Madam Rose Fadiyo Vs Sunday Idemudia Ebamawo (1973)

FATAYI-WILLIAMS, JSC 

In an action commenced in the Benin Customary Court No. 3, the particulars of the plaintiff’s claim read- “The plaintiff’s claim against the defendant is for a declaration of title of ownership to a piece of land measuring 100 feet by 98 feet lying between beacon Nos. 605 and 604, and situated at Ugbekun area in Ward 18H Benin City, now encroached upon by the defendant since three months.

The piece of land values about £100 (one hundred pounds).” The defendant denied the plaintiff’s claim. At the hearing which followed, the plaintiff and the defendant testified and called witnesses. After the evidence -in-chief of Jonathan Owie Aiyebahan (1st P1/W) has been recorded by the learned President of the Customary Court, the following note was made by him in the record of proceedings:- “Question by plaintiff to the 1st witness: No.” The second witness for the plaintiff then testified and after he had been duly cross-examined, the plaintiff closed his case. The defendant then testified and called his own witness.

Thereafter, the court inspected the land in dispute. In a reserved judgment, the court, after reviewing the evidence adduced before him and making some observations on the evidence found as follows:- “In view of the foregoing facts, the court is convinced beyond every reasonable doubt that the plaintiff had made her case against the defendant.

Therefore judgment is for the plaintiff for her claim, that is, the defendant should surrender possession of the building plot in dispute within a month.” Being dissatisfied with the judgment, the defendant appealed to the Magistrate Court, Benin City, on the ground that the judgment was against the weight of evidence. Additional grounds of appeal which were later filed and argued on behalf of the defendant read:- “1. That the court below erred in law by giving judgment in favour of the plaintiff where there was no evidence of the mode by which the property devolved on her i.e. either by will or custom. 2. That the court below erred in law by giving judgment in favour of the plaintiff when there was no evidence of appropriate customary law applicable in the case.

3. That the proceedings are irregular in that defendant was afforded no opportunity of cross-examining the plaintiff principal witness Mr. J.O. Ayobahan. 4. That the court below misdirected itself in law in holding as follows:- ‘With regard to the copy of judgment in a case between Chief Ohenso and Ward 18H, there was no where to be found in the judgment which stipulated that all applications recommended by Ward 18H Allotment Committee and approved by the Oba at Agbokun should be nullified’  having regard to the legal importance of Exhibit ‘C’ and its judicial consequence. 5. That the court below erred in law by giving judgment in favour of the plaintiff when she failed to prove her claim. 6. The court below failed in law to consider or give sufficient consideration to the defence of the defendant.” The learned counsel for the defendant, at the hearing of the appeal, argued all his grounds of appeal.

The learned counsel for the plaintiff, on the other hand, appeared to have replied only to the first three grounds of appeal because part of the notes of the learned Senior Magistrate which deal with his submissions read- “Mr. Uwaifo replies to grounds 1, 2. He cites Section 23(1) of the Customary Courts Edict, and says there is no need to prove the law or custom. He submits that it was a slip of pen that the defendant was not allowed to cross-examine the plaintiff. He says it is a procedural defect which is cured by Section 57 of the Customary courts Edict. At this stage Mr. Uwaifo says that at this stage he intends to discontinue the appeal because it would appear he is not going to be accommodated.” Whereupon, the learned Senior Magistrate allowed the appeal and set aside the judgment of the Customary Court after observing as follows:- “I must say that it is not every defect on procedure that one could fall back on Section 57 to claim protection.

Every litigant must be given opportunity to state his case and this includes cross-examination of the witnesses. If there is an allegation as made in the appeal that the appellant was not given opportunity to cross-examine before judgment was entered, I think a serious miscarriage of justice has taken place. From page 4 of the record it is true that the appellant was not given the opportunity to cross-examine. For this reason alone, I allow this appeal. The judgment of Customary Court 3 is hereby set aside and the case is transmitted back to the same court for re-hearing de novo. (The underlining is ours). The plaintiff who was then dissatisfied with the decision of the learned Senior Magistrate appealed to the High Court. In a reserved judgment, delivered after hearing arguments adduced by both parties, the learned Judge who heard the appeal observed as follows:- “In the record of proceedings before me the controversial line is shown at page 3 line 36 of the record of appeal; i.e. ‘Question by plaintiff to the 1st witness – No ‘It is clear from the record that where the normal procedure is followed that this must be a typographical or merely an accidental slip of the pen ‘a lapsus calami’ pure and simple. There is no such procedure where the plaintiff puts questions to his first witness.

It would be a gross irregularity if it did happen. But there is no evidence that this is the case here. Because an examination at page 4 shows at the end of the evidence adduced by 2nd witness to the plaintiff this line – ‘Question by defendant: Do you know me?’ This shows that the Customary Court has followed the normal procedure of stating the fact on record that either party was given an opportunity to examine or re-examine a witness. Order 10 Section 4(2) of Customary Court Edict and Rules, 1966. It is a safe rule even in the High Court that clerical mistakes in judgment arising from any accidental slip or omission may be corrected at any time on the initiative of either party Re Marley Laboratory (1952) 1 All ER 1057 C.A. In this appeal, the learned Magistrate could have inspected the record of the customary court relative to the appeal if he had any doubt as to the procedure or the nature of the mistake vide Section 56 Customary Court Edict and Rules, 1966.”

Thereafter, the judge concluded his observation as follows:- “This appeal is allowed. The decision of the learned Senior Magistrate should be reversed and the decision of the President Customary Court 3 restored.” In this further appeal to this court, the main complaint, and indeed the only complaint, of the learned counsel for the defendant/appellant is that the learned Judge of the High Court, after allowing the appeal, should not have restored the judgment of the customary court. Because the other grounds of appeal dealing with the merits of the case before the customary court had not been considered by the senior magistrate, it would be unjust to restore the judgment of the customary court.

Learned counsel then suggested that the only reasonable order which the learned Judge have made in the circumstances, and which he urged us to make, is to send the case back to the Magistrate Court for further argument on the grounds of appeal which deal mainly with the merits of the finding of the President of the Customary Court. This suggestion was strenuously opposed by the learned counsel for the plaintiff/respondent who submitted that the order made by the learned Judge was the one he could have made once he had decided that the appeal should be allowed. It cannot be disputed that the only issue considered and decided, first by the senior magistrate, and later by the judge of the High Court, in their respective judgment in the appeal before them was whether the defendant was allowed to cross-examine the plaintiff’s 1st witness or not. Nowhere in the record of the appeal proceedings before the senior magistrate is there any note to indicate that grounds one, two, four, five and six, argued before the learned senior magistrate was ever considered by him.

The record of the proceedings before the High Court also shows that that was the only point adjudicated upon. It seems to us, therefore, that, having set aside the judgment of the senior magistrate, quite rightly in our view, it is only fair that the appeal should be heard on the merits. In this connection, we refer to Section 55(1) of the Customary Courts Edict of the Mid-Western State (No. 38 of 1966) which provides for the powers exercisable by appellate courts, such as the High Court, when hearing appeals from Customary Courts in civil matters.

It 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) after rehearing the whole case or not, reverse, vary or confirm the decision of the court from which the appeal is brought an

Other Citation: (1973) LCN/1672(SC)