Alhaji Saka Falodun V. Sikiru Ogunse & Anr (2009)

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CHIMA CENTUS NWEZE, J.C.A.

The appellant [plaintiff as he then was] took out an action at the Customary Court sitting at Emure, Ekiti [hereinafter referred to as the court of first instance] against the respondents herein [defendants as they then were]. He made monetary claims against them, jointly and severally, being general and special damages for trespass committed on his farm without his consent.

The court of first instance sat in a collegiate panel of three Judges, viz., the President and two members. The case went to hearing with the full panel. This full panel continued with the hearing of the matter until it was adjourned for further hearing to a later date. However, commencing from January 1, 2000 till the final determination of the case, one of the members no longer took part in the proceedings. In its judgment delivered on December 12, 2000, the court [left with only two members] found for the plaintiff [now appellant].

Sequel to this development, the respondents herein [as appellants] appealed against the said judgment at the High Court of Justice of Ekiti State. On August 1, 2006, the said High Court [hereinafter referred to as the lower court] upturned the judgment of the court of first instance. In its judgment of the said date, the court [coram Abodunde J], not only allowed the appeal, it entered an order for the retrial of the case.

Dissatisfied with the judgment of the lower court which vacated the earlier judgment in his favour, the appellant herein [who was the respondent at the court below] has appealed to this court entreating it to determine the following questions:

Whether evidence that had been declared inadmissible as additional evidence could be said to be prejudicial to the respondents’ case in the same proceedings when there was no evidence of bias in the records of proceedings before the Honourable High Court sitting in its appellate jurisdiction.

Whether the provisions of the Customary Courts, Cap. 33, Laws of Ondo State as applicable to Ekiti State define supervisory authority to include the office of the Deputy Chief Registrar over Emure, Ekiti Customary Court thereby enabling him to order a stay of proceedings of the said court.

Whether, in the circumstances of this case, the appellant who gave evidence of a better title can be deprived of same when the boundary of the land to which his claim relates is clearly ascertainable.

Whether having regard to the totality of the evidence on the record, the appellant is not entitled to judgment.

Upon service on them of the appellant’s brief, the respondents filed their brief on January 1, 2009. They raised one terse issue: “whether the judgment of the trial Customary Court is a nullity”, They subsequently filed a Notice of Intention to contend that the judgment of the lower court [that is, the judgment of the appellate High Court which vacated the earlier judgment of the court of first instance ] should be affirmed on grounds other than those relied on by the court below.

In that notice, which this court deemed properly filed on March 3, 2009, the respondents gave notice that they were going to rely on the following grounds:

(1)The trial Customary Court Judges failed and neglected to adduce reason(s) for (sic) absence of one of its members at all time material to the time when the court delivered its judgment on the 7th day of December, 2000 contrary to the enabling law and Rules of Court;

(2) The trial Customary Court failed to advert its mind to the difference between general and special damages.

As already noted, this court deemed the above Notice of Intention to Contend as properly filed on March 3, 2009. So soon thereafter, the appellant filed an “Appellant’s Reply Brief’; that was on March 5, 2009. In that process, he raised two new issues thus;