Chief Justus Uduedo Akpor V. Odhogu Iguoriguo & Ors (1978)
LawGlobal-Hub Lead Judgment Report
IDIGBE, J.S.C.
In this action the plaintiff, represented by Chief Justus Uduedo Iguoriguo, is the Odhe Branch of the Emeni family of Irri town in the Isoko Administrative Division of Bendel (formerly, Midwestern) State of Nigeria and the defendant, represented by Odhogu Iguoriguo and four others, is the Ateme family of the same town in the same Administrative Division.
We have before us an appeal by the said Ateme family from a judgment of the High Court of Midwestern (now, Bendel) State holden at Ughelli in favour of the plaintiff (in this judgment hereafter also referred to as the “Odhe-Emeni family”) by which the Odhe-Emeni family was granted:
“(a) A declaration of title to the piece or parcel of land known and called EDHERIUWA in Irri bush and which area is shown described and verged pink on the Survey Plan No. TJN 911 marked Exhibit ‘A’ in these proceedings; and
(b) N50.00 damages for the trespass;
(c) an order of permanent injunction against members of the Ateme family” their servants agents and privies from further entry on the said parcel of land and committing any acts of trespass thereon.”
The above award is a sequel to the claims by the Odhe-Emeni family against the Ateme family aforesaid for the following reliefs i.e. (a) a declaration of title to the parcel of land called Edheriuwa (b) 100pounds damages for trespass and (c) an order of perpetual injunction restraining members of the said Ateme family from entering the said land/or trespassing thereon.
In a nutshell, the principal complaint of the Ateme family is that owing to the many long intervals of delay in taking the evidence of the parties and their witnesses in these proceedings and, the long delay between the taking of the evidence of some of the said witnesses and the delivery of judgment of this action, “the learned trial Judge ought to be regarded as having lost his impressions of the case” and of the many witnesses who testified during the trial. It was, therefore, urged on behalf of the Ateme family that the learned trial Judge (in the court below) could not have made good use of his advantage of having seen and/or observed the witnesses as they testified and in the circumstances the judgment aforesaid ought not to be sustained.
We will now set out the facts which form the background to this appeal so far as they are relevant to the argument advanced in support of the same and the submissions urged upon us. The Odhe-Emeni family who claim to be owners of the land in dispute -Edheriuwa – contend that about forty-eight years ago a member of their family- one Izaghe Ogbodor (now deceased) pledged the area of land in dispute to one Udherioke (the maternal grandfather of the 6th defendant in these proceedings – Iyeri Udehereioke) and another person called Okero (alias, Efoma) both of whom were brothers of the full blood, for a loan “of 3 boxes whiskey valued 12/-each i.e. a total of 36/-“. After taking possession of the same, Udherioke and Okero farmed the land in dispute and at a later date they invited members of the Ateme family to join them in farming the said land.
When at a later date the 6th defendant whose mother, Akporietaka, was a daughter of Udherioke took full control of the land in dispute she (6th defendant) continued to allow the Ateme family use of the same. About six years immediately prior to the institution of these proceedings, the first defendant herein offered to Akporietaka (then very ill) 36/- in an attempt- according to the plaintiff “to redeem the pledge”. Akporietaka accepted the sum of 36/-. The 6th defendant soon learnt of the surreptitious transaction between Akporietaka (her mother) and the first defendant and offered in return the sum of 36/- to the defendant who rejected the same. Eventually, at the request of the Odhe-Emeni family Akporietaka also requested the first defendant and members of Ateme family to leave the land in dispute but they refused to comply with the request. A special meeting of the committee of the Irri Community Union thereafter intervened, at the request of the Odha-Emeni family.
The Chairman and the secretary of this special committee -Peter Useh and Jonathan Eraunu respectively heard and considered evidence from both family and decided that members of the Ateme family should receive a total of 13Pounds (representing the total expenses allegedly made by the Ateme family in respect of the land in dispute) and thereafter vacate the area for use exclusively by the Odhe-Emeni family. When the Ateme family refused to accept the 13Pounds and leave the said land, they were sued in the Uzere Customary Court (in Suit UCC/76/69). The proceedings of the Uzere Customary Court were received in evidence, as Exhibit ‘A’ in these proceedings. Because the Ateme family continued to “trespass on the land in dispute” inspite of the decision in Exhibit ‘A’ the Odhe-Emeni family initiated these proceedings.
Summarily, the case of the Ateme who deny the pledge alleged by the Odhe-Emeni family is that the land in dispute has always been, from time now out of memory, that of the said family. The family denies offering at any time any money to Akporietaka or negotiating with the 6th defendant who, according to them, belongs to the Emeni family of Irri whose action against her (the 6th defendant) in these proceedings is, alleged by the Ateme family, to be entirely collusive. The Ateme family denies that there was any intervention, as alleged by the Odhe-Emeni family, by the Irri community Union or a special committee thereof; and, in any case, it denies that any representative of the family ever appeared before a committee of the said Union for a settlement or attempted settlement of the dispute in respect of the land Edheriuwa.
The case for the Odhe-Emeni family was put before the court through a total of 11 (eleven) witnesses the first of whom (the plaintiff) gave evidence on the 11th of January, 1972 and was cross-examined on the next day (12th January, 1972) when also the first plaintiff witness testified. The second, third (Peter Useh – Chairman of the committee of the Irri Community Union), fourth (Jonathan Eraunu – the secretary to the said committee) witness for the plaintiff testified on the sixteenth of March, 1972. The fifth, sixth, seventh witnesses for the plaintiff testified on the 4th of May, 1972; and cross-examination of the seventh witness continued on the 5th of May, 1972. The eight witness for the plaintiff testified on the 30th of May, whilst cross-examination of the ninth witness which began on the same day ended on 6th June, 1972. On the 23rd day of October, 1972 the Odhe-Emeni family closed its case after the tenth plaintiff witness testified.
The defence opened on the 21st November, 1972 when the first defendant testified, thereafter further hearing was adjourned to the next day (the 22nd November) when it was further adjourned to 20th – 22nd December, 1972. However, on the 20th December, 1972 the following note appears on the record:
“Parties present
A. O. Akpedeye for the plaintiff.
Court: Adjourned sine die; and parties will be informed as soon as I am able to return from Benin to conclude the case” (Underlining supplied by court)
We pause to observe that we were duly informed by learned counsel on both sides, at the hearing of this appeal that the above endorsement was made because the trial Judge was, at this time, leaving Ughelli on transfer to Benin City. The next endorsement on the record was apparently made on the 16th July, 1973 when further hearing in these proceedings was “adjourned sine die”. However, on the 9th of October 1974 when, according to counsel on both sides, the learned Judge was able to come from Benin to Ughelli further hearing took place and the 2nd, 3rd, 4th, 5th and 6th defendants gave evidence and further hearing was adjourned to the next day the 10th of October, 1974. On that day following an application, by defence, for adjournment as learned counsel for the defence was absent the following endorsement was made by the court:
“Court: This was one of the cases which were part-heard by me before I left the Judicial Division on transfer to Benin City, although I have again been transferred to Sapele. I left Ughelli in December, 1972, and since then both parties in this case and the learned Judge now stationed here have been making representations:
“that I should return to Ughelli to conclude the case as it was not fair to the parties that it should be heard de novo, having regard to the stage the case has reached before I went on transfer to Benin. At that time (i.e. December, 1972 i.e. virtually two years ago) the plaintiff and his eleven witnesses had testified and the first defendant had also given evidence. Pursuant to the directive given by the Honourable the Chief Judge of the State that I should return to conclude the case, I asked the Registrar of this court to send out hearing notices to the parties and their counsel against yesterday, the 9th October, 1974…The application for adjournment is hereby refused and the defendants are to call their witnesses if any, failing which the defence should be closed.”
(N. B. Brackets and Underlining supplied by this court).
However, on the persistence of the defendants of the Ateme family, the learned trial Judge adjourned further hearing in the case to the next day, 11th October, 1974 when the first to fourth witnesses for the defence testified and further hearing in the case was adjourned to 14th December, 1974. On that day learned counsel for both parties addressed the court and judgment was reserved; and on the 18th January, 1975 the learned Judge delivered judgment in favour of the Odhe-Emeni family in the terms already set out earlier on in this judgment. The Ateme family has appealed from the said judgment on several grounds. The principal complaint had earlier on been summarised. As we were of the opinion that there was considerable merit in the submissions urged in support of the principal complaint we indicated to learned counsel for both parties that argument in respect of the other grounds of appeal should be suspended pending our decision on the principal complaint of the Ateme family who, henceforth in this judgment, will be referred to as the appellant while the Odhe-Emeni family will be referred to as the respondent.
The gravamen of the complaint of the appellant is that the conclusions of the trial court on issues joined by the appellant and the respondent, albeit conclusions on facts given in evidence before the learned trial Judge cannot be correct, on the contrary, learned counsel for the appellant submits that, in the peculiar circumstances of these proceedings the learned trial Judge ought to be regarded as having lost his impressions of the witnesses who testified before him long before he delivered his judgment.
For the respondent, it was contended that, since we have not seen the witnesses give evidence and observed their demeanour as they testified, we ought to refer to the conclusions of the trial court on the facts before it and refrain from interfering with the judgment. There is no doubt that in non-jury cases coming on appeal, the Judge’s findings, made after hearing the witnesses and observing their demeanour, are entitled to great weight and should not be disturbed unless it is clear that they are unsound. An appellate tribunal, however, can in appropriate cases interfere with such findings (based on facts given in evidence by witness) if from the record it is convinced that such findings are based upon ill-founded impression of a witness or that the learned Judge in the trial court has not taken proper advantage of his having seen, heard and observed the demeanour of a witness.
Once again, let us recall to mind the events which underline the rather chequared history of these proceedings. As far back as the beginning of 1972 (to be precise, on the 11th January, 1972) the learned Judge in the court below began hearing evidence in this case; and on diverse dates between then and October 1972 he had listened to and observed as many as eleven witnesses. Thereafter a number of adjournments followed and between November, and December, 1972 he received the evidence of the first defendant and proceeded on transfer to another Judicial Division, Benin City. Seven months later (i.e. to be precise on 16th July, 1973), he was able to take leave of his normal duties (i.e. the hearing or trial of diverse cases in Benin City) to come to Ughelli in an attempt to receive further evidence in this case. The attempt was unsuccessful for he had to adjourn further hearing in these proceedings to 9th October, 1974, when he was able to listen to the evidence of the remaining defendants. In other words there was further adjournment of proceedings for additional fifteen months from 16th July, 1973, in effect, there was an interval of twenty-two months between the close of the plaintiff’s (the respondent herein) case and the reception of the evidence of the testimony of members of the Ateme family (but minus their witnesses). Between July, 1973 and October, 1974, the same learned Judge had been transferred to Sapele (another Judicial Division) by the Chief Judge of the State who, according to the records in this case, subsequently also had asked him to return to Ughelli and complete this case.
Once again, following the directives of the Chief Judge, the learned Judge took leave of his normal duties (i.e. hearing of other cases in the Sapele Judicial Division) to return to Ughelli in order to continue hearing in a case which he left uncompleted some twenty-two months earlier. Can it be seriously contended that even, at this stage, he undoubtedly had a complete impression of the demeanour of the witnesses he saw some twenty-two months ago and during which period he had had to watch the demeanour of other witnesses, who gave evidence in a variety of other cases Let it be remembered that in assessing the relative value of witnesses in order to reach a decision on their credibility, a Judge dealing with any given proceeding, has quite often to consider, inter alia not only their demeanour but sometimes, their personality, their reactions to questions from counsel both in the course of examination-in-chief and under “the fire of cross-examination”; all these go to leave a cumulative impression with any trial Judge.
Then, can it seriously be expected that these cumulative impressions will necessarily remain over a period of over twenty months and in the face of intervening hearing of evidence from other witnesses in various other cases in two separate Judicial Divisions Dealing with a similar situation but in which the intervals between the reception of evidence from witnesses were neither as many, nor as far between as in the case in hand, this court had the following observations to make:-
“…The presumption which the Chief Judge felt justified in making is further weakened by the lapse of time between the 21st September when Awokoya gave evidence, the 12th October when the appellant gave evidence, and the 7th November, when judgment was delivered. During these intervals the Magistrate must have had to direct his mind to numerous other cases, and in such circumstances he must be regarded as having lost much of the advantage which he might otherwise be supposed to have derived from seeing and hearing the witnesses, so that an appeal court is in almost as good a position as he is to form an opinion of their reliability. This ground of appeal is well-founded, and if it stood alone the question would be whether we should dismiss the plaintiff’s claim or send the case back for retrial so that an express finding might be made by someone who had heard the evidence …”
(See Awobiyi & Sons v. Igbalaiye Brothers (1965) 1 All NLR 163 per Brett, JSC., at 166)
While undue delay and/or long intervals between the reception of evidence of witnesses in proceedings and the delivery of judgment therein (hereafter referred to as a “lapse”) can ipso facto raise, before an appellate tribunal, a strong presumption that the court of trial could not have made good use of its advantage in seeing and observing the demeanour of the witness who testified before it, it does not, however, follow that in every case where such a “lapse” has occurred the appellate tribunal must necessarily set aside the decision of that court (i.e. the court of trial). If, for instance, the decision in such a case does not rest entirely or mainly on reliance, by the trial court, on the value placed on the witnesses who testified before it as a result of its impression of them, an appellate tribunal ought not to set aside that decision.
It therefore becomes necessary for us to examine more closely the record in the case in hand in order to find out if, in these proceedings, the “lapse” is such as warrants interference by this court with the judgment appealed from.
Once again, we take a look at the case for the respondent which is (1) that the area in dispute was given on a pledge following a loan of 3 casks of whiskey valued 36/- to the grandfather of the 6th defendant, Iyeri Udhereioke and that the appellants, who surreptituously, if not fraudulently, tried to redeem the pledge for their own exclusive benefit, came on the land by the grace of Akporietaka (the daughter of 6th defendant’s grandfather) and the 6th defendant herself and (2), that at a meeting of a special committee of the Irri Community Union the first defendant who admitted the alleged pledge and the respondent’s assertion as to how the Ateme family came on this land was asked to receive from the Odhe-Emeni family a “redemption fee of 13Pounds” and vacate the land in dispute. To substantiate its case, the Odhe-Emeni family relied mainly on the evidence of the plaintiff, Peter Useh (P.W.3), Jonathan Eranu (P.W.4)- the chairman and secretary of the special Committee of the Irri Community Union respectively and the 6th defendant.
After a review of the evidence before him the learned trial Judge made the following observations in parts of his judgment:
“….I believe the evidence of the plaintiff and his witnesses who stated that the matter was discussed at a meeting of the….committee and that first defendant agreed to release the land on payment of 13Pounds. The reason why the land was to be redeemed from him was because he had paid 1-16-0 to the 6th defendant’s mother, which was the amount for which the land was pledged to her father…..Having admitted that the transaction was a pledge at a meeting of Irri Community Union, the first defendant is estopped from contesting ownership of the land with the plaintiff’s family …
On the whole I am far more convinced by the plaintiff’s case than the spurious defence 1st-5th defendants have endeavoured to put up, and I wholly reject the defence as untrue…”
(Underlining supplied by court)
Earlier on in his judgment the learned trial Judge, after comparing the evidence of the respondent and that of the appellant said:
“I am satisfied that the first defendant lied when he said that the land was the property of Ateme”
The learned Judge was of course, giving in the immediately preceding passage of his judgment, on 18th January, 1975, the sum of his impressions of the first defendant who testified before him on November, 1972 (i.e. twenty-four months ago).
After due consideration of the entire observations of the learned trial Judge in the passage of his judgment which we set out earlier on in the preceding paragraph, it is our view that in limine of the case, it falls to be said that the learned trial Judge did not believe the evidence of the appellant on the essential issues joined by parties in this case – and we will expatiate on this later in this judgment – and that, quoad ultra, the decision of the learned trial Judge in this case rested principally, if not entirely, on the value he assigned to the evidence of the plaintiff, P.W.3, P.W.4 and generally, on the other witnesses for the respondent, as a result of the impression they made on him. We have already dwelt at length on the delay and long intervals between the reception of the evidence in support of the case for both parties in these proceedings and, the possible effect it could have had on the learned trial Judge who in the interim period has had to transfer to two other Judicial Divisions – one after the other – wherein he was engaged in his normal duties (i.e. the trial of several other cases).
We have also examined the record in these proceedings carefully and are satisfied that the printed evidence belie any suggestion or contention that the learned trial Judge, in respect of all the witnesses who appeared before him, made good use of his having seen and observed their demeanour in the course of their several testimonies. This, of course, although unintentional, was a sequel to the irregular manner in which the evidence in these proceedings had been received (i.e. the “lapse earlier on referred to).
In the course of his judgment the learned trial Judge observed that the first defendant was estopped from now contesting the respondent’s claim to ownership of the land in dispute because, according to him (the learned Judge), the first defendant admitted at the meeting of the special Committee of Irri Community Union the alleged pledge of the land by the Odhe-Emeni family to the grandfather of 6th defendant and also agreed to vacate the land. Now, the evidence on this issue, as recorded, is grossly conflicting. Although the plaintiff said in his evidence that the first defendant attended this meeting, the latter denied this allegation. Again, although the learned trial Judge accepted the evidence of the alleged pledge of the land to the grandfather of the 6th defendant because he believed the plaintiff’s evidence that the first defendant gave 36/- to the mother of the 6th defendant in his attempt “to redeem the land for the exclusive use of the Ateme family”, neither of the witnesses (the 1st and the 6th defendants) spoke from his or her own knowledge on the subject; on the printed evidence, it was the mother of 6th defendant who told her of the attempt by first defendant “to redeem” the land in dispute and it was the 6th defendant who told the plaintiff. All the evidence on this vital issue (which, of course, was no part of the traditional family history since it relates to events which occurred – on the evidence – only some eighteen years prior to these proceedings) is, therefore, patently hearsay. With regard to the so-called admission of the alleged pledge, by the first defendant, at the meeting of the special committee of the Irri Community Union there was, as between the three witnesses – plaintiff, PW.8 and PW.4 – who testified on this issue material conflicts on the details of events which occurred at this meeting; but again, the learned trial Judge when writing his judgment in January, 1975, obviously must have tried through his mind’s eyes, to recall the setting under which these witnesses testified before him on the issue, two years ago. Once again, we ask: can it be seriously contended that he (the learned Judge) necessarily and accurately recalled the impressions these witnesses made on him We do not think that the answer to this question is readily in the affirmative. Can it be said, in the circumstances of these proceedings, that had the “lapse” aforesaid not occurred, the impressions on the learned Judge of the several witnesses who testified before him would certainly have been the same as stated in his judgment, and that consequently he certainly would have arrived at the same decision Again, we do not think that the answer to the question is readily in the affirmative.
On the foregoing ground alone, this appeal should succeed but we feel there is another matter to which our attention was drawn in this appeal and to which reference ought to be made; and this is in respect of Exhibit A. Learned counsel for the respondent has submitted that whatever the view to be taken by this court on the effect of the “lapse” referred to earlier on (i.e. the delay and/or long intervals between the reception of the evidence of the witnesses and the judgment in this case), the respondent ought to succeed in view of the findings of fact set out in the judgment of the Uzere Customary Court in Exhibit A which was an action between the parties herein and in which the claim of the respondent was (1) for “injunction to restrain the defendant (i.e. Odhogu Iguoriguo) and his agents from further trespassing” into the Emeni family land; and (2) for the defendant to show cause why he “should not receive the 13Pounds pledged to the defendant eight years ago in respect of the land known as Edheriuwa”. Being an action in the Customary (i.e. Native) court, the claim has not been properly or adequately framed but parties are agreed that it refers to the land in dispute and that the two families involved in these proceedings were the parties in Exhibit ‘A’. The relevant findings of the Uzere court to which learned counsel for the respondent has referred this court read:
“….The court is satisfied that there was a pledge of the land between plaintiff’s family, and the “family of his first witness (i.e. Iyeri Miller – the “same person as the 6th defendant in these proceedings). “The court is also satisfied that there was no “direct dealing between plaintiff and defendant about the land. “Plaintiff claim against the defendant is non-suited.
“Order: Plaintiff’s claim is non-suited. No order as to costs”. (Underlining supplied by the court)
The short answer to the submission of learned counsel for the respondent on this particular issue is, of course, that whatever the findings of the Customary Court in Exhibit ‘A’ may have been, they were wiped off by the penultimate order for non-suit made by the Uzere Customary Court. At common Law, it has always been the law that the effect of an order of non-suit in proceedings in a court of competent jurisdiction is to leave matters, so far as a plea of res judicata is concerned, precisely as they were before the proceedings commenced. A learned author describes the situation thus:
“Obviously, there is prima facie no decision in civil any more than in military warfare, where the attacking party sounds a retreat for strategic purposes. His retirement may indicate a perilous, or even disastrous, position for the moment, but there is no battle, and no ‘decision; indeed his very object in declining the former is to escape the latter. This was the effect of the old common law suit….” (Spencer Bower: The Doctrine of Res Judicata Original Edition (1924) Page 19 Article 27). Apart from the order for non-suit in the Uzere Customary court that court made no specific finding (or order) on the vital issue of pledge (in respect of the land in dispute) between the Odhe-Emeni family (the plaintiff in that case) and the Ateme family (the defendant in that case).
In the event, this court is left with the conclusions on the effect of the “lapse” (i.e. delay and long intervals between the reception of the evidence of witnesses and the judgment) in these proceedings. Having thoroughly examined the record and listened to the argument of learned counsel on both sides (i.e. for both the appellant and the respondent), we are satisfied that the judgment of the lower court, based as it is, principally on the relative value assigned to the evidence of the witnesses who testified before him by the learned trial Judge who could not possibly, in the peculiar circumstances of these proceedings, have made good use of his having seen and observed the demeanour of the said witnesses, ought to be set aside.
This appeal succeeds. It is hereby ordered that the judgment of the High Court of Midwestern (now, Bendel) State holden at Ughelli (Ogbobine, J.) dated the 18th day of January, 1975, in Suit UHC/9/70 together with the order for costs be and is hereby set aside and in substitution therefor, it is hereby ordered that the case be remitted to the High Court of Bendel State holden at Ughelli for hearing de novo before another Judge. The appellants shall have costs of this appeal which we fix at N240.00.
Other Citation: (1978) LCN/2113(SC)
