A. Okosun Okpere V. Eboade Ehinebo & Anor. (1972)
LawGlobal-Hub Lead Judgment Report
A. FATAYI-WILLIAMS, J.S.C.
In the Uromi Customary Court in Suit No. 63/68, the plaintiff’s claim reads:-
“The plaintiff claims severally and jointly against the defendants:
(1) declaration of title to ownership of a piece of land valued at 370 situate at Ualokpere quarters in Eguare village along Ualokpere-Idumuague Road in Uromi.
(2) Injunction to restrain the defendants and their servants or agents from further trespass to the said land.
(3) 350 as damages for trespass therein.”
The plaintiff gave evidence in support of his claim to the following effect. The land in dispute situated at Ualor Okpere, in Eguare, Uromi, was originally owned by one Okpere (now deceased) the father of the plaintiff. During his lifetime, Okpere farmed on the land. Nobody disputed the land with him. After his death the land was divided among his children. This particular portion in dispute was the plaintiff’s share. Sometime in 1955, when he returned to his home at Uromi on leave, the plaintiff found the two defendants on the land.
They were cultivating economic crops such as cocoa, rubber, kolanuts and citrus trees there. One Agboma had also started a building on the land. The defendants when questioned begged to be allowed to stay on the land but the plaintiff refused and uprooted the crops. Agboma, who was building on the land was sued in suit No. 73/43/55 in Okhiode Group Court and judgment (exhibit A) was obtained against him. When the plaintiff returned home on leave again in 1957, he discovered that the two defendants as well as others had started building on part of the land in dispute.
As one Ogbebor was the chief instigator of the people disputing the land with him, the plaintiff’s family authorised his elder brother named Okpuje to sue Ogbebor for building on the land without permission. This second case (suit No. 618/57) was tried in the Uromi-Uzea Federal Court. The plaintiff’s family won the case as shown by the judgment (exhibit B) about which we will have more to say later.
One Okokpofi Egbehi (1st P/W), a member of the plaintiff’s family, was one of the two witnesses who gave evidence in support of his claim. His testimony is as follows:-
“I know both plaintiff and the defendants. Egbehi was my father. He virgined the land in dispute and other portions of the land left unvirgined by my grandfather Egbe. Okpere the first son of Egbehi virgined the remaining portion of the land untouched by Egbehi. It is a large portion of land which we are unable to use for farming all at once. Okpere family warned the defendants not to farm or plant economic crops on this land but they refused to heed the warning and continued to plant more.”
The 1st defendant also gave evidence. His defence, in short, was that the land in dispute was given to him by the late Chief Uwagbale, the Onoje of Uromi. This defence was confirmed by the 2nd defendant. In support of their case, the defendants called one Frederick Elabebolo (1st D.W.) who tendered another judgment of the Uromi-Uzea Federal Court (suit No. 337/58 delivered on 12th August, 1958) (exhibit G) in which judgment was given in respect of the same land in dispute for the defendants’ people by that court in an action brought by them against the plaintiff’s people. This same court, it will be recalled, had previously given judgment for the plaintiff’s family (the Ualor Okpere people) in respect of another piece of land situated between Idigie and Efandion in suit 618/57 (exhibit B). The defendants also called the present Onoje of Uromi, Chief Okoje II (3rd D.W.) who after testifying as to the traditional history of the land stated further as follows:-
“I was told by my father that the plaintiff had a land case before with the first defendant and that he supported the defendant in the case which the defendant won.”
In the majority judgment (which was the judgment of the court) delivered by two of the three-member court (Chief R. O. Etiobio and Mr. E. Eriakha) on 10th May, 1968, the plaintiff’s claim was dismissed. In dismissing the plaintiff’s claim, the court observed as follows:-
“The plaintiff tendered exhibits A and B and he failed to show the court members on inspection that the land over which the plaintiff now seeks declaration of title, injunction and claim for damages is part of land claimed in case No. 337/58 by Uromi/Uzea Federal Civil Court.
- In this case No. 337/58 the now defendant was plaintiff. There appears to be no record of appeal to this case No. 337/58. When the decision was given by the Uromi-Uzea Federal Civil Court on 12th August, 1958 that this present customary court cannot be used as appellate court to the dissolved old courts (sic).
- From the evidence before the court particularly that of an independent witness, the Onoje of Uromi, court finds as a fact that the land in dispute was owned by Ualor Noke people who had lived and farmed on this very land.
- (a) The necessary conclusion from this is that Okpere’s family did not virgin the same land.
(b) That Okpere’s family were merely strangers on the said land.
(c) That the defendant Ebuade had lived on the land in dispute over 23 years.
(d) That Okpere’s family had no title to the land in dispute.
- Therefore since there had been no appeal to case No. 337/58, i.e. exhibit G in this case, (from) Uromi-Uzea Federal Civil Court within the stipulated time, it appears this court has no jurisdiction to try this case even if this court has jurisdiction, from the evidence before this court, the claim as to declaration of title is dismissed”.
In his own separate judgment, the third member of the court who incidentally was the President, found for the plaintiff after finding as follows:-
“According to the native law and custom of Uromi, any parcel of land large or small virgined by an individual or members of a family becomes the personal property of such a person or persons. It is entirely unfair to disturb any person or persons who had lived in a particular place for upwards of 800 years.”
The plaintiff being dissatisfied with the judgment of the court (i.e. the majority judgment) appealed to the Ubiaja Magistrate’s Court. After considering the submissions made to him at the hearing ofthe appeal, the learned magistrate found as follows:-
“In my view exhibit G is not a valid judgment. As it attempted to set aside the judgment in exhibits A and B. This it had no power to do. It found among other things that the land is communal and set aside exhibits A and B. In my view the proceedings are again unsatisfactory in another aspect. It was conducted in a manner contrary to principles of natural justice. No one was allowed to cross-examine either parties. In my view this judgment is not valid and I agree with the submission of the learned counsel for the appellant that it is not binding on the appellant. Ground 7 raises a point of considerable importance. Chief Etiobio sat as a member of the lower court which dismissed the action. It is submitted and with some force that he is biased and an interested party. Learned counsel for the appellant has drawn my attention to exhibit G and exhibit F and the evidence that he has a house on the disputed land. Evidence of Chief Etiobio in exhibit G is against the appellant … in my view Chief Etiobio’s presence in the panel occasioned a miscarriage of justice.”
The learned magistrate then considered the traditional evidence as well as the evidence of possession given before the customary court in support of plaintiff’s claim and finally found as follows:-
“For the foregoing reasons, I allow the appeal (from the judgment) of the Uromi Customary Court dated 10th May, 1968. I set aside the majority judgment. After a careful consideration it will not be in the interest of justice to send this case back to be heard de novo. I order that the minority judgment delivered by Chief A. O. Ayewoh shall be the judgment of the Uromi Customary Court in this matter.”
Being dissatisfied with the judgment of the learned magistrate, the defendants appealed to the Ubiaja High Court. The learned judge who heard the second appeal and whose attention had been drawn to the judgments in the 1955 case (exhibit A), in the 1957 case (exhibit B) and in the 1958 case (exhibit G) made the following observations with respect to these judgments:-
“In the 1958 suit the plaintiff in the 1955 and 1957 suits was joined with his brothers as defendants. It is worthy of note that the judgment (exhibit G) was delivered at least one whole calendar month before the meeting of the Uromi-Uzea District Council; exhibit F refers. Another point worth noting is that the Onogie of Uromi at the material time, Chief Uagale or Uwagale, gave evidence in favour of the plaintiff in the 1955 and 1957 suits but gave evidence against him and his brother in the 1958 suit. Besides giving evidence personally as a witness he was also the Court President at the hearing of both the 1957 and the 1958 suits. This was a very unsatisfactory state of things … As exhibit A was part of the records before the learned magistrate he had every right to comment on it. I would even say at this stage that the Uromi-Uzea Federal Civil Court which sat in August 1958, being of the same jurisdiction as the Uromi-Uzea Federal Court of 1957, had no jurisdiction to set aside previous judgments by it as it did. The two judgments of 1957 and 1958, i.e. exhibits B and G, were also bad in that the Onogie of Uromi could not be a witness in any suit over which he was presiding as president. Any subsequent judgments, therefore, founded on exhibits B and/or G should fail.
Another aspect of the whole case is this. One of the Uromi Customary Court members, Chief A. O. Etiobio, was one of the councillors present at the Uromi-Uzea District Council meeting of the 18th September, 1958: exhibit F refers … Chief Uwagale, the Onogie was also present. Exhibit F showed that the 40 councillors present at that meeting resolved that the land belonged to the now plaintiffs/ appellants/respondents. In the 1958 suit, just one month before the resolution in exhibit F, the same Chiefs Etiobio and Uwagale gave evidence against the present plaintiffs/appellants/respondents even though they called Chief Etiobio as their witness. After the active part played by the said Chief Etiobio in 1958 could he be said to have heard the 1968 case with a blank mind”
Chief Etiobio, we must recall, was one of the three members of the Uromi Customary Court which heard the case now on appeal before us. The learned judge, after referring to the provisions of section 55(1)(a) of the Customary Courts Edict of the Mid- Western State (No. 38 of 1966),finally found as follows:-
“Having regard to the foregoing it is my view that the learned magistrate having allowed the appeal should have ordered a fresh trial before an entirely independent judge or panel of judges with a blank mind about the subject matter. I support the judgment of the learned magistrate in so far as it set aside the majority judgment of the Uromi Customary Court, but reject it in so far as it upheld the minority judgment. In the circumstances I hold that the justice of this case requires a proper hearing in the High Court and it is, therefore, so ordered.”
In the appeal now before us against the above finding, a number of points were urged upon us by learned counsel for the appellant. One of these is that the learned judge had no power to order that the case be reheard in the High Court. In view of the order which we propose to make, however, we will deal only with the complaint made about this order for retrial.
It cannot be disputed, and indeed, it was conceded by both parties, that there are glaring irregularities which offend against the principles of natural justice during the proceedings in exhibits A, B and G. Some of these irregularities had been spotlighted by both the learned magistrate and the learned judge at the hearing of the appeals before them. With the presence of Chief A. O. Etiobio (who had earlier given evidence in the 1958 case-exhibit G) as a member of the Uromi Customary Court which originally heard the case on 12th March, 1968, and which dismissed the plaintiff’s claim on 10th May, 1968, the instant case is also not free from irregularity.
Because of all these irregularities, we agree with the trial judge that there ought to be a retrial of the case. There is merit, however, in the submission of learned counsel for the appellant that the learned judge was in error when he ordered that the appeal before him be heard de novo in the High Court. Before expatiating further upon this, we would like to point out that while the order of the magistrate allowing the appeal and setting aside the judgment of the Uromi Customary Court was within his competence and therefore in order, his further order that the minority judgment delivered by Chief A. O. Ayewoh (the president of the court) should be the judgment of the Uromi Customary Court in the matter was clearly made without jurisdiction. In this respect, we refer to the provisions of section 9(2) of the Customary Courts Edict which read:-
“In all causes before a customary court the opinion of the majority of the members hearing the cause shall, in the event of the members disagreeing, be deemed and taken to be the decision of the court.”
Therefore, having heard the appeal and set aside the decision of the Uromi Customary Court, he should have exercised the powers conferred upon him by section 55(1)(b) of the said Edict which reads:-
“55(1) Any court (other than the Supreme Court) exercising appellate jurisdiction in civil matters under the provisions of this Edict may in the exercise of that jurisdiction:-
(a) …
(b) quash any proceedings and thereupon, where it is considered desirable, order any such cause or matter to be reheard de novo before the court of first instance or before any other customary court or before any magistrate’s court.”
In other words, he should have ordered the case to be reheard de novo before the Uromi Customary Court or before any other customary court or any magistrate’s court. In this connection we refer to the decision of the Federal Supreme Court in Lateju v. Iyanda and another (1959) 4 F.S.C. 257 where similar provisions in section 40 of the old Native Courts Ordinance (Cap. 142 in the Laws of Nigeria, 1948) were considered. In his judgment at page 261, Brett F.J. observed as follows:-
“In my view, a distinction has to be drawn between a rehearing under section 40(1)(a) of the Native Courts Ordinance, and an order for rehearing under section 40(1)(b). Under paragraph (a) the appellate court rehears the case itself; under paragraph (b) it orders the case to be reheard by some other court, and the order made by the magistrate in Apena v. Shonusi 9 W.A.C.A. 95 must be regarded as exceptional in this respect. Where there is to be a rehearing under paragraph (a) I do not consider that the judgment of the court of first instance is set aside until the rehearing is complete and some other order is made. The power of the appellate court under paragraph (a) is entirely an appellate power, that is to say, the court’s power is to make any such order or pass any such sentence as the court of first instance could have made or passed.”
It only remains for us to point out that once the decision of the Uromi Customary Court has been set aside, the magistrate’s court was functus officio and could not, therefore, give judgment for the plaintiffs as it had sought to do by substituting the minority judgment of that court. (See Amoku v. Duro 14 W.A.C.A. 257).
In the same manner, the learned judge, having confirmed the order of the learned magistrate setting aside the judgment of the Uromi Customary Court, could only exercise the powers conferred upon him under section 55(1)(b). He, therefore, had no power to order that the case be heard in the High Court. This is understandable. To hold otherwise would be tantamount to saying that one judge of the High Court could order another judge of the High Court to rehear a case de novo by virtue of his powers under section 55(1)(b). This is clearly unsatisfactory and the statute does not say that. In any case, the provisions of the section are clear and unambiguous-the judge can only order a rehearing de novo “before the court of first instance or before any other customary court or before any magistrate’s court.”
Having so found, this appeal must be allowed. The judgment of the learned judge in suit No. U/5A/69 delivered in the Ubiaja High Court on 2nd December, 1969, only in so far as it ordered that the case be reheard de novo in the High Court, is set aside. In view of the irregularities which had been spotlighted during the hearing of the appeal, we share the views of the learned judge that it would be in the interest of justice that the case be reheard de novo in the High Court. Unfortunately he had no power, having confirmed the order of the magistrate setting aside the judgment of the Uromi Customary Court to so order. For one thing, the probative value or effect of the proceedings and judgments of the Okhiode Group Court in exhibit A and those of the Uromi-Uzea Federal Court in exhibits B and G, about which we express no opinion, will need to be considered thoroughly.
According to section 22 of the Supreme Court Act (No. 12 of 1960) the Supreme Court at the hearing of an appeal:-
” … may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or in the case of an appeal from the High Court in its appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”
In the exercise of this power, we accordingly order that the case be reheard de novo by another judge in the Ubiaja High Court. At the rehearing the parties, if they so desire, shall be at liberty to deliver fresh or amended pleadings and file a survey plan of the disputed land.
costs of this appeal in favour of the plaintiff/appellant are assessed at 105 guineas and costs in the courts below shall abide the event.
SC.102/1970
