ETINYIN E.H. COCO-BASSEY & ANOR v. MR. PATRICK OFFONG BASSEY
(2017)LCN/10044(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of June, 2017
CA/C/271/2014
RATIO
JUDGMENT: WHETHER A JUDGE CAN EXERCISE HIS JUDICIAL DISCRETION ON EVIDENCE ADDUCED BEFORE ANOTHER JUDGE
It is a well settled fundamental principle, that the exercise of a judicial discretion by a judge has to be predicated upon evidence adduced before him. Thus, a judge is not competent to predicate any decision upon an evidence taken before another adjudicator unless there is a statutory provision permitting him to do so. See SHANU vs. AFRI BANK NIGERIA LIMITED (2003) ALL FWLR Cpt. 136) 823 @ 854 – 855 paragraphs H – A. See also GWARZO VS. COP (2014) LPELR – 23 470 (ca). EGHOBAMIEN VS. FEDERAL MORTGAGE BANK OF NIGERIA (2002) FWLR CPT 121) 1858. Most particularly, in the case of EGHOBAMIEN VS FMBN (supra), the Apex Court aptly reiterated the trite doctrine:
“It is palpably wrong to write a judgment on the evidence recorded by another Judge…” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
TRIAL DE NOVO: WHETHER WHEN A MATTER IS PART HEARD AND IT IS TAKEN OVER BY ANOTHER JUDGE OF THE COURT THE JUDGE MUST HEAR THE MATTER DE NOVO
By our procedural laws, it is essential that when a matter is part heard and it is taken over by another judge of the Court the judge must hear the matter de novo. The essence of this is to allow the trial judge the opportunity of carrying out his primary assignment of receiving evidence presented by parties and ascribing probative value thereto. The judge is privileged to do this because he sees, hears and observes the demeanour of the witnesses. In the case of MOGAJI & ORS. VS. ODOFIN & ORS. (1978) 4SC (Reprint) 53, 65 the Supreme Court per Fatayi-Williams, JSC (as he then was) held that:
“Before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accept and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the Plaintiff on one side of the scale and that of the Defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party; but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore in determining which is heavier, the Judge will naturally have regard to the following:
(a) Whether the evidence is admissible;
(b) Whether it is relevant;
(c) Where it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion, based on the evidence which he has accepted.”
From the foregoing established authority, a judge ought to start de novo the hearing of any case assigned to him. The learned trial Judge in the instant case, who did not hear evidence of witnesses cannot deliver justice by cropping record of evidence that was received by another judge to determine the case before him. It is for this and the fuller reasons advanced in the lead judgment that I too allow this appeal and I remit the case back to the Court below for it to be heard on merit de novo by another judge of the Court as ordered in the lead judgment. STEPHEN JONAH ADAH, J.C.A.
JUSTICES:
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
1. ETINYIN E.H. COCO-BASSEY
2. CHIEF OBONG BASSEY
(For and on behalf of the late Chief Coco-Bassey) – Appellant(s)
AND
MR. PATRICK OFFONG BASSEY – Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is consequent upon the judgment of the Cross River State High Court, delivered on December 31, 2013 in suit No. HC/361/1998. By the said decision, the Court below dismissed the Appellant’s claim and granted the Respondent’s counter claim.
BACKGROUND FACTS
The Appellants were originally the plaintiffs in the Court below. They commenced the instant action vide a writ of summons filed on 23/9/98, thereby seeking declaratory and injunction reliefs against the Respondent.
The originating writ of summons, was eventually amended on 02/3/2010. By the Amended writ of summons thereof, filed along with the Amended Statement of claim, the Appellants claimed against the Respondent the following reliefs:
(a) A declaration that the plaintiffs are entitled to statutory right of occupancy in respect of piece of parcel of land known as Ikot Mkpanam Company along Muritala Mohammed Highway Calabar.
(b) Perpetual injunction restraining the defendant by himself, his servants, privies, and or agents from trespassing on the aforesaid piece or parcel
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of land.
(c) N10 Million special and general damages for trespass.
By the Statement of Defence thereof dated and filed on 9/3/01, the Respondent not only denied the Appellants’ claim, but equally counter claimed, thus:
(i) A declaration of title to the land known as Ikot Anwatim and more particularly delineated in Survey Plan No TJ.CR 962 of 18th February 1978 and that the defendant’s family is entitled to a statutory right of occupancy over the said land.
(ii) A declaration that the Plaintiffs are trespassers on the defendant’s family land known as Ikot Anwatim situate off Muritala Mohammed Highway, Calabar and comprised in Survey Plan No TJ.CR 962 of 18th February 1978.
(iii) Perpetual injunction restraining the plaintiffs, their servants, workmen and/or agents and privies from trespassing or further entering into any part of the land known as Ikot Anwatim situate off Muritala Mohammed Highway, Calabar, or in any way interfering or dealing with the said land in any manner adverse to the right and interest of the defendant’s family.
(iv) Perpetual injunction restraining the 1st plaintiff from parading or howsoever describing
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himself as the village Head of Ikot Anwatim.
(v) N10 million naira as damages for trespass and incessant harassment of the defendant by the Plaintiffs and their agents.
By the further amended reply and defence to the counter claim, thereof, filed on 01/3/140, the Appellants vehemently denied the counter claim, viz:
17. The plaintiffs’ deny paragraph 39 of the defendant counter claim and state that the defendant claims are unknown to law and shall urge the Court to dismiss the counterclaim for being vexatious, frivolous and abuse the due process and the exercise in gold digging. See pages 212 – 215 of the Record.
The parties having filed and served their respective pleadings, the case eventually proceeded to trial. At the end of which, the Court below delivered the vexed judgment to the conclusive effect:
From the evidence given by both parties if weighed on a scale that of the defendant is more probable and I believe same.
Having found as above I hold that the Defendants’ family is the proper family to inherit the property of Ma Anwatim and not the claimant who presented conflicting originator of the land.
I have gone
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through the exhibits tendered by the parties, I accept the Survey plan of the Defendants as in plan number TJCR 962 of 18/2/78 and the Lease Agreement. tendered by the claimant amounts to act of trespass.
Whereof the claimants claim is hereby dismissed and I enter JUDGMENT in favour of the Defendant in respect of his counter claim and grant same…
While the claim for damages is refused I make no order as to costs.”
See pages 389 -397 of the Record.
The Appellants’ extant amended notice of appeal was filed on 15/9/14, but deemed properly filed and served on 09/02/17. The appeal was deemed entered on 22/9/15. The extant amended Appellant’s brief was filed on 15/9/16, but deemed properly filed and served on 09/02/17. The Respondent’s amended brief was filed on 14/3/17. The Appellants’ reply brief was filed on 15/11/15.
On May 9, when the appeal came up for hearing, the learned counsel adopted the respective briefs of argument thereof thus resulting in reserving the judgment.
The Appellants’ extant amended brief spans a total of 19 pages. At page 4, two issues have been raised for determination:
1. Whether the learned trial
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judge was competent to determine this suit based on evidence given before a different judge without hearing the case de novo. (This issue is distilled from Ground 6 in the Amended Notice of Appeal).
2. Whether on preponderance of evidence the learned trial judge has right to hold that the land in dispute was owned by the respondent and not by the appellants. (This issue is distilled from Grounds 1 to 5 in the amended Notice of Appeal).
The first issue has been extensively canvassed at pages 4 – 12 of the brief. In a nutshell, it was submitted, that the evidence in this case was heard by Ilok, J; on 02/02/2002 and 23/06/06, respectively. About seven years thereafter, Attoe-Onyebueke, J; opted not to hear the case de novo.
Instead, he relied on the evidence given before Ilok J; and proceeded to deliver the vexed judgment.
Further submitted, that though Attoe-Onyebueke, J;’s intention was obviously good, his approach was unfortunately wrong. See SHANU VS. AFRIBANK NIG. LTD. (2003) ALL FWLR (PT. 136) 823 @ 855 – 854 H – A; GWARZO VS. COP (2014) LPELR 23470 (CA).
It was argued, that before Attoe-Onyebueke, J; no witness was called and
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no exhibit tendered by the parties. Neither was the proceeding before Ilok, J; was tendered or admitted as an exhibit before Attoe-Onyebueke, J; who evaluated the evidence of witnesses he did not have the advantage of seeing or hearing himself.
Further argued, that the learned trial judge was not competent to do so. See EGHOBAMIEN vs. FED. MORTGAGE BANK OF NIG. (2002) FWLR (PT:121) 1858 @ 1866 E – H; DANISH CAR CARRIERS VS. FERIKSON SURA & Co. (NiG) LTD. (2011) LPELR – 4018 (CA). See also Order 31 Rule 19 of the Cross River State High Court (Civil procedure) Rules, 2008, Sections 34, 39 and 46 (1) of the Evidence Act 2004; (Sections 39 and 46 (1) of the Evidence Act 2011).
It was postulated, that the mutual consent of the parties is immaterial, as the Court below was not entitled to rely for its judgment on the admissible evidence given before another judge. See SHANU VS AFRIBANK (SUPRA) AT 862 B – C.
The Court is urged to so hold, set aside the judgment and send back this case to the Court below for a proper trial de novo by a different judge.
The second issue has been argued at pages 15 to 18 of the brief, to the effect that inspite
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of the pleading thereof in paragraph 22 of the 2nd Further Amended Statement of Defence and counter claim thereof, (21-26 of Record), the Respondent did not lead any evidence to support the alleged sharing of Chief Coco-Bassey’s lands to his parties. None of the Respondent’s four defence witnesses (DW 1 and DW4) mentioned any such sharing of Chief Coco-Bassey’s landed properties. Therefore, the Court below fell into error to have treated the pleadings and the parties as if it was their evidence. See OCHE VS CHRISTIAN (2003) FWLR (PART 147) 1128 AT 1140 C; THE ADMINISTRATOR OF THE ESTATE OF SANNI ABACHA VS. EKE-SPIFF (2009) ALL FWLR (PART 467) 1 AT 358-D.
Conclusively, the Court is urged to allow the appeal, and set aside the judgment of the Court below.
Contrariwise the Respondent’s brief filed on 13/03/2017 spans a total of 19 pages. At page 4, the Appellants’ two issues have been duly adopted. The first issue is argued at pages 4 – 76 of the said brief.
In the main, it was submitted that the Appellants have not informed this Court, with particulars, details, that the evaluation of the evidence by the Court below led to a miscarriage of
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justice in the suit. That, the argument of the Appellants, to say the least, is a mechanical and academic exercise that has no place in the dispensation of justice. Thus, the Court is urged to discountenance same.
Further submitted, that Order 31 Rule 19 of the Cross River State High Court (Civil Procedure) Rules 2008 (Supra), Section 34 of the Evidence Act, 2004, and Sections 39 and 46 (1) of the Evidence Act 2011 were introduced to ameliorate certain inconvenience, mischiefs and delay that occur in dispensation of substantial justice. The Court is urged to hold that the Appellants are interested in delaying in dispensation of justice. The Court is urged to dismiss the appeal with substantial cost.
The second issue is canvassed at pages 7 to 16 of the Respondent’s brief, to the effect that the Court below has properly evaluated the pieces of evidence of all the witnesses called by both parties and the respective exhibits thereof.
Further submitted, that the Appellant’s contention at page 183 to the effect that the Court below failed to evaluate the evidence of PW5 is a total misunderstanding as to what constitute evaluation of evidence.
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It’s contended, that its crystal clear from the record that the Court below injected dexterity in reading the decision thereof after careful examination and evaluation of the pieces of evidence of both parties. See OLONADE vs SOWEMIMO (2014) 14 NWLR (PART 1428) 472 AT 496 A – D; FAGBENRO vs AROBADI (2006) 7 NWLR (PART 978) 172, to the effect that in civil matters decisions are reached by Courts on the balance of probabilities or preponderance of evidence.
It was contended, that the Court below put evidence of both parties on the imaginary scale and came to a rightful decision, that the Respondent’s evidence was of more probative value than that of the Appellant, and thus gave judgment in favour of the Respondent.
Further contended, that the Appellants have not disclosed the miscarriage occasioned by the alleged omission of the Court’s evaluation or examination of evidence of the Appellant’s witnesses. See ONAJOBI v. OLANIPEKUN (1985) 4 SC (PART 2) AT 163; MOGAJI VS ODOFIN (1978) 4 SC 91 AT 92- 95 ET AL.
It was postulated, that the Court below was right in giving decision in favour of the Respondent, who never blinked but was consistent in tracing
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his roots of title. That, the Appellants were merely on trial and error while tracing their roots of title, and were not certain as to the proper history of the land in dispute.
Conclusively, the Court is urged to dismiss the Appeal with substantial costs.
The said Appellant’s reply brief is to the conclusive effect, that the finding of the Court below in the vexed judgment (at page 384 of the Record) was not drawn from the evidence of the parties. The Court is thus once more urged upon to uphold the appeal, and set aside the vexed judgment.
Having critically, albeit dispassionately, perused the submissions of the learned Counsel contained in their respective briefs of argument vis-a-vis the record of appeal, I am inclined to adopting the two issues raised by the Appellants for the determination of the appeal, anon.
ISSUE NO 1:
The first issue is expressly distilled from ground 6 of the additional grounds of appeal. It raises the fundamental question of whether or not the Court below was competent to determine this suit based on evidence given before a different judge without hearing the case de novo.
Instructively, parties
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are ad idem that in the instant case evidence was taken and heard before Ilok, J. between February 2, 2002 and June 23, 2006. While Appellants called five witnesses and tendered 9 Exhibits the Respondent called four witnesses and tendered eleven exhibits. At the conclusion of that trial, Ilok, J. ordered the parties to file and serve the respective written addresses thereof. Alas! The dutiful learned judge gave up the ghost and went to the great beyond.
Consequent upon the untimely demise of Ilok, J. the case was reassigned to Ita, J. who ordered for trial of the case de novo at pre-conference level. Before the pre-conference, the case was reassigned to another judge, Ikpeme J. who deemed it expedient to grant leave to the parties to adopt their respective written addresses earlier filed by them. That was on April 29, 2010.
However, on May 5, 2011, the said Ikpeme, J. overruled his earlier decision to deliver judgment based on the evidence taken by the late Ilok, J. and parties written addresses. Consequent whereupon, Ikpeme, J. ordered for a pre-trial conference and eventual hearing of the case de novo. See pages 377 – 378 of the Record.
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Again, before Ikpeme,.J. could proceed with the trial, the case was reassigned to Eneji, J. and thereafter to Attoe Onyebueke, J.
On June 27, 2013, U. B. Eba Esq appeared with Vincent Efa, Emmanuel David Esq. and J. Osumuo Esq for the claimant. While O. A. Bassey Esq. appeared with Ruth U. Udoinem for the Defendant/counter claimant, respectively. U. B. Eba Esq. moved his application, thus:
We shall be applying pursuant to Order 31 Rule 19 of the High Court Civil Procedure Rules at Cross River State 2008. That most of the parties who testified in the matter are all dead and they were all cross-examined by the parties involved in the matter. So there will be no need to start the matter de novo. All the evidence are before my Lord. We pray that you allow us to adopt our addresses before you. Counsel to the Defendant/Counter Claimant is not opposing.
Strangely, without hearing from the Defendant/counter claimants counsel, the court below proceeded to rule thus:
RULING
The application is granted as prayed DW7. There should be certified copies of the evidence of all the parties filed in the Court together with the written addresses of the
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counsel.
This matter is therefore adjourned to 12th July 2013 for adoption of written addresses of the counsel.”
See pages 384 – 385 of the Record.
Now, on July 12, 2013, when the matter came up for adoption of written addresses by counsel, the Court below observed:
“COURT:
This matter was slated for judgment (six) today but this Court has read through the file and has not see in the exhibits that were tendered in the counsel the proceedings. The parties should agree on what the Court should do in the absence of exhibits.”
Then the Plaintiffs counsel submitted thus:
“A.O. Bassey Esq. since the inception of this matter, the exhibits that were tendered have not been found. Since the file was handed over to me by the late Judge Nenji, we have not seen the exhibits since then. This matter was handled by late Justice Ilok before being assigned to Hon. Justice Effiong, subsequently assigned to Justice Ita, then Akon Ikpeme J., before this present Court.”
On this part the Defendants’ counsel submitted:
“Emmanuel David Esq.
We pray the Court to give us a date to see how far we can go in securing the
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exhibits”.
Whereupon the Court below ordered:
“COURT:
This matter is adjourned to the 20th day of November, 2013 to enable the claimant’s counsel to make available the exhibits in this case to the Court.”
Curiously enough, the Court proceeded to deliver the vexed judgment on December 3, 2013. It is obvious on the record, that the Court did not sit on 20/11/13 in question. Yet, against the background of all that has been highlighted above, the Court below in its wisdom proceeded to deliver the vexed judgment to the following conclusive effect:
“From the evidence given by both parties if weighed on a scale that of the Defendant is more probable and I believe same.”
Having found as above I hold that the Defendants family is the proper family to inherit the property of Ma Anwatim and not the claimant who presented conflicting originator of the land.
I have gone through the exhibits tendered by the parties; I accept the survey plan of the Defendants as in plan T.J CR 962 of 18/2/78 and the lease of Agreement tendered by the claimant amounts to act of trespass.
Whereof the claimants claim is hereby dismissed and I enter
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judgment in favour of the defendant in respect of his counter-claim and grant same…” see pages 389 to 397 of the Record.
In the instant case none of the parties testified or called any witness to testify on their behalf, nor did they tender any exhibit before Attoe Onyebueke, J. what’s more, even the proceedings that were taken by the late Ilok J. had not been tendered talkless of being admitted before Attoe Onyebueke J. As obviously alluded to above, there is nothing on record to establish that the order given by the learned judge for the certification of all the exhibits tendered was not complied with. The simple reason being that, as confirmed by the counsel and the learned trial judge, the said exhibits had not been seen since they were tendered in the proceedings.
It is a well settled fundamental principle, that the exercise of a judicial discretion by a judge has to be predicated upon evidence adduced before him. Thus, a judge is not competent to predicate any decision upon an evidence taken before another adjudicator unless there is a statutory provision permitting him to do so. See SHANU vs. AFRI BANK NIGERIA LIMITED (2003) ALL FWLR Cpt. 136)
15
823 @ 854 – 855 paragraphs H – A. See also GWARZO VS. COP (2014) LPELR – 23 470 (ca). EGHOBAMIEN VS. FEDERAL MORTGAGE BANK OF NIGERIA (2002) FWLR CPT 121) 1858.
Most particularly, in the case of EGHOBAMIEN VS FMBN (supra), the Apex Court aptly reiterated the trite doctrine:
“It is palpably wrong to write a judgment on the evidence recorded by another Judge…”
In the instant case, the trial judge relied on the provisions of Order 31 Rule 19 of the Cross River State High Court (Civil Procedure) Rules, 2008 viz:
“19. Subject to the provisions of Section 34 of the Evidence Act all evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the same cause or matter without the need for the trial to commence de novo.”
Most interestingly, the provisions of Section 34 of the Evidence Act has been a subject of interpretation in a plethora of authorities. In the case of SHANU VS AFRIBANK (supra), the Apex Court aptly held:
“I do not understand the purpose of Section 34(1) [now Section 46 (1) of the Evidence Act to be to permit a package of the evidence given by all the witnesses or a good
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number of them in a previous proceeding on obviously contentious issues and of conflicting … of evidence to be placed before another Judge for a resolution and judgment. Section 34 (1) is not to be used to avoid hearing de novo.” … per Uwaifo @ 854 – 854 paragraphs F – A.
In the circumstances, the first issue is hereby resolved in favour of the Appellants, against the Respondent.
ISSUE NO. 2:
Lastly, the second issue raises the question of whether or not the Court below was right to hold that the land in dispute was owned by the Respondent and not by the Appellant. The said second issue is distilled from grounds 1 to 5 of the notice of appeal.
I would want to believe that having answered the first issue in the negative and effectively resolved same in favour of the Appellant, it would be an academic exercise for the Court to delve in to the second issue and determine same on the merits. There is no gainsaying the fact that the determining of the first issue makes it imperative for the Court to remit the case to the Court below for trial de novo on the merits by another judge. And I so hold.
Hence, having effectively resolved the
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first issue in favour of the Appellants, the appeal is hereby adjudged meritorious, and it’s hereby allowed by me.
Consequently, the judgment of the High Court of Cross River State, delivered by Attoe- Onyebueke J,, in suit No. HC/361/1998, is hereby set aside by me.
The said suit No HC/361/1998 shall be, and it is hereby, remitted to the Chief Judge of Cross River State for reassignment to another judge of the Court other than Attoe – Onyebueke, J., for trial de novo on the merits.
There shall be no order as to costs.
STEPHEN JONAH ADAH, J.C.A.: I was availed the privilege of reading in draft the judgment just delivered by my learned brother, Ibrahim M. Musa Saulawa, JCA. I agree with his reasoning and conclusion that the Suit No. HC/361/1995 be remitted back to the Chief Judge of Cross River State for re assignment to another judge of the Court for trial de novo.
By our procedural laws, it is essential that when a matter is part heard and it is taken over by another judge of the Court the judge must hear the matter de novo. The essence of this is to allow the trial judge the opportunity of carrying out his
18
primary assignment of receiving evidence presented by parties and ascribing probative value thereto. The judge is privileged to do this because he sees, hears and observes the demeanour of the witnesses. In the case of MOGAJI & ORS. VS. ODOFIN & ORS. (1978) 4SC (Reprint) 53, 65 the Supreme Court per Fatayi-Williams, JSC (as he then was) held that:
“Before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accept and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the Plaintiff on one side of the scale and that of the Defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party; but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore in determining which is heavier, the Judge will naturally have regard to the following:
(a) Whether
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the evidence is admissible;
(b) Whether it is relevant;
(c) Where it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion, based on the evidence which he has accepted.”
From the foregoing established authority, a judge ought to start de novo the hearing of any case assigned to him. The learned trial Judge in the instant case, who did not hear evidence of witnesses cannot deliver justice by cropping record of evidence that was received by another judge to determine the case before him. It is for this and the fuller reasons advanced in the lead judgment that I too allow this appeal and I remit the case back to the Court below for it to be heard on merit de novo by another judge of the Court as ordered in the lead judgment.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother I.M.M. SAULAWA, JCA. I concur with the
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reasoning and conclusion of my learned brother therein. Appeal is allowed. I adopt the consequential orders in the lead judgment.
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Appearances:
EDEM JOHN For Appellant(s)
OFFISONG UNOH For Respondent(s)
Appearances
EDEM JOHN For Appellant
AND
OFFISONG UNOH For Respondent
