court what he know about the land indispute hence he was the mentioned by Eze A. Amadi Ikpozu confirmed that the land in dispute has been given to Oke Nwovu language immediately Nwizi Iji left the land so that Ezza people will not occupy. Also another land near their disputed land was also given to Ajibo Ukwa so that Ezza people will not occupy it.” (sic)
Eze Amadi tendered exhibit B. Another witness, Martin Nwofoke testified that the land has always been in the exclusive occupation of the appellant’s father. Nwagbali Nwiboko testified that he was among those who performed the traditional rites of lease of the Suitland to the respondent’s father. The rites (Ukpara) were performed by one Egwogu Nwalegu. Under cross-examination by court, the respondent stated that when government paid to appellant’s father compensation money for a part of the land the Government built a water reservoir on, he brought the money to the respondent who divided it into three parts and gave one part to the appellant’s father. He further stated under cross-examination that appellant’s father had, more than 5 years before then, sold part of the Suitland. Under cross-examination by the court, the appellant stated that –
“Have your father sold part of the land before he died. Answer yes. Have many years age your father sold the part of the disputed land before he died. Answer it is about twenty years ago. Do you know that your father pay money release from economic tree one the land to the defendant? Answered Nkwonshi Nwizi came to his father about economic trees and my father Oke Nwovu paid him money of economic tree and he told Nwankwo Nwizi blessed my father and he Nwankwo told my father that from today my father is the owner of economic tree on the disputed land.” (sic)
On the basis of these evidence the trial customary court rendered judgment in favour of the appellant on the basis that-
1. That the parcel of land in question is near water recourses opposite high way road to Enugu thus boundary between Izzi and Ezza clain and due to cherish war, the first occupant Nwizi Iji’s father left the parcel of land early 1945 to Okpuitumo village.
2. That the part of the land was sold by the father of the defendant before he died February, in 1996 showing accentually that the village gave him the land confirmed by two Uke’s inspection day, the plaintiff could not show the court boundary of the land in dispute but the defendant showing actually that the plaintiff left the parcel of land sixty years ago that made village revoke the land and give it to the defendant father.
3. That on inspection day, the plaintiff could not show the court boundary of the land in dispute but the defendant showing actually that the plaintiff left the parcel of land sixty years ago that made the village revoke the land and give it to the defendant father.
4. That the written exhibit A & B tendered to the court showed that the whole community including Eze A. Amadi and lies cabinet indorsed that the parcel of land in dispute belong to the defendant father Oke Nwovu on 29th March, 2008.
5. That the defendant Ogbonna oke has no case to answer because it is the village Edda Achara gave the father of the defendant the disputed parcel of land and hence the plaintiff is advised not to trespass on the land any more thus it is tended property of Ogbonna Oke as regarded to seed on the edict (law to be administered) page 41 of Ebonyi Customary Court Rules in relation to Izzi custom.”
The Customary Court of Appeal reversed the above decision of the trial customary court holding that –
“When compensation was paid by the government in respect of the land Oke Nwovu the father of the respondent returned the money to him which he divided into three and gave one part to the father of the respondent Oke Nwovu. It is also in evidence that it was after the demise of Oke Nwovu that the respondent refused to make returns of the proceeds of the land to the appellant and even sold some parts. It is this action of the respondent which triggered off the suit the subject matter of the appeal. In my humble view there is no indication that the appellant in question abandoned the land. The appellant acted timously immediately the respondent started acting contrary to the spirit of caretaker ship by filing an action in court which gave rise to this appeal.”
It is noteworthy that the respondent in the court below is the appellant herein and the appellant in the said court is the respondent in this appeal. Learned counsel for the appellant argued under issue No 3 of the appellants brief against the decision of the lower court that the respondent’s father did not abandon the Suitland. According to Learned counsel, the respondent’s father who was a customary tenant of Ede Achara village on the Suitland migrated from Ede Achara to his native village, Nduba Okpuitumo where he lived, died and was buried and never returned to the Suitland. He pointed out that –
“The father of the Respondent did not introduce anybody to the villagers as his agent or caretaker over the disputed land. He did not visit the disputed land even once or more to show his continued interest over the disputed land. He did not send any of his children to oversee the disputed land. He died and was buried at Ndibam Okpuitumo where he migrated and the Respondent lives there up to date and says he is a native there. He has never farmed there or done anything as an act of possession.”
According to Learned Counsel the action of the respondent’s father and the fact that he left Ede Achara for his village because he was being maltreated and victimized by the Ede Achara people show that he had abandoned the Suitland.
Learned counsel for the respondent argued in reply that the respondent’s father did not just abandon the Suitland. He appointed “his relative and in-law” (appellant’s father) to take care of the land. According to Learned counsel, what has caused this problem was that when the respondent went to drop river sand on the land the appellant’s brother, Chukwuma Oke refused. Learned Counsel argued that the appellant’s father knew and recognized the overlordship of the respondent’s father that is why he took the compensation money paid to him by government for use of part of the Suitland to build a water reservoir to the respondent’s father who returned to him one third of the money. He argued further that the fact that appellant’s father may not have paid tribute to the respondent’s father did not in any way extinguish the overlordship of the respondent’s father especially considering that the appellant’s father took all his traditional titles of Jioke and Mgbaja on another land in the village and that upon his death he was buried on another piece of land and not on the Suitland.
Let me quickly point out that the above part of the judgment of the lower court reproduced at page 31 of this judgment, give the impression that Oke Nwovu, the appellant’s father while alive, was making return of proceeds from the Suitland to the respondent and that after his death, the appellant has refused to continue the practice. This is not borne out by the evidence in the record of the proceedings of the trial customary court. There is no evidence that the appellant’s father made returns of proceeds from the land to the respondent apart from the claim of the respondent that appellant’s father took compensation money for part of the Suitland to the respondent’s father. There is evidence from respondent and his witness, Dw3, that the appellant’s father sold part of the Suitland 5 years before his death to one Paul Anaga from Abiaji. There is no evidence that respondent sold part of the Suitland. The decision of the lower court that it is the action of the appellant in refusing to make returns of proceeds from the Suitland to the respondent and his sale of parts of the Suitland that triggered the suit at the trial customary court is not supported by the evidence. Learned counsel for the respondent has argued that “what caused problem was when he went to drop river sand on the land and Chukwuma Oke the brother of appellant refused.” The respondent in his testimony stated why he filed the suit in the trial customary court. The record of his testimony at the trial customary court state that “the plaintiff told the court that Ogbonna Oke, the defendant is living in my father’s land and refuse to evacuate the land. The plaintiff said that is why I sue Ogbonna to court.” Under cross-examination by the trial court respondent said “left the land to my relative and in-law but caused problem is when I went to drop river sand on the land and Chukwuemeka Oke refused.” (sic)
I think it would be useful to consider how the lower court came to the conclusion that there is no indication that the respondent’s father or the respondent abandoned the Suitland. It came to this conclusion upon restating the testimony of the respondent that the appellant’s father took compensation money to his father and stating that there is evidence that appellant refused to make return of proceeds of the land to the respondent and that there is evidence that he sold parts of the Suitland. As I had held herein, there is no evidence that the respondent sold part of the Suitland or refused to make returns of proceeds of the land. The lower court did not consider the other evidence in the case concerning this matter. Such evidence include the testimonies of the appellant and his witnesses. The lower court did not weigh or balance the evidence on one side against that of the other side. It just relied on a single item of the evidence of the respondent in deciding the focal point of the entire case. The lower court gave no reason why it did not consider the evidence of the other side. It should have put the evidence of each side on the imaginary judicial scale to determine which side has the preponderance of evidence or which version of evidence is more probable. The need for this balancing becomes more acute, where as in this case the testimony relied on by the court is not the testimony of a person who saw or participated in the transaction. The respondent did not state how he came by the information that the appellant’s father took compensation money for part of the suit land to his father. He did not state that he was present when this happened. He did not state that he was informed by his father. So how did he come by the story? It is obvious from his testimony that the money was not paid to him or through him. The evidence is clearly hearsay evidence even though there is no evidence of the existence of any rule of customary law prohibiting the admissibility of hearsay evidence in cases before customary courts. The same applies to the testimony of the appellant under cross-examination by the court that his father paid for and became the absolute owner of the economic trees on the land. The facts alleged in these testimonies remain in the realm of conjecture and probability. Even if the lower court decided to take the risk of relying on such hearsay testimony, it should not have chosen to simply rely on such a testimony without reference to some other evidence to determine how reasonably probable the story is. The reliance on such evidence could have been justified after coming to a reasonable conclusion that it is reasonably probable. The lower court did not do these. It rather restated what the respondent said concerning the compensation money and reached its conclusion on that basis without assessing its reasonable probability. This approach is clearly wrong as it is unreasonable.
The evidence that were direct and reasonably believable in the sense that they are testimonies of witnesses concerning matters which were not in dispute as both sides agreed on them or which they saw or heard or had personal knowledge of, on the basis of which the lower court would have determined the issue of how the respondent’s father left Ede Achara were in the record of the proceedings of the trial customary court. Such evidence include the evidence that-
(a) respondent’s father was a customary tenant of Ede Achara community, the owners of the Suitland.
(b) Respondent’s father emigrated from Ede Achara to Okpuitimuo
(c) Where a customary tenant leave the land for a long time without returning, it reverts to the community owning the land, who can grant the land to another person
(d) The respondent’s father went away and never returned. He lived, died and was buried in his home land at Okputimuo.
(e) Ede Achara community gave the land to the appellant’s father after the emigration of the respondent’s father.
(f) Respondent’s father lived on the land for over 50 years and the family is still living on the land. The appellant was born and raised in their homestead on the Suitland.
(g) The respondent’s father exercised acts of ownership like sale of parts of the land without challenge.
(h) The traditional ruler of Nkaleke Echara Nuphu and his cabinet traditionally inquired into this matter and tried to resolve same. Their findings and resolutions are contained in exhibit A. Therein it is restated in paragraph 5 that -“That according to Izzi culture and tradition anybody who vacates his home to another community for such a long period of time have automatically lost the ownership of the place to the entire village who will relocate it to another person.”
(i) In paragraph 8 therein, the respondent was asked to keep off the Suitland.
(j) Subsequently the same traditional ruler of Nkaleke Echara Unuphu community produced a document, exhibit B, wherein he found in favour of the respondent.
(k) The elders whom the said traditional ruler mentioned as those who can confirm his finding in exhibit B testified contradicting him stating that the Suitland was given by the community to the appellant’s father. This can be clearly seen from the following part of the record of the proceedings of the trial customary court.
“As a traditional ruler, I invited Ikpozu Nwede Okemini Igwe and late Nwankwo Okpaga and all of them confirmed that this land ind ispute belong to Nwizi Iji and not Oke Nwovu though my question to them about who owns the land in dispute. Okemini Igwe who was mentioned by Eze A. Amadi was asked to confirm Eze A. Amadi’s statement is false and that I Okemini Igwe as Uke in this village follow give this dispute land to Oke Nwovu. The court ask Ikpozu Nwodu to tell the court what he know about the land in dispute hence he was the mentioned by Eze A. Amadi Ikpozu confirmed that the land in dispute has been given to Oke Nwovu long ago immediately Nwizi Iji left the land so that Ezza people will not occupy. Also another land near their dispute land was also given to Ajibo Ukwa so that Ezza people will not occupy it.”
The evidence relied on by the respondent in support of his case are just that-
(a) his father when he was migrating to his native land, left the Suitland in the care of the appellant’s father.
(b) The appellant’s father upon receipt of the compensation money from Government for the use of part of the Suitland to build water reservoir, took the compensation money to the respondent’s father who took two third of the money and gave one third to the appellant’s father.
These pieces of evidence are not from persons who witnessed any of these events. The respondent testified that he is 50 years of age. This means that he was born about the same period the father migrated to their native village. Therefore he was certainly not in a position to know about how the father left the Suitland. He did not state how he came by the information of the above events. As I had said, he did not state that his father told him. The source of his information remain unexplained. Some of the elders, from whom, Eze Amadi said he derived the information on how that the respondent’s father did handover the land to the appellant’s father, have denied saying so. In any case nobody testified that he personally witnessed or was informed by either appellant’s father or respondent’s father of these events. The stories have no foundation or are at best hearsay. Although there is no law or any rule of Ede Achara customary law prohibiting the admissibility of hearsay evidence in cases before a customary court, it is not reasonable to rely on such evidence. The use of such evidence is likely to prejudice the fair trial of the case and occasion miscarriage of justice. This is so especially in the peculiar circumstances of this case where the appellant’s father and the respondent’s father, the only two people who are supposed to have had personal knowledge of the transaction were long dead before the time of the trial, thereby making it impossible to rebut or confirm the truth of the testimony. In any case it is the respondent who asserted that the transactions took place. Therefore, common sense and reason demands that he should prove the assertion. He did not do so. It was wrong and unreasonable for the lower court to have relied on these statements of the respondent that appellant’s father brought compensation money to his father, to decide the focal point of the entire case, especially when it was glaring that the preponderance of the whole evidence renders such testimony improbable. If the lower court had considered the totality of the evidence in the case, it would certainly have come to a different conclusion. Its conclusion is the result of relying on the said terse statement of the respondent. I have considered the totality of the evidence on record, it is my view that the preponderance of the evidence show that the appellant’s father was given the Suitland by the owners of the land, after the respondent’s father emigrated to his native land and never returned to the Suitland.
Let me now deal with the last issue of whether there was a proper evaluation of the evidence of the parties on record by the lower court in support of its decision.
The lower court rightly held that the trial customary court did not consider the evidence of Nwagbali Nwiboko, that of HRH Eze A. Amadi and exhibit B in its judgment and therefore did not properly evaluate the evidence before it in arriving at its judgment. It is obvious that the trial customary court did not at all review and evaluate the entire evidence before it.
It simply pronounced judgment in favour of the appellant that he is owner of the Suitland as property inherited from his father Oke Nwovu, on the basis of certain findings it proceeded to make on the evidence. Considering that a customary court is, apart from its chairman, constituted by persons with no professional legal training, who are not Lawyers, it will not be realistic to expect such a court to comply with the legal requirement that the judgment must show that the court considered all the evidence before it and did evaluate same before it make its findings and reaching its conclusions supported by the evidence. The minimum legal standards of adjudication in courts manned purely by legal practitioners cannot be attained by customary courts as presently constituted. In dealing with the proceedings of customary courts, it is more realistic to consider the substance and not the form and consider it, not in isolated patches, but the entire proceedings as a whole to do substantial justice. Just as it may be difficult to determine the issues in controversy from only the originating process commencing the suit, it may not be easy to see the justification in the decisions of such court by reading only the judgment without other parts of the proceedings. The courts in a long line of cases have restated that the approach is to read the entire proceedings of the court as a whole to determine any issue arising therefrom. See EKPA & ORS V. UTONG & ORS (1991) 7 SC (pt. 11) 52, GAMBA V. YAHYA (2007) 145 LRCN 549 and OSU & ORS V. IGIRI & ORS (1988) All NLR 129 or (1988)2 SC 24. In ALAYE V. LOLOJUDO (1988) NWLR (pt 81) 129 the Supreme Court per Oputa JSC held that “it is a notorious fact that under the Native Court’s Ordinance and in Native Court practice, what is aimed at is substantial justice which are not to be fettered by technical rules of procedure.” In KUUSU V. UDOM (supra), the Supreme Court per Nnamani JSC held that “It is clear that the practice and procedure of native courts do not agree with those of High courts which adopt English procedure, but such practice and procedure should not be condemned on that account unless they are found to be prejudicial to a fair trial and likely to lead to a miscarriage of justice.”
In ORUGBO & ANOR V. UNA & ORS (2002) 9-10 SC 61, the same court per Tobi JSC held that “Once an appellate court comes to the conclusion that from the totality of the procedure adopted, substantial justice was done, the court must uphold the proceedings.” In IKPANG & ORS V. EDOHO & ANOR (1978) 6-7 SC (Reprint) 155 the Supreme Court per Aniagolu JSC stated that the guidelines for dealing with the proceedings of customary courts have been settled in the following principles –
(1). “in respect of the claims before those courts it is necessary to look at the substance rather than at the form of the writ. One, therefore, should not examine those writs “microscopically” or with the finery of a tooth-combe.”
2. “On the question of procedure adopted by those courts in arriving at their decision, subject, we must add, to the overriding principle that they must not be allowed to so fundamentally depart from accepted procedures in deciding their cases that they occasion injustice to either party to a case, an appeal court must not be too strict in regard to matters of procedure adopted in those courts.”
3. “generally, great latitude must be given to, and a broad interpretation placed upon native court cases – so that the entire proceedings, the evidence of the parties and the judgment must be examined in Order to determine what the Native or customary court case was all about. The whole conception and result of the proceedings will show what the parties are fighting for, the matters upon which issues are joined, even if technically framed in an inappropriate language from the standpoint of legal technocrats, and the decision of the Native or customary court on those issues.”
So what the customary court of Appeal should have done is to find out if the judgment of the trial customary court is supported by the evidence in the case and not to simply embark on an evaluation of the evidence under the excuse that the trial Customary Court did not properly evaluate the evidence. This approach of the lower court is not in accordance with the above restated judicially established principles that in dealing with the proceedings of customary courts, one should look at the substance and not the form, considering, with great latitude, the proceedings as a whole, ensuring only that what is done does not occasion a miscarriage of justice. As the Supreme Court said in KUUSU V. UDOM (supra) the practice and procedure of the customary court should not be condemned for not following the practice and procedure of courts applying English type procedure like the High Court, unless they are found to be prejudicial to a fair trial and likely to lead to miscarriage of justice.
If the judgment is supported by the evidence on record then there would be no need for evaluation of the evidence by the appellate court. As I have shown above when dealing with issue No III, the preponderance of evidence support the judgment of the trial customary court. The testimonies of the respondent and Eze Amadi were in the light of the totality of the evidence not reasonably probable.
The lower Court was wrong to have excluded exhibit A from the evidence, refused to rely on it and rather relied on exhibit B to arrive at its decision. Exhibit A is the findings and resolutions of the cabinet of Nkaleke Echara Umuhu community. The cabinet consists of HRH Eze A. Amadi and other members of the cabinet representing the community. All of them signed the said document. Exhibit A clearly supports the decision of the trial customary court. Exhibit B relied on by the Customary Court of Appeal was made by Eze Amadi who chaired the cabinet that made the findings and resolution in exhibit A. He signed exhibit A. Exhibit B was produced by him about 5 months after exhibit A. In exhibit B, he claimed to have pronounced judgment in favour of the respondent. In his testimony in Court, he said he invited Ikpozu Nwede, Okemini Igwe and late Nwankwo Okpaga to the proceedings in respect of exhibit B, and that they all confirmed that the Suitland belonged to the respondent’s father. But as the record of the proceedings of the trial Customary Court show, when Okemini Igwe and Ikpozu Nwede were asked in Court, they denied what HRH Eze Amadi said and rather stated that their decision was that the land belonged to the appellant’s father. Their answer rendered exhibit B a false and unreliable document. Inspite of this glaring evidence of the false nature of exhibit B, the customary court of Appeal preferred to rely totally on it to make findings of fact and arrive at its judgment.
Having chosen to embark on an unnecessary evaluation of the evidence, the customary court of Appeal should have dispassionately considered the totality of the evidence led by all sides in the case. An evaluation goes beyond restating the evidence led by each side. It involves also an appraisal, assessment or analysis of the evidence on each issue determined in the case. An evaluation must demonstrate the view of the court on the probative value of each evidence and the preponderance of evidence on each issue tried in the case. What the customary court of Appeal did amounts to no evaluation. It merely restated the evidence led by both sides, then stated that “I have read carefully the evidence placed before the trial court which include both oral and documentary evidence.” After this statement, it proceeded to determine the point of jurisdiction raised before it, stated that the trial court did not consider the evidence of Nwagbali Nwiboko and exhibit B, reproduced some portions of exhibit B, stated why it will exclude exhibit A and refused to accord it any probative value, then stated that it was now going to proceed with the evaluation of the evidence. Thereafter it restated the law on evaluation of evidence. Immediately after this restatement, it stated that “in view of the fact that the findings of fact of the majority judgment are perverse, unreasonable and not supported by the overwhelming evidence in the court, I hereby set aside the findings of fact in the majority judgment …” It then proceeded to make its own findings of fact. This cannot be properly described as an evaluation of evidence. The customary Court of Appeal clearly fell into the same error it found the trial customary court guilty of. It did not evaluate the evidence at all, not to talk of not having done so properly.
It is desirable that the evaluation of the evidence in a case should be preceded by the court directing itself as to who has the burden of proof of the claim. This is because the primary purpose of the evaluation of evidence is to find out whether the claim is proved on the evidence. Furthermore the evaluation will be directionless and without purpose if it is unknown who has what burden and standard of proof. If the lower court had directed itself on who has what burden and standard of proof in the case, it would have sensitized itself as to what is required to be done in terms of the evaluation of the evidence, it would have been conscious that what is required to be done is to find out if the burden and standard of proof is discharged by the party having the burden to do so. It is only an evaluation that proceeds on this basis that can have the prospect of being properly done. If the lower court directed itself as to who has the burden to prove the claim, it would have realized that the respondent had the burden to prove his claim and that he failed to discharge that duty on a preponderance of evidence.
Both sides agree that the appellant’s father and now the appellant have for over 50 years remained in undisturbed and exclusive possession of the Suitland. The appellant’s father had exercised acts of ownership of the Suitland by selling portions of it to some persons. These facts without more support the decision of the trial customary court. The respondent, as plaintiff at the trial customary court relied on evidence that is obviously hearsay, whose source he could not explain and which could not be supported by any other evidence to rebut the presumption of ownership arising from the above agreed facts and prove his claim. He clearly failed to rebut the said presumption or prove his claim. The appellant did not only rest on the facts of long, undisturbed exclusive possession and enjoyment of use of the Suitland and exercise of acts of ownership, he also showed by preponderance of evidence that Ede Achara community the owners of the Suitland, gave the land to his father, after the respondent’s father migrated from Ede Achara to his native land Okpuitumuo and abandoned the Suitland. For the above reasons, I resolve issue No. 4 in favour of the appellant.
On the whole, this appeal succeeds. It is meritorious. The judgment of the customary court of Appeal of Ebonyi state in Appeal No. CCA/10A/2009 delivered on 19th April, 2011 is hereby set aside. The majority judgment of the customary court of Ogbaga in suit No. OCC/05/08 delivered on 28th January, 2009 is hereby restored. The respondent shall pay cost of N70,000 to the appellant.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading the judgment of my learned brother, EMMANUEL AKOMAYE AGIM JCA before it was delivered. I agree with the reasoning and conclusion that the appeal has merit. I allow the appeal and abide by the consequential orders including the award of costs in favour of the appellant.
Appearances
Chief J.C. IfebunanduFor Appellant
AND
Luke O. Nkwegu Esq.For Respondent
