Ashiru Noibi V. R. J. Fikolati & Anor.(1987)

BELGORE, J.S.C.

The matter subsequently leading to final appeal to this Court originated in Ekiti South Customary Court Grade 1. It went on appeal to the High Court of Ondo State, Ekiti Judicial Division sitting at Ado-Ekiti. The Plaintiffs’ claim in the Customary Court is as follows:-

1. Declaration of title to a piece of land which is at Odo- Idemo Street, Okerere quarters, Ikere-Ekiti.
2. 50pounds or N100 general damages for trespass committed and still being committed on the said land.
3. Injunction to restrain the defendant and his agents and servants from committing further acts of trespass on the said land. The said land is about 50 feet by 30 feet and is bounded as follows:

(a) On one side by the tarred Ikere-Ado road.

(b) On the second side by Amos Onikeko Egbake’s house

(c) On the third side by Omotoso’s shop

(d) on the fourth side by Agbanigo’s Storey House.

The value of the land is about 50pounds or N100. Dated at Ado-Ekiti this 19th day of June, 1971.

After a full trial an appeal was lodged in the High Court before Ogundare J (as he then was), who after listening to counsel on both sides in allowing the appeal on one issue concerning want of fair trial, ordered as follows:

“AND AFTER HEARING Mr. Adedeji, counsel for the defendant/appellant and Mr. O.A. Akanle, counsel for the plaintiffs/respondents, the court adjudged and gave judgment as follows:-

It is therefore my view that the exercise of the power to examine a witness or put questions to a witness was wrongly done by the trial court in this case. For that reason, therefore its judgment cannot be allowed to stand. This appeal therefore is hereby allowed. The judgment of Ekiti South Grade “I” Customary Court given on 5/11/79 is hereby set aside. I do not consider it necessary to deal with the other ground of appeal argued.

I shall now consider what consequential order to make. This case has had a chequered history as both counsel informed the court. I do not think that the ends of justice will be met by my ordering a new trial before the Ekiti South Grade “I” Customary Court. By virtue of section 45(a) of the Customary Court Edict, 1978 I hereby order that this case be tried de novo before the High Court, Ado-Ekiti. The costs of this appeal and the costs of the trial below shall abide by the result of the retrial.”

The case therefore by virtue of the above order went before Adeloye J (as he then was) at Ikere Ekiti for hearing de novo. Counsel appeared for both parties, and the case proceeded immediately to hearing. The Plaintiffs’ claims concerning declaration of title to land, injunction to restrain the defendant from trespassing on the same land and the evidence led on both sides never at any stage of the hearing raised any doubt as to the identity of the disputed land and the issue at stake. After a meticulous review of the whole evidence, the learned trial judge entered judgment for the plaintiffs as on the claim before the Court, i.e, the claim as originally filed in the Customary Court for trial de novo. There was no objection to the mode of trial in the High Court by the present appellant nor did any party request for pleadings. Against the decision an appeal was filed in the Court of Appeal, Benin Branch. In the original grounds, there was no mention of purported procedural failure of not initiating the trial de novo with a writ of summons and not filing pleadings. It came up in the additional grounds of appeal filed with leave of Court of Appeal, and it was the ninth ground of appeal at the hearing. It is remarkable that this ground was the one pursued vigorously before the Court of Appeal and is the only one pursued in this Court with any emphasis.

Section 45 Customary Courts Law (Ondo State Cap 33 of 1978) states:

“On the hearing of the appeal the High Court may draw any inference of fact and either

(a) order a new trial on such terms as the Court thinks just;

(b) …………………………………

This is the order made by Ogundare as drawn up and quoted earlier in this judgment. There is no quarrel with this order. What the appellant seems to be averse to in the Court of Appeal and in this Court is that right from that order there is in substance no more appeal before the High Court but a substantive new suit which is subject to the procedural requirement of the High Court. Thus the appellant contends that Order 2 rule 1 High Court (Civil Procedure) Rules of Ondo State stating:

“1. Every action shall be commenced by writ of summons, which shall show the cause of action and be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action.”

must be complied with. Similarly “Order 13 Rules 1-11” of the same Rules must be complied with: that is to say, there must be pleadings. I believe learned counsel for the appellant has in mind Order 14rr 1-11 which relate to pleadings. The learned Justices of the Court of Appeal dismissed the appeal. Order 14 rule 1 (formerly Order 13 rule I High Court (Civil Procedure Rules) of former W. Region) quoted by the Court of Appeal is not mandatory as it is being made to look in the submission of the counsel for appellant. But assuming it is mandatory, does it apply to the case now on appeal before this Court The power of the High Court on hearing an appeal from Customary Court is clear in S.45 Customary Courts Law (supra). Section 46 of the same law provides:

“46. Subject to the provisions of this law, the procedure, practice, and manner of appeals shall be in accordance with the rules made under this law, the High Court Law, and any other written laws empowering the making of such rules.”

The appellant has not faulted the transfer of the case when the High Court allowed the appeal and ordered trial de novo before another judge of the High Court instead of remitting it to another Customary Court. From this stage what, I may ask, was to be tried by the High Court de novo The answer lies in the claim before the Customary Court of first instance. The claim quoted earlier in this judgment is very clear and left no room for ambiguity as to the subject matter and relief sought by the plaintiff. The Customary Courts Rules of Ondo State is very clear about institution of causes or matters. Once the Court has jurisdiction, all the plaintiff has to do is to apply for summons by a written complaint or orally in person. Customary Courts are not to be bogged down in technicalities and the procedures are meant to be not only cheap but as informal and as speedy as possible without destroying the end of justice. The written complaint leading to the issuance of summons is what was quoted earlier as claim. The plaintiff, without the aid of counsel and unable to write either due to illiteracy or ignorance of what to do, can go to the registrar of the Customary Court in person and lodge his complaint orally.”……………. the registrar shall record all the particulars of the claim which are necessary for the completion of the proper summons.” (See Order 3 r 2, r 3(1) (2) Customary Court Rules (supra). Learned Counsel for the appellant seems to rely on Fadiora v. Gbadebo (1978) 1 LRN 97-,104, which is totally irrelevant to this case at hand. Fadiora was decided on what to make in trial de novo of evidence in the previous trial. In this case the contention is in lack of writ of summons and pleadings. Counsel relied heavily on these two requirements needed for ease of trial in the High Court (Civil Procedure) Rules (Cap 45, Ondo State Laws 1978) if, before getting to the stage of pleadings the parties can settle issues. There certainly will be no need to file pleadings and the matter can be determined without pleadings. The purpose of pleadings is to present certainty in the issues between the parties. If for any reason, there is no dispute as to the issues, and the parties fight the case to conclusion without any of them asking for pleadings, and judgment is entered on those issues, no party will be heard that because there were no pleadings the trial is a nullity. This will be an absurd manner of attacking a trial. I can find no substance in the cases cited to support the appellant’s contention such as Skenconsult v. Ukey (1981) 1 S.C.1, and Ariori v. Elemo (1983) 1 S.C.LR. 1, 5.

In the instant case the summons issued out in Customary Court was based upon a complaint by the plaintiff. it does not matter whether the complaint is headed “complaint” or “claim”, once the substance of the claim and issues before the court are clear. The transfer of the complaint for trial by the High Court has not negatived the complaint and to lead to starting with the taking out of a fresh writ as under Ord. 2 r 1 High court Rules. There is nothing either precluding the parties or any of them from asking for pleadings; it is only when the parties exercise this option that Aguocha v. Aguocha (1986) 4 NWLR 566, George v. United Bank for Africa Ltd. (1972) 1 All NLR 347; George v. Dominion Flour Mills (1963) 1 All NLR 71 and National Investment and Properties Co. Ltd. v. Thompson Organisation Ltd. & Ors. (1960) NMLR 99 can be of relevance. If there are difficult points of fact not making the issues clear or difficult points of law needing interpretation in the possible judgment after hearing, it is desirable to have pleadings which the parties can ask for or the Court order suo motu. In this case the issues between the parties are so clear that none of them thought pleadings would be necessary and never asked for any. There is nothing to fault the Court in not ordering pleadings on the facts of the case. The submission that the Court formulated issues for the parties is unfair as there is nowhere in the proceedings this accusation can be justified.

There is nothing in the High Court Law of Ondo State making the failure of pleadings fatal to a case where pleadings are not ordered. Issues can be settled by the parties upon which the case will be tried. That is the purport of Order 13 rr 1-3, High Court (Civil Procedure) Rules. When issues cannot be settled as required by Order 13 (supra), Order 14 is resorted to. There is always, in trial before the High Court, a right to ask for pleadings which the Court cannot refuse. The Court can similarly order pleadings before even parties ask for one. There is therefore nothing mandatory in the pleadings on matters transferred for trial de novo to the High Court by another branch of the High Court in matters emanating from Customary Court and on appeal to High Court. At any rate it must be borne in mind that there must be a subsisting case to be transferred under s.45(a) Customary Courts Law. Once the transfer is made it will be anomalous to assert that the subsisting claim is a nullity because procedure entirely meant for initiating proceedings in the High Court are not followed. The original complaint in the Customary Court apart from being very clear in its purport, it is as good as any writ taken in the High Court as it complies perfectly with the requirements of Customary Courts Law. The trial started and ended without any complaint by either side.

As there was no request nor order made for pleadings, the parties including the appellant acquiesced in the trial without the necessity for pleadings and the trial was not vitiated. Cases cited by counsel are unfortunately at variance with the situation now before this Court. There is nothing in Nigerian Produce Marketing Company Ltd. v. Compagnie Noga D’importation et D’exportation SS (1971) NMLR 77, 78 on all fours with the present case and are therefore irrelevant.

A final point raised, albeit freely, is the question of onus of proof. This is too elementary. Everybody that asserts must prove and once the plaintiff has proved his case and the defendant raises an issue in his defence within his exclusive knowledge the burden is on him to prove. The appellant has not indicated where there was placed on the defendant/appellant a burden more than he was supposed to bear under the law.

The sum total is that this appeal has no merit on all grounds and I accordingly dismiss it with N300.00 cost to the respondents.

ESO, J.S.C. (Presiding): I had a preview of the judgment which has just been read by my learned brother Belgore J.S. C. and I agree the appeal is devoid of merit and should be dismissed and it is hereby dismissed. I also agree that what is being tried de novo before the High Court is what has been ordered by Ogundare J, to be tried. I would like, however, to comment on the High Court Procedure Rules made under the High Court Law (Cap 45 Laws of Ondo State), in so far as the ordering of pleadings by the Court and the delivering of pleadings by parties are concerned. The main complaint of learned counsel for the Appellants is contained in what in his brief he referred to as “ISSUES FOR DETERMINATION”. These issues are –

1. Whether proceedings can be initiated in the High Court of Ondo State otherwise than by the issuance of a writ of summon to be accompanied and/or followed by a statement of claim.
2. Whether a plaint, summons or claim filed in the Customary Court of Ondo State can form the substratum of a case before the High Court moreso, when that High Court was not sitting as an appellate court over the decision of the Customary Court.
3. Whether parties can by their conduct or through their counsel waive the mandatory provisions of the rules of court. What is the meaning and/or implication of ordering a trial “de novo”
4. Whether a court which is trying a case “de novo” can rely on documents and/or papers filed in the court of first instance, moreso, when the court of first instance was an inferior/subordinate court and when the court trying the case “de novo” was not sitting as an appellate court over that inferior or subordinate court.
5. On whom does the onus lie in a case for declaration of title to land

In so far as particulars 4, 5 and 6 are concerned, I am of the view that the order which Ogundare J. made under s.45(a) of the Customary Court Law (cap 33) that there should be hearing de novo (not a re hearing) should take place in the High Court is sufficient to commence the action in the High Court. At that stage, the plaintiffs could take out a new writ if they so preferred or could rely on the order of the Court as the basis for the hearing by the High Court. In other words the case as formulated originally before the Customary Court.

Order 14 Rule 1-3 of the High Court Civil Procedure Rules made under the High Court Law Ondo State (Cap 45) requires a plaintiff to serve a statement of claim when he takes out a writ which is not endorsed with a statement of claim but then that is where there is a writ.

But then this action was commenced before a Customary Court where the filing of pleadings is not a condition precedent to the commencement of action. Order 13 of the Rules provides for the settlement of issues. In my view, this is not a substitute for Order 14 which makes it mandatory for the plaintiff to file a statement of claim. It is because the action was not originally commenced in the High Court therefore and for other reasons given in the fuller judgment of my learned brother Belgore J.S.C. that I would dismiss the appeal. I abide by all the orders made in the judgment of my learned brother Belgore J.S.C.

ANIAGOLU, J.S.C.: I had read in draft, before now, the judgment just read by my learned brother, Belgore, J.S.C., and I agree with him that this appeal should be, and is hereby dismissed as lacking in merit, with N300.00 costs to the Respondents.

NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother, Belgore, J.S. C. I agree with him that this appeal is without merit.

The two main issue argued by learned counsel for the appellant, Wole Olanipekun, was whether proceedings can be commenced in the High Court of Ondo State otherwise than by the issuance of a writ of summons. Mr. Olanipekun referred to Order 2, Rule 1 of the High Court Civil Procedure Rules of Ondo State and to Section 45(a) of the Customary Court Edict of Ondo State.

The complaint was that after the order of Ogundare J. (as he then was) for a retrial in the High Court, Adeloye, J. (as he then was) ought to have ordered pleadings and that as he didn’t, the proceedings before him were a nullity. He even contended that in every case pleadings must be ordered otherwise the Court would have no jurisdiction. It was conceded that the order of Ogundare, J. for a retrial in the High Court was a valid order under Section 45(a) of the Customary Court Edict, 1978. He also conceded that the High Court had jurisdiction to try the matter at the time of the order in 1980.

I think the short answers to these complaints are first that the order to which learned counsel made reference i.e. Order 2. Rule 1 applies in the case of a new action not heard before. In the instant case the matter originated in the Customary Court and should not fail because pleadings were not ordered. From the summons and proceedings in the customary court, the issues were clear to the parties. Besides, as was rightly pointed out by learned counsel to the respondents, Mr. Akanle, counsel to the appellant did not ask for pleadings in the High Court and he fully participated in the proceedings in that Court.

For these reasons and the fuller reasons set down in the lead judgment I would, and do, dismiss the appeal. I adopt all the orders made by my learned brother, Belgore, J.S.C.

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SC.128/1985