OBU & ORS v. OTOYO & ANOR
(2020)LCN/15452(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Wednesday, November 04, 2020
CA/C/458/2018
RATIO
EVIDENCE: WHETHER A A TRIAL JUDGE MAY RELY ON THE EVIDENCE OF WITNESSES NOT GIVEN BEFORE HIM BUT GIVEN IN A PREVIOUS PROCEEDING OR BY PREVIOUS WITNESSES IN THE SAME JUDICIAL PROCEEDING FOR THE PREPARATION AND DELIVERY OF HIS JUDGMENT IN A TRIAL
Indeed the reliance of a trial judge on the evidence of witnesses not given before him but given in a previous proceeding or by previous witnesses in the same judicial proceeding for the preparation and delivery of his judgment in a trial could be a matter of competence and/or jurisdiction when and if the conditions stipulated under the provision of Section 46 (1) of the Evidence Act 2011 are not fulfilled.
One should also say perhaps for the umpteenth time that this is the position of the law even in-spite of provisions under some High Court Rules such as Order 31 Rule 19 of the Cross River State High Court (Civil Procedure) Rules 2008 which permits evidence taken at the hearing or trial to be used in any subsequent proceedings. The truth is that provisions such as Order 31 Rule 19 of the Cross River State High Court (Civil Procedure) Rules, 2008 must necessarily subject themselves to the provisions of the Evidence Act 2011 which to all intent and purposes exclusively covers legislative field in terms of admissibility of evidence in Nigeria.
The mischief that High Court Rules or State legislations such as Order 31 Rule 19 of the Cross River State High Court (Civil Procedure) Rules, 2008 tries to prevent is indeed adequately provided for under the Evidence Act. However, counsel and trial judges unnecessarily find difficulties to strictly confirm and/or apply the provision of Section 46 (1) of the Evidence Act 2011.
Section 46 (1) of the Evidence Act 2011 reads thus:
“46 (1) Evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is admissible for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness cannot be called for any of the reasons specified in Section 39, or is kept out of the way by the adverse party.
Provided that:
a) The proceeding was between the same parties or their representatives in interest.
b) The adverse party in the first proceeding had the right and opportunity to cross-examine, and
c) The questions in issue were substantially the same in the first as in the second proceeding.
Section 39 of the Evidence Act which was specified in Section 46 (1) reads thus:
“39 – Statements, whether written or oral of facts in issue or relevant facts made by a person –
a) Who is dead;
b) Who cannot be found;
c) Who had become incapable of giving evidence; or
d) Whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are admissible under Section 40 – 50.”
It would be recalled that the provision of part IV of the Evidence Act 2011 deals with the Hearsay Rule and its Exceptions. While Section 37 – 38 deal with the rule itself, Section 39 – 58 deal with certain recognized exceptions to mitigate and dilute the seeming harshness of the hearsay rule in the search for truth.
In the instant case, learned counsel for the Respondents applied orally in Court to adopt the evidence of witnesses that testified earlier in the suit before Hon. Justice Ashu Ewah, the learned counsel for the Appellant did not object and the new trial judge Hon. Justice Ofem I. Ofem granted the said oral application. In making and or granting the Respondent’s/Claimant’s application, there was no evidence whatsoever brought forward to explain the reasons in the words of Section 46 (1) of the Evidence Act 2011 why “– the witness (es) cannot be called for any of the reasons specified in Section 39, or is kept out of the way by adverse party.”
If I may repeat, the only circumstance for the admissibility of “…certain evidence for proving; in subsequent proceeding, the truth of facts stated in it –“ is as provided in Section 46 (1) of the Evidence Act 2011. PER MOJEED ADEKUNLE OWOADE, J.C.A.
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
1. MR. ADE OBU 2. MR. SUNDAY KAYANG 3. MR. JAMES UNDE APPELANT(S)
And
1. CHIEF GABRIEL OTOYO 2. MR. DOMINIC LIBEH RESPONDENT(S)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State, Obudu Judicial Division delivered on 19th day of June, 2018 by Hon. Justice Ofem I. Ofem.
The Respondent/Claimant took out a Writ of Summons accompanied by statement of claim against the Appellant/Defendant on 14th September, 2017, claiming as follows:
a) A DECLARATION that the Claimants are entitled to a Customary Right of Occupancy over their family land lying and situate at Lisheb-Abeb, Usulibi, Ablassan, Obanliku Local Government Area.
b) AN ORDER of injunction restraining the Defendants, their agents or assigns from trespassing into the said farmland.
c) The sum of N3,000,000 (The Million Naira) as General damages for trespass.
d) N1,000,000 (One Million Naira) cost of action.
The Appellants/Defendants filed a statement of Defence and counter claimed thus:
A. A declaration that the Defendants are the holders of the deemed customary right of occupancy over all the parcel of farm land known and called Kabung Swap situate at Akpashi in Ablassang and thereat; sandwiched by the farm lands of Bassey Okpoboh on the other. The said land is also sandwiched by the farm lands of Gregory Kepen and Carnice Okokoh Eneng.
B. An order of perpetual injunction restraining the Claimants, their agents and privies from further entry into the said land.
C. An order awarding general damages for trespass in the sum of Twenty Million Naira against the Claimants.
Pre trial was conducted before his Lordship, Justice Ashu Ewah of the Cross River State High Court on the 12th day of February, 2018. Trial opened before Justice Ashu Ewah on the 15th day of March, 2008. CW1 (Dominic Libeh) and CW2 (Francis Shiyam) gave evidence on behalf of the Claimants.
DW1 (Sunday Kayang) also gave evidence for the Defendants/Appellants before honourable Justice Ashu Ewah. (Pages 121 to 1123 of the record).
Shortly after that his Lordship Justice Ewah was transferred to another Judicial Division of the Cross River State High Court. When his Lordship Justice Ofem I. Ofem took proceedings in the matter, the Claimant applied for the adoption of the previous proceedings as shown on page 124 of the record: “Agim Esq;
We apply to adopt previous proceedings and continue from where the former proceeding stopped.
Kulo Esq;
No Objection
Court
Previous proceedings are hereby adopted to by this Court as applied to by both parties. Adjourned for continuation of defence to the 21st May, 2018.”
Before the above, CW1, CW2 and DW1 had given evidence before Hon. Justice Ashu Ewah. Hon. Justice O. I. Ofem took the evidence of only DW2 and thereafter gave judgment in the case.
Both parties to the case relied on traditional proof in support of their cases. The learned trial judge after reviewing of the evidence preferred the traditional history of the Respondents/Claimants and rejected the traditional history of the Appellants/Defendants. He entered judgment for the Respondents/Claimants and declared their entitlement to a customary right of occupancy over their family land lying and situate at Lisheb – Abeb, Usulibi, Ablassan, Obanliku Local Government Area.
Dissatisfied with the judgment the Appellant filed a Notice of Appeal and later an Amended Notice of Appeal on 4th June, 2020.
The relevant briefs of Argument are:
1. Appellant’s brief of Argument dated 15th April, 2019 but filed on 3rd May, 2019. It is settled by D. O. Kulo, Esq.
2. Respondent’s brief of Argument which was filed on 19th February, 2020 but deemed filed on 15th September, 2020. It is settled by A. A. Agim, Esq.
3. Appellant’s Reply brief of Argument which was filed on 10th September, 2020 but deemed filed on 15th September, 2020. It is settled by D. O. Kulo, Esq.
Learned counsel for the Appellant nominated three (3) Issues for determination. They are:
1. Whether the judgment of the trial Court can be sustained having regards to the evidence on records.
2. Whether a Presiding Judge can in his judgment, rely on evidence taken before another judge.
3. Whether a Court of law can rely on contradictory evidence.
Learned counsel for the Respondents also formulated three (3) issues for the determination of the appeal. They are:
1. Whether the trial High Court was wrong to hold that the Respondents reliance on traditional history to establish their title is satisfactory evidence of traditional history (from Ground One of the Grounds of Appeal).
2. Whether the trial High Court was in error to adopt the previous proceedings on the application of the substantive counsel (from Ground Two of the Grounds of Appeal).
3. Whether on the state of the pleadings and evidence of the Respondents, the trial High Court was wrong in holding that there is no contradiction on the description and identity of the land (from Ground Three of the Grounds of Appeal).
I will start the determination of the appeal by a consideration of issue No. 2 which is an issue of jurisdiction.
Learned counsel for the Appellants introduced issue No. 2 that the trial opened before Justice Ashu Ewah on the 15th day of March, 2018. CW1 (Dominic Libeh) and CW2 (Francis Shiyam) gave evidence on behalf of the Respondents before the said judge. That DW1 (Sunday Kayang) also gave evidence for the Appellants before Honourable Justice Ashu Ewah (pages 121 – 123 Record of Appeal).
That shortly after the proceedings of 23rd April, 2018, His Lordship Justice Ashu Ewah was transferred to another Judicial Division of the Cross River State High Court. Thereafter, His Lordship Justice Ofem I. Ofem took over proceedings in the matter, and the Respondent/Claimant applied for the adoption of the evidence of witnesses who gave evidence before Justice Ashu Ewah. The incumbent judge took the matter from that point to conclusion and delivered judgment.
He submitted that the Court is obliged to give judgment based on the evidence adduced before it. A Court of law cannot in the course of writing his judgment, rely on evidence which was adduced before another judge except the conditions under Section 46 (1) of the Evidence Act 2011 are fulfilled.
Learned counsel for the Appellants referred to the provision of Section 46 (1) of the Evidence Act and submitted that in their application for adoption of the evidence taken by Honourable Justice Ashu Ewah, the Respondents/Claimants did not proffer reasons to show that any of the conditions specified in Section 39 of the Evidence Act has occurred. He referred to the case of EGHOBAMIEN VS. FEDERAL MORTGAGE BANK OF NIGERIA (2002) FWLR (Part 121) 1858 at 1866 and submitted that it is not enough that the Appellants/Defendants conceded to the application for the adoption and use of the evidence adduced before another judge.
He submitted still relying on the case of EGHOBAMIEN VS. FEDERAL MORTGAGE BANK OF NIGERIA (supra) that the provisions of Section 46(1) of the Evidence Act have been held to be mandatory and cannot be waived.
He added that the provisions of Section 46 (1) of the Evidence Act 2011 are in pari materia with Section 34 (1) of the Evidence Act Cap. 62 LFN 1990 which was in existence when the case of EGHOBAMIEN VS. FEDERAL MORTGAGE BANK OF NIGERIA (supra) was determined.
Learned counsel for the Respondents submitted on issue No. 2 that the provision of Section 46 (1) of the Evidence Act is not in the circumstance applicable as there is a wide difference between the adoption of previous evidence of witnesses that the Appellant’s counsel cross examined and admissibility of previous evidence of witnesses as contemplated by the said provision. That the learned trial judge merely adopted an application by the Respondent’s counsel of adoption of the evidence of witnesses in the same proceedings and not previous evidence as contemplated by Section 46(1) of the Evidence Act, 2011.
He submitted that assuming the procedure adopted by the learned trial judge in adopting the previous evidence of the witnesses is in error, the error is procedural and the Appellants not having objected to the same procedure, it is deemed in law to have waived it having conceded to the procedure.
He submitted that a party could only raise a point of procedure timeously in this case at the trial Court and that he would not be allowed an appeal to raise such except he shows that there has been a miscarriage of justice. He referred to the cases of EZOMO VS. OYAKHIRE (1985) 1 NWLR (pt. 2) 195 at 203; UTC (NIG) LTD. VS. PAMOTEI (1989) 2 NWLR (pt. 1089) 244; AUGUSTA CHIME VS. MOSES CHIME (2001) FWLR (pt. 39) 1457 at 1462; DOMA VS. OGIRI (1997) 1 NWLR (pt. 481) 322 at 332.
Learned counsel for the Respondents submitted that the Appellants on the 7th day of May, 2018 did not apply for trial de novo and also did not appeal against the Court findings of 7th May, 2018.
He concluded relying on the case of AWODI VS. AJAGBE (2014) Vol. 2 MJSC page 42 at 45 that where a party has not appealed against a finding of a Court, he is deemed to have admitted such finding.
In his Reply brief, learned counsel for the Appellants reiterated that Section 34 (1) of the Evidence Act Cap. 62 (now Section 46 (1) of the Evidence Act 2011 stipulated conditions under which evidence of a witness in a previous proceeding may be admitted in a subsequent proceeding or in a later stage of the same proceeding for the purpose of establishing the truth of the facts which it states.
He submitted that counsel cannot by agreement confer jurisdiction on the Court where non – exist. That the error complained of is an error of law as encapsulated in Section 46 (1) of the Evidence Act 2011.
He submitted that trial de novo is a mandatory step that must necessarily be taken by a judge who inherits a case file. A judge who did not participate fully cannot write judgment based on evidence given by witnesses whose evidence was not taken before him. He referred to the case of OYETOLA VS. ADELEKE & ORS. (2019) LPELR – 47529 (CA).
Appellant’s counsel submitted that a judge who merely reads the printed records made by another judge is likely to deliver “justice” without regard to the conduct of the parties, their demeanour and the actual Court room situation in respect of the case which he took over. That it is based on the above situation that the Appeal Court always held that the duty to appraise evidence is the primary duty of the trial judge who saw, observed the conduct of the witnesses in the box and admitted the Exhibit tendered in the case.
He reasoned that the impression which parties and their witnesses make in the mind of judges is so important that it is given constitutional flavour. That it is for this reason that Section 294 (1) of the 1999 Constitution as amended makes it mandatory for Courts to deliver judgment not later than ninety days after the conclusion of evidence and final addresses.
The rationale for this Constitutional provision according to counsel is that trial judges ought to deliver their judgments within such reasonable time that the impression which the witnesses made in the case is still fresh in their memory.
He concluded that merely reading the record made by another judge cannot cut a deep impression on the mind of the judge and therefore, the quality of justice to be delivered by a judge who is merely relying on the printed record made by another judge will not be as high as the judge who saw the witnesses, had an impression of their demeanour and combined same with the Exhibits in this case. He said it is therefore not an issue that the Appellant must show the extent to which they have suffered a miscarriage of justice.
Let me start by saying that Appellants issue No. 2 is not as conceived by the learned counsel for the Respondent a matter of mere procedural irregularity. Indeed the reliance of a trial judge on the evidence of witnesses not given before him but given in a previous proceeding or by previous witnesses in the same judicial proceeding for the preparation and delivery of his judgment in a trial could be a matter of competence and/or jurisdiction when and if the conditions stipulated under the provision of Section 46 (1) of the Evidence Act 2011 are not fulfilled.
One should also say perhaps for the umpteenth time that this is the position of the law even in-spite of provisions under some High Court Rules such as Order 31 Rule 19 of the Cross River State High Court (Civil Procedure) Rules 2008 which permits evidence taken at the hearing or trial to be used in any subsequent proceedings. The truth is that provisions such as Order 31 Rule 19 of the Cross River State High Court (Civil Procedure) Rules, 2008 must necessarily subject themselves to the provisions of the Evidence Act 2011 which to all intent and purposes exclusively covers legislative field in terms of admissibility of evidence in Nigeria.
The mischief that High Court Rules or State legislations such as Order 31 Rule 19 of the Cross River State High Court (Civil Procedure) Rules, 2008 tries to prevent is indeed adequately provided for under the Evidence Act. However, counsel and trial judges unnecessarily find difficulties to strictly confirm and/or apply the provision of Section 46 (1) of the Evidence Act 2011.
Section 46 (1) of the Evidence Act 2011 reads thus:
“46 (1) Evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is admissible for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness cannot be called for any of the reasons specified in Section 39, or is kept out of the way by the adverse party.
Provided that:
a) The proceeding was between the same parties or their representatives in interest.
b) The adverse party in the first proceeding had the right and opportunity to cross-examine, and
c) The questions in issue were substantially the same in the first as in the second proceeding.
Section 39 of the Evidence Act which was specified in Section 46 (1) reads thus:
“39 – Statements, whether written or oral of facts in issue or relevant facts made by a person –
a) Who is dead;
b) Who cannot be found;
c) Who had become incapable of giving evidence; or
d) Whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are admissible under Section 40 – 50.”
It would be recalled that the provision of part IV of the Evidence Act 2011 deals with the Hearsay Rule and its Exceptions. While Section 37 – 38 deal with the rule itself, Section 39 – 58 deal with certain recognized exceptions to mitigate and dilute the seeming harshness of the hearsay rule in the search for truth.
In the instant case, learned counsel for the Respondents applied orally in Court to adopt the evidence of witnesses that testified earlier in the suit before Hon. Justice Ashu Ewah, the learned counsel for the Appellant did not object and the new trial judge Hon. Justice Ofem I. Ofem granted the said oral application. In making and or granting the Respondent’s/Claimant’s application, there was no evidence whatsoever brought forward to explain the reasons in the words of Section 46 (1) of the Evidence Act 2011 why “– the witness (es) cannot be called for any of the reasons specified in Section 39, or is kept out of the way by adverse party.”
If I may repeat, the only circumstance for the admissibility of “…certain evidence for proving; in subsequent proceeding, the truth of facts stated in it –“ is as provided in Section 46 (1) of the Evidence Act 2011.
In the instant case, and for the avoidance of doubt even when the same Suit No. HD/30/17 became divided into two proceedings for the reason of change of adjudicators, the proceeding before Hon. Justice Ewah, that is the first proceeding was indeed a previous proceeding while the proceeding before the Hon. Justice Ofem I. Ofem in the context of the provision of Section 46 (1) of the Evidence Act is the subsequent proceeding which led to a judgment in the case now on appeal.
In the case of EGHOBAMIEN VS. FEDERAL MORTGAGE BANK OF NIGERIA (2002) FWLR (part 121) 1858 at 1866, the Supreme Court held inter alia-
“It is palpably wrong to write a judgment based on the evidence recorded by another judge. A trial is a judicial examination of evidence according to the law of the land, given before the Court after hearing parties and their witnesses. A trial must be conducted by the judge himself and at the end of the hearing, he will write the judgment which is the authentic decision based on the evidence received and recorded. It is a mistrial for one judge to receive evidence and another to write judgment on it.”
In the EGHOBAMIEN VS. FEDERAL MORTGAGE BANK OF NIGERIA case (supra), the Supreme Court dealt with the provision of Section 34 of the Evidence Act Cap. 62 LFN 1990 which is in pari materia with the provision of Section 46 (1) of the Evidence Act 2011.
The Supreme Court further held in the same EGHOBAMIEN case (supra) that:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<> “The provisions of Section 34 (1) of the Evidence Act is mandatory and cannot be waived. If consent is given to admit evidence which is contrary to the provisions of a statute (e.g.Section 34 (1) of the Evidence Act the Court must ignore it as a case of giving consent to an illegality. A mandatory statutory provision directing a procedure to be followed in the performance of a public duty is not a party’s personal right to be waived.”
The learned trial judge was therefore in error to adopt the evidence of CW1, CW2 and DW1 in the previous proceeding before Hon. Justice Ashu Ewah without fulfilling the conditions stipulated in Section 46 (1) of the Evidence Act and relying on the evidence of the said witnesses in his judgment in the case.
In the circumstance, issue No. 1 is resolved in favour of the Appellant.
Having resolved issue No. 1 in favour of the Appellant, I do not consider it necessary to consider other issues in the appeal. Issue No. 1 goes to competence and/or jurisdiction for the trial Court. The judgment of the learned trial judge cannot be held to be valid.
This appeal is meritorious and it is allowed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The judgment and Orders of Hon. Justice Ofem I. Ofem delivered at the High Court of Cross River State, Obudu Judicial Division in Suit No. HD/30/2017 are hereby set aside.
Suit No. HD/30/2017 is remitted to the Hon. Chief Judge, Cross State for assignment to another judge other than Hon. Justiu Orem I. Ofem.
The parties to the suit are to bear their respective costs.
HAMMA AKAWU BARKA, J.C.A.: The issue which called for resolution was whether Hon. Justice Ofem was right in delivering judgment in a case partly heard by a different judge without satisfying the conditions set out under Section 46 of the Evidence Act 2011.
I find the resolution of the issue by my Learned brother MOJEED ADEKUNLE OWOADE, JCA most compelling and therefore agreeable to me. On the premise of the reasoning in the lead judgment, with which I am in total agreement, I also allow the appeal and resultantly remit the case to the State Chief Judge for trial de novo before any Court other than Justice Ofem.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the advantage of reading in draft the lead judgment just delivered by my learned brother, Mojeed A. Owoade, JCA. The main issue for consideration is whether the trial judge can rely on the evidence of witnesses not given before him but given in a previous proceeding. The provision of Section 46 (1) of the Evidence provides circumstances when evidence given by a witness in judicial proceeding or before any person authorized by law to take it may be admissible in a subsequent judicial proceeding. Such circumstances did not avail itself in the instant case. That being the case, the learned trial judge was in grave error to have adopted the evidence of CW1, CW2 and DW1 in the previous proceeding without fulfilling condition stipulated in Section 46 (1) of the Evidence Act. The appeal is therefore meritorious and should be allowed. I too allow the appeal and set aside the judgment of the lower Court.
Appearances:
D. O. KULO, ESQ. For Appellant(s)
A. A. AGIM, ESQ. For Respondent(s)
