Chief Israel Opawole V. Lawal Tunbi (2003)
LawGlobal-Hub Lead Judgment Report
WALTER SAMUEL NKANU ONNOGHEN, J.C.A.
This is an appeal against the judgment of the Kwara State High Court of Justice in appeal No. KWS/8A/85 delivered on Tuesday, the 12th day of November, 1985 Coram T.A. Oyeyipo CJ; D.A, Adeniyi J and J.A. Fabiyi J. (as he then was), in which it set aside the judgment of the Upper Area Court I, Ilorin, and restored the judgment of the trial Area Court Grade II Erin Ile which dismissed the claim.
This case has a protracted history starting from sometime in 1956, in the Emir’s court Ilorin. It involves a dispute over the ownership of a piece or parcel of land situate in Kwara State. In 1956, the present parties predecessors-in-title contested the ownership of the land in dispute and the Emir’s court found that the land belonged to one Salami Olokoba, the predecessor in-title to the appellant (in this appeal). Exhibit D is the proceedings and judgment of that court.
Sometime in 1978, the respondent sued the appellant over the same piece of land in the High Court and Upper Area Court in Ilorin but upon the production of exhibit D both cases were struck out.
Meanwhile, the respondent broke and entered the land in dispute and commenced constructing buildings thereon as a result of which the appellant sued the respondent in Ibolo Area Court Grade II, Erin Ile, Kwara State, stating:
“I sued the defendant for entering into my land plot illegally without my consent which land is my forefather’s property owned by us for the past one hundred and sixty years back of which my elder brother Salami, Olorukoba Opawoye fought on this land with the defendant’s older brother Esa Gbile during the year 1956 and the land was awarded to my elder brother in the Emir’s Court Ilorin and the defendant’s family was asked not to tamper with the land again. I want the defendant to quit the land plot forthwith and that the building on the land by the defendant be removed forth-with.”
See pages 43 – 44 of vol, 1 of the record. The respondent denied the title of the appellant and after hearing the witnesses in the case and visiting the locus inquo the trial Area Court, in a reserved judgment refused to enforce the judgment of 1956 by ejecting the respondent from the land in dispute. The appellant was dissatisfied with that judgment so he appealed to the Upper Area Court, Ilorin which, after hearing the appeal allowed same and ordered the respondent to leave the land and also “remove his building from the land” within a stipulated time.
The respondent was dissatisfied with that judgment and therefore appealed to the Kwara State, High Court of Justice which heard same and in the judgment of November 1985 ordered as follows:
“In the result, we allow this appeal, set aside the decision of the Upper Area Court 1, Ilorin and affirm that of Ibolo Area Court Grade 2, which dismissed the claim of plaintiff/respondent”
The appellant was not happy with that decision so he further appealed to the Court of Appeal, Kaduna which allowed the appeal, set aside the judgment of the High Court, Ilorin and restored the decision of the Upper Area Court 1, Ilorin. The respondent felt aggrieved and further appealed to the Supreme Court which, in its judgment delivered in appeal No. Sc. 92/1993 on the 14th day of January, 2000, allowed the appeal, set aside the decision of the Court of Appeal, Kaduna delivered on 23/7/93 and ordered a rehearing of the appeal before a different panel of the Court of Appeal using the respondent’s brief dated 5/3/92 or as may be amended. So this appeal is the re-hearing as ordered by the Supreme Court. In arguing the appeal on the 1st day of April, 2003, learned counsel for the appellant, Raifu Ibrahim Esq., referred the court to pages 9-23 of vol, 2 of the record containing the appellant’s brief of argument filed on 12/12/90 and adopted and relied on same in argument and urged the court to allow the appeal.
On his part, learned counsel for the respondent Roland Otaru Esq., leading Miss. Sumbo Ijayola referred the court to respondent’s brief of argument dated 3/2/92 at pages 48-53 of vol. 2 of the record and adopted same in argument. He then urged the court to dismiss the appeal.
In the appellant’s brief of argument, the following issues have been formulated for the determination of the appeal. These are:
“(1) Whether the procedure adopted by the appellant in seeking to enforce the judgment in exhibit before the Ibolo Area Court II was not right when there was no specific procedure stipulated by the provisions of Order 17 of the Area Court Civil Procedure Rules 1971.
(2) Whether the High Court on appeal Ilorin was right to have held that the doctrine of estoppel res-judiata did not apply in this case inspite of the finding of the Ibolo Area Court II and Upper Area Court 1 Ilorin, that the respondent was the brother of Esa, and that the judgment was in respect of the same land in respect of which there was no appeal.
(3) Whether the respondent who claims his title to the land in dispute through Esa against whom the judgment contained in exhibit “D” was given, was not bound by the term of the said judgment.
(4) Whether the High Court on appeal was right to have set aside the judgment of the Upper Area Court Ilorin on technical grounds inspite of the provisions of S. 61 of the Area Court’s Edict.
(5) Whether the High Court of Appeal, Ilorin was not wrong to have rejected exhibit “D” when it was admitted by the lower court having satisfied itself that it was genuine and the where about of the original certified true copy having been duly explained by the appellant.
(6) Whether the High Court of Justice Ilorin in its appellate jurisdiction had jurisdiction to determine the admission of exhibit “D” (photocopy of certified true copy) when the issue was not raised before the two lower courts, and when no leave of the High Court was obtained before the said issue was raised.”
I must hasten to note that by merely going through the issues as formulated, issues 1 and 4 can conveniently be taken together. I therefore intend to so treat them.
On the other hand, learned counsel for the respondent has stated in the respondent’s brief under the heading issues for determination thus:
“The issues for determination are not those stated by the appellant but the following issues:
(1) Whether the relief sought by the plaintiff in the trial court amounted to an application seeking to enforce the 1995 judgment of the Emir’s court and whether the plaintiff had a right to enforce the judgment in the 1956 suit and if so whether the application could be granted in his case in the light of the fact that the judgment did not define the area of land it affects precisely or adequately.
(2) Whether the photocopy of a certified copy of a judgment which does not show that it was signed by a Judge or other judicial officer authorised to sign a judgment is admissible in evidence in an area court.
(3) Whether the plea of estoppel per res judicatam is available to the plaintiff to ground an action by him and not to oppose or defend action brought against him by the adverse party.”
It must be noted that the respondent has not cross appealed and that it is trite law that issues are formulated based on the grounds of appeal filed. The only grounds of appeal filed in this appeal are those filed by the appellant and none of them complained of the fact that the judgment in exhibit D did not define the area of land to which it relates, neither is there any ground of appeal on the fact that exhibit D was not signed by a Judge or other judicial officer authorised to sign a judgment to make it admissible. In short, it is my view that the issues as formulated by the learned counsel for the appellant best reflected the complaints in the grounds of appeal filed and that they be preferred in determining the appeal.
In arguing issues 1 and 4, learned counsel for the appellant submitted that the procedure adopted in seeking to enforce exhibit “D” before the Ibolo Area Court II was quite right. That the appellant’s complaint before that court was an application to enforce the judgment in exhibit “D”. That at page 46 of the record (vol. 1) the appellant stated clearly that he was applying to the court to stop the respondent from abusing and harassing his people in their land. That the Ibolo Area Court did recognise the fact that the action was for enforcement of a judgment that is why it held that “the application made by the plaintiff to order the defendant to quite (sic) the land in dispute and to remove his building on progress is not allowed as prayed” – see page 115 of Vol. 1.
That the lower court is wrong in insisting that a formal application for enforcement ought to have been presented by the appellant whereas section 61 of the Area Court Edict provides the contrary. That Order 17 rules 1-3 of the Area Court Rules relied upon by the lower court does not lay down any specific procedure for seeking the leave of the Area Court to enforce its judgment. That where there is no specific procedure specified by the law to initiate a particular proceedings, a party can follow any procedure in seeking redress in court provided no miscarriage is occasioned to the respondent relying on Akunnia v. A.-G., Anambra State (1977) 5 SC. 161 at 172-173 and Fajinmi v. The Speaker Western House of Assembly (1962) 1 All NLR (Pt.10) 205. That, in any event, the issue was neither raised at the Area Court nor the Upper Area Court and therefore too late relying on Eboh v. Akpotu (1968) 1 All NLR 220 at 224. Learned counsel then urged the court to resolve the issue in favour of the appellant.
On his part, learned counsel for the respondent conceded that this court has to look at the entire proceedings in the trial Area Court to find out what the plaintiff’s claim before the trial court was.
Learned counsel then referred to complaint and the evidence of the appellant at pages 43 to 48 of the record particularly the first and last sentences of the complaint at pages 43 and 44. That the first part of the complaint conveys the meaning that he brings a suit not that he wants to enforce a judgment previously obtained while the last sentence expresses the relief claimed.
That no provision is made for a party other than one who was the winner in a suit to seek to enforce it directly. That the winner in the 1956 suit died and the appellant, not being the winner cannot enforce the judgment, that the appellant can only use it as a means of proof that his predecessor in-title acquired some title or right by virtue of the judgment and upon proof that the right or title devolved upon him by inheritance or by sale. That it was in this light that the High Court saw the claim and submitted that the High Court is right.
That although as an appellate court the Upper Area Court is entitled to grant an order which a lower court can grant in a proper situation what the Upper Area Court did in this case is not what the trial court is legally entitled to do where an applicant seeks to enforce a judgment. That a trial Court proceeds under Order 22 of the Area Courts Law to order that a writ of possession shall issue which is not what the upper Area Court did in this case.
That even if the appellant had a right to enforce the 1956 suit and had also sought to enforce same, the failure of the suit to show on its face the identity of the land it relates to becomes an insurmountable obstacle – relying on Kwadzo v. Adjei (1944) 10 WACA 274. That there is no provision in the Area Courts Civil Procedure Rules to treat failure to comply with its substantive provisions as mere irregularity. That section 61 of Area Courts Law cannot avail the appellant in this case as he has not applied for the relief seeking leave to enforce the judgment at all. That if he had sought leave improperly, then section 61 would have come into play where he failed to comply with certain procedural requirements.
That the section cures procedural irregularities not failure to make an application that ought to have been made. That the Upper Area Court wrongly applied section 61 and that the High Court was right in setting aside the order of the Upper Area Court.
In considering issue No.1, it is important to note what the appellate High Court said concerning the matter. At pages 168 to 169 of Vol. 1 of the record, the High Court held as follows:
“The claim before the court is simply for trespass and orders, for ejectment and for the removal of buildings. We are convinced that a full trial is desirable for determining these issue contrary to the opinion held by the Upper Area Court.”
I had earlier in this judgment reproduced the claim of the appellant before the 1bolo Area Court 2. I will however repeat it here:
“I sued the defendant for entering into my land plot illegally and without my consent… which my elder brother Salami Olorokoba Opawoye fought on this land with the defendant’s elder brother Essa Gbile during the year 1956 and the land was awarded to my elder brother in Emir’s Court, Ilorin, and the defendant’s family was asked not to tamper with the land again. I want the defendant to quit the land plot forthwith and the building on the land by the defendant be remove forthwith.”
The above claim is what the learned appellate High Court held sounds in trespass and order for ejectment simpliciter. Learned counsel for the respondent has submitted that the lower court is right in so holding while learned counsel for the appellant contends that the court is wrong. It is my considered view that the claim of the appellant as reproduced supra was very clear and precise. It is trite law that when dealing with cases that originate in the Area Court or Customary Courts what the High Court is concerned with is to examine the totality of the proceedings to see whether substantial justice was attained and not to rely on technicalities. At pages 46 of the record (vol.1) the appellant, while testifying, made the following application:
“I am applying to the court to stop the defendant from abusing and harassing my people in our house.”
From the above, it is my view that the substance of the claim of the appellant before the 1bolo Area Court Grade 2 was for the enforcement of the earlier judgment of the Emir’s Court, Ilorin delivered in 1956 and tendered and admitted in the said Area Court as exhibit “D”. It is also my view that the said Area Court was never in doubt as to the action being what has been stated above for it stated at pages 114 and 115 of the vol. 1 of the record inter alia as follows:
“furthermore this case is a quit order one and not a land case where parties will have to back their evidence with historical facts although the evidence of the defendant and his witnesses showed this, but we did not go into these historical facts like how one person moved or migrated … but we went into points which really showed whether the defendant is to be given a quit order or not …”
The Area Court then concluded thus:
“The application made by the plaintiff to order the defendant to quit the land on dispute and to remove his building on progress is not allowed as prayed.” (Italics supplied by me.)
Now, the Area Court found that it would not order the ejectment because there was no trespass by the respondent. On the other hand the Upper Area Court after evaluating the evidence, found that there was trespass and accordingly ordered the ejectment of the respondent from the land. That being the case there was no dispute as to the nature of the claim of the appellant in both the trial Area Court and Upper Area Court. Both Courts agree that he was simply asking the court to enforce the judgment. The trial Area Court found the case not to be a land dispute though it erroneously heard fresh evidence of title to land. It has to be noted that despite this very important finding there was no appeal on the issue either to the Upper Area Court or the appellate High Court. From the above premises it is very clear and I hereby hold that the High Court clearly erred when it held that the appellant was claiming declaration of title to the land and trespass simpliciter.
It must also be noted that there was no appeal against the judgment of 1956 therefore the attempt by the respondent to reopen the 1956 case by denying the title of the appellant to the land in dispute in the Area Court, when he was sued for ejectment is of no moment.
It is, however, trite law that in an appeal from a decision of a customary or Area Court, an Appeal Court should examine the records as men of common sense and not as English Lawyers applying English Rules of evidence, procedure and substantive law.
That being the case, great latitude is always given to and a broad interpretation put upon such cases.
To that extent, it behoves on the appeal court to decide all such matters according to substantial justice without undue regard to technicalities – see Balogun v. Oligbede (1991) 6 NWLR (Pt.208) 223; Ekpa v. Utong (1991) 8 NWLR (Pt.197) 258, Ekanem v. Akpan (1991) 8 NWLR (Pt.211) 616.
On the issue of irregularity in the procedure adopted by the appellant in the enforcement of the judgment as argued by learned counsel for the respondent, it is important to note that the issue was never raised at the trial or on appeal to the Upper Area Court, by the said respondent. It is my considered view that the respondent having failed to object to the procedure for the enforcement of the judgment adopted before the trial Area Court could not on appeal to the High Court validly object to such procedure. The appellant stated clearly that he wanted the respondent ejected because of the judgment of 1956.
That apart, learned counsel for the respondent has contended that the appellant was in breach of Order 17 Rules 1-3 of the Area Courts (Civil Procedure) Rules, 1971. The said Order 17 rules 1-3
provide as follows:
“1. When a person desires to enforce an order that has been made in his favour by a court he may apply to that court for execution.
2. Execution shall not normally be issued until fourteen days after the day of the date of the order; provided that the court may if it shall think fit in any case make a special order for immediate execution.
3. Execution shall not be issued after the lapse of two years from the date of the order: provided that the court may if it shall think fit in any case grant leave for execution to be issued after the lapse of two years.
It is clear that the above provision does not contain any specific procedure for the enforcement of a judgment and it will be unsafe to read any into it.
That apart, it is trite law that the fact that there is an irregularity in law does not by itself mean there is an error in law. Such irregularity only becomes an error if it results in miscarriage of justice – see Kalu v. Odili (1992) 5 NWLR (Pt.240) 130, Anla v. Ayanbola (1977) 4 SC 63. In the present case, it is my view that the respondent has not shown that any miscarriage of justice occurred in this case following the method adopted by the appellant in enforcing the judgment of 1956 exhibit “D”. In short, it is my view that issues 1 and 4 be and are hereby resolved in favour of the appellant.
On issues 2 and 3 which the appellant’s counsel argued together, learned counsel submitted that the present parties are privies in blood and interest to the parties in exhibit “D”. That the High Court agreed with this in substance but made a technical distinction by saying that the parties in exhibit D fought the case on their personal capacities, while in the present case, the parties fought in their representative capacities. That this finding by the High Court is not borne out of the record particularly the complaint of the appellant which is against the respondent personally. Relying on Elekia v. Ogalle (1977) NCAR 164 at 165 – 166 learned counsel urged the court to hold that the parties are the same.
That the High Court erred in holding that the land in dispute in this case was not the same as that decided in exhibit “D”. That the findings of Ibolo Area Court 2 after visiting the locus in quo is to the effect that the land in dispute is the same as that in the 1956 judgment.
That there was no appeal against this specific fundamental finding and so it was not set aside. That the High Court therefore erred in making a contrary finding when the earlier finding was never challenged – relying on Green v. Green (1987) 3 NWLR (Pt.61) 480; (1987) 7 SCNJ 255.
That exhibit E also shows that the parties have been fighting over the same piece of land. That before exhibit D was entered the court visited the locus and made findings. Relying on Iyaji v. Eyigebe (1987) 3 NWLR (Pt.61) 523; (1987) 7 SCNJ 148 at 157 learned counsel submitted that the findings by that court and the trial Area Court are sufficient to prove the extent of the land being claimed by the appellant.
That the High Court is wrong to have held that the judgment in exhibit D could only be used as a shield and not a sword in view of the decision in Iyowuawi v. Iyowuawi (1987) 4 NWLR (Pt.63) 61.
Learned counsel then urged the court to hold that the doctrine of res judicata applies to the facts of this case and resolves the issues in favour of the appellant.
On his part, learned counsel for the respondent submitted that exhibit D cannot be used to ground a plea of res judicata or estoppel because it cannot be tied to a particular piece of land or plan. That the trial court, at page 112 of the record did find that the land was uncertain hence the decision dismissing the appellant’s case. That in every land case the identity of the land is important, relying on Ndeze v. Chidebe (1988) 1 SCNJ 104; Akeredolu v. Akinremi (1989) 3 NWLR (Pt.108) 164; (1989) 5 SCNJ 71.
From the above, it is very clear that the respondent’s contention on the applicability of the doctrine of res judicata is limited to the argument that there is no certainty that the land in dispute in this case on appeal is the same as that in exhibit ‘D’; apart from the argument that a plea of res judicata must fail because it cannot be used as a sword but a shield relying on Ukaegbu v. Ugoji (1991) 6 NWLR (Pt.196) 127; (1991) 7 SCNJ 244 (Pt.11) 257 to 258.
That being the case, it is my considered view that the learned counsel for the respondent has conceded the presence of every other constituent for the applicability of the doctrine of res judicata; such as the parties being the same and the issues or claim being also the same. Therefore, the only question to be decided in this respect is whether exhibit “D” is concerned with the same subject – matter as the judgment on appeal before this court.
To answer the question, it is necessary to point out that there was no appeal against the judgment of 1956 – exhibit “D” and that there is nothing to suggest that the Emir’s court did not have the jurisdiction or competence to determine the issue of ownership of the land in dispute before it. From the record, it is not disputed that it was the appellant who initiated the action leading to this appeal by asking for the enforcement of the judgment earlier entered in favour of his privy against the privy of the respondent. It is also clear from the record that the Emir’s court investigated the land in dispute and identified its boundaries before it entered judgment. The land was inspected by trial court as a result of which it found as follows:
“Considering the whole case before us, it is clear that the land in dispute is situated at the outskirts of the town of Ira … the land is a fairly large area of land … ” see page 107 of vol. 1 of the record.
The trial court also held that:
“From the documents tendered before the court by the plaintiff, it is clear that this land case had gone into various courts in Ilorin, first in the Emir’s court of old, the High Court and the Upper Area Court. The proceedings in the Emir’s court showed that the land has been awarded to the plaintiff’s family …”see page 108 of vol. 1 of the record.
It can be seen clearly from the above passages in the judgment of the trial Area Court that the subject matter in the two suits is just the same. That being the case, can it be said that the Upper Area Court is right in applying the doctrine of res judicata to the facts of the case as it did. The High Court has held that the Upper Area Court was wrong in so doing while learned counsel for the appellant contends that the High Court is wrong in so holding.
It is trite law that the principle of res judicata applies where, on the facts, the subject matter of dispute has already been adjudicated upon to conclusion by a competent court between the parties or their privies.
The doctrine is a rule of evidence where a party or his privy is not allowed to dispute in any subsequent proceedings a matter which had been adjudicated upon previously by a court of competent jurisdiction between him and another or their privies. The doctrine applies where the parties or their privies, issues and the subject matter are the same in the previous action as those in the action in which the plea is raised – see Ofunne v. Okoye (1966) 1All NLR 94, Afisi v. Lawal (1992) 1 NWLR (Pt.217) 350 at 365; Esi v. Chief Secretary (1973) 2 SC 180; Alashe v. Olori-Ilu (1965) NNLR 66; Iyaji v. Eyigebe (1987) 3 NWLR (Pt.61) 523; (1987) 7 SCNJ 148 at 157 etc.
From the facts of this case, it is without fear of contradiction that I hold the view that the principle of res judicata applies to this case. That being the case the respondent is, in law, precluded from disputing the fact that the land in dispute has been declared by a court of competent jurisdiction to belong to the family of the appellant vide exhibit D which was not appealed against. Therefore the findings to the contrary by the High Court on appeal cannot be correct but erroneous.
The High Court went further, however, to hold that even if the doctrine applies, it did not avail the appellant because the court ruled the doctrine cannot be used as a weapon but as a shield. It must be pointed out that the appellant did not relitigate the land in dispute but merely wanted the enforcement of the earlier judgment which was entered in favour of his privy against the respondent.
To do that, he had to produce the judgment in the earlier case which was tendered, admitted and marked as exhibit “D”. Looking at the facts and circumstances of the case the Upper Area Court on appeal by the present appellant held that the respondent cannot deny the existence of exhibit D which is binding on him and cannot relitigate the issue all over again. I am of the view that that court is right.
Finally on this issue, can it still be said that the doctrine of res judicata is only a shield and cannot be used as a sword? In other words, is it an instrument of defence and never for attack in a civil proceedings as held by the High Court?
In the case of Ukaegbu v. Ugoji (1991) 6 NWLR (Pt.196) 127 at 158 the Supreme Court, per Karibi-Whyte, JSC stated the position of the law, inter alia thus:
“It is not denied, as it is well settled, that a plea of res judicata is a shield for the protection of defendant, and generally pleaded by the defendant as a bar to subsequent proceedings by the plaintiff on the same issue and between the same parties or their privies.
The modern trend however as exemplified in recent judicial decisions is that “although the plea of
estoppel is a shield for the protection of the defendant, it can also be validly employed as a sword by a plaintiff” “Chinwendu v. Mbamali (1980) 3-7 SC 31 at 48 Aniagolu, JSC said:
“it has been a long practise in our courts in this country for a defendant to plead a judgment given
against a plaintiff where the plaintiff relitigates the subject matter against him. But the practice is not often employed by a plaintiff against a defendant who raises issues already decided upon in a previous litigation. Nothing however prevents a plaintiff from raising, in the original or further pleadings, estoppel against a defendant who makes assertions in his pleadings contrary to what had been solemnly declared in previous judgment against him.”
(Italics supplied by me).
It has therefore been demonstrated that not only did the appellant not take the action to relitigate the issue already determined which could have made the issue as to whether the doctrine of res judicata can be employed by him as a sword, his action is for enforcement of an earlier judgment of a court of competent jurisdiction in exhibit “D”. Granted that the action is even to relitigate the issue, by the operation of the Supreme Court authority cited in extenso supra, the doctrine can equally be used as a sword. Therefore, either way one look at it, it is clear that the High Court is in error in holding as it did and as such the issues under consideration are hereby resolved in favour of the appellant.
On issue No 5, learned counsel for the appellant submitted that exhibit D was rightly admitted by the Ibolo Area Court Grade II because it is a photocopy of a duly certified true copy of the judgment of the Emir’s Court, and the where about of the original certified true copy of the exhibit was duly explained by appellant. That the representative of Oyun Local Government did confirm the where about of that original. Learned counsel for the appellant then submitted that the High Court erred in rejecting exhibit D for non compliance with the provisions of section 131 of the Evidence Act when the section is inapplicable to proceedings in Area Courts relying on section 1 (4)(c) of the Evidence Act. Ogunnaike v. Ojayemi (1987) 1 NWLR (Pt.53) 760; (1987) 3 SCNJ 69 at 73; Latunde v. Lajinfin (1989) 3 NWLR (Pt.108) 177; (1989) 5 SCNJ 59 at 65 – 60. Learned counsel then urged the court to resolve the issue in favour of the appellant and allow the appeal.
On the other hand, learned counsel for the respondent submitted that the only means by which a judgment of a court can be proved is by tendering the original copy of it or a certified true copy thereof.
That the judgment must be signed by the Judge. That exhibit D was not signed by any Judge. That the fact that a provision of the Evidence Act says that Area Courts are not bound by many sections of the Act including section 131 thereof is no licence for allowing any category of evidence as evidence before Area Courts.
Learned counsel then drew analogy between the facts of this case and cases of rape in the Northern States and stated that where as section 178 of the Evidence Act is not one of the sections which is binding on Area Courts, the courts have been consistent in applying the principle in it to cases emanating from Area Courts as if it were binding because it held that it will occasion miscarriage of justice if a situation arises in which a person may be convicted in an Area Court with uncorroborated evidence while he can be let off the hook and found not guilty on the same evidence by a High Court, relying on Jos Native Authority v. Gani (1968) NMLR 8. That the quality of evidence required to prove the existence and contents of judgment cannot vary from court to court. That section 131 of the Evidence Act set down a standard which is conterminous with the requirements of justice.
That Area Courts are bound to apply the principles irrespective of the fact that they coincide with the requirements of section 131 of the Evidence Act. That once an Area Court decides to accept documentary evidence, though not bound by the Evidence Act, it must satisfy itself that such document is genuine relying on Jayi v. Musa (1978) 1 LRN 243 at 244 to 245. That the case or Salmotu v. Bida (1975) NNLR decided that proof of any judgment or order of a court must be by the record or certified copy thereof in accordance with section 131 of the Evidence Act. That under section 108 of the Evidence Act, the only type of secondary evidence permissible is a certified true copy relying on Dobadina family v. Ambrose family (1969) NMLR 24.
That the case of Tsalibawa v. Habiba (1991) 2 NWLR (Pt.174) 461 decided that apart from recording judgment in writing, the Judge’s signature and date of judgment must be put by the Judge at the time or pronouncing the same. Learned counsel then urged the court to resolve the issue against the appellant and dismiss the appeal.
There is no doubt whatsoever that exhibit “D” is a Photostat copy of a certified true copy of the judgment of 1956 delivered by the Emir’s Court, Ilorin on the land in dispute which the appellant sought to enforce against the respondent. However, the position of both the High Court and the respondent is that since exhibit D is a Photostat copy, it is inadmissible and that the Upper Area Court failed to guide itself on the provisions of the Evidence Act on admission of judgments. It is not in dispute that the provisions of the Evidence Act applicable to the cause of action in the case on appeal; including the then section 131 relied upon by the High court in its judgment (now section 132 of the Evidence Act, 1990) do not apply to judicial proceedings in the customary or Area Courts in Nigeria – see Ogunnaike v. Ojayemi (1987) 1 NWLR (Pt.53) 760; (1987) 3 SCNJ 69 at 73 and Latunde v. Lajinfin (1989) 3 NWLR (Pt.108) 177; (1989) 5 SCNJ 59 at 65 – 66.
Having stated that Area Courts or Customary Courts are not strictly bound by the provisions of the Evidence Act applicable to when the cause of action accrued, but are only to be guided thereby, can it be said that exhibit D is inadmissible before the Area Court which admitted it?
Generally speaking, it is a principle of law, which has become trite, that a Photostat copy of a document is inadmissible in proof of its contents. However, in the present case the document was admitted, as stated earlier, by the Area Court and the issue of its admissibility was never raised on appeal before the Upper Area court which relied upon it and found as a fact that there was a previous litigation between the privies of the parties before it and on the same land.
It is my view that exhibit D being a secondary evidence is admissible if certain conditions are fulfilled; for instance if the party tendering same in evidence explains the absence of the original to the satisfaction of the court. In the present case, the where about of the original certified true copy of exhibit D was explained by the appellant at page 48 of vol. 1 of the record when the appellant, testifying as the plaintiff stated thus:
“The Oba has no say in the affairs of land acquisition because the Oyun Local Government Area has this right and that the documents (proceedings) of courts were attached to the application to make the Oyun Local Government Area be sure and certain that my family has been awarded the land on dispute.” (Italics supplied by me).
From the record, it appears that the trial Area Court was satisfied with the explanation since it relied on same. As already pointed out, the respondent did not appeal to the Upper Area Court on the issue of admissibility of exhibit “D”. That being the case, the respondent is estopped from raising the issue upon further appeal to the High Court against the judgment of the Upper Area Court. It is important to note that it was not the Upper Area Court that admitted exhibit “D” but the trial Area Court and the question of its admissibility was never raised before the Upper Area Court, so it expressed no opinion on same which would have formed the basis of the further appeal to the High Court. It is therefore my considered view that the High Court was in error when it questioned the admissibility of the judgment in exhibit “D”. That being the case, it is my view that the issue be and is hereby resolved in favour of the appellant.
In conclusion, it is my considered view that there are merits in this appeal which deserves to succeed. I therefore allow the appeal and set aside the judgment of the Kwara State High Court of Justice on appeal delivered on 12/11/1985. In its place, I restore the judgment of the Upper Area Court delivered on 14/2/85.
I assess and fix the sum of N10, 000.00 as cost to the appellant.
Appeal Allowed.
Other Citations: (2003)LCN/1415(CA)