Israel Arum V. Okechukwu Nwobodo (2013)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKA’AHS, J.S.C.
This appeal is a very rare bird to fly at this altitude. The suit which gave rise to the appeal was instituted by the plaintiff now respondent against the defendants/appellants in the Customary Court at Awkunanaw in Suit No.AWK/3/97. His claim was for:
(a) Declaration of title to a customary right of occupancy to a piece or parcel of land known as and called ‘ALA AGU AKPASHA’ which is situate at Akpasha Atugbuoma in Akegbe Ugwu Nkanu West Local Government Area of Enugu State.
(b) Court injunction restraining the defendants, their agents, servants and relations from further trespass into the said land until the matter is disposed of.
The defendants denied the claim. Each of the parties presented their case and called three witnesses a piece. The Customary Court in reviewing the evidence found the witnesses called by the plaintiff to be more credible than those who testified for the defendants and entered judgment in favour of the plaintiff. The defendants were dissatisfied with the judgment of the Customary Court and appealed against it to the High Court. The High Court affirmed the judgment of the Customary Court. The defendants/appellants further appealed to the Court of Appeal which dismissed the appeal. It is from the judgment of the Court of Appeal, Enugu (herein referred to as the lower court) that the appellants have finally appealed to this Court.
The original Notice of Appeal dated 12th and filed 17th February, 2004 contained four grounds of appeal. The further grounds of Appeal dated 24th February, 2004 were filed on 26th February, 2004 (See pages 224 – 227 of the records). From the Notice of Appeal filed, the appellants formulated the following six issues for determination:
(i) Is it right in law that the Penal (sic) of Justices of the Court of appeal that delivered the judgment was different from the Panel of Justices that heard the appeal
(ii) Was Section 36 of the 1999 Constitution of the Federal Republic of Nigeria complied with when Hon. Justice Sule A. Olagunju J.C.A. who did not hear the appeal made very scathing remarks against the appellants which overly influenced the judgment of his two learned Brothers
(iii) Did the plaintiff give evidence of traditional history of the land in dispute for a declaration of title to be made in his favour on that ground
(iv) Was the Court of Appeal right in law when it refused to expunge the evidence of Oko Nwobodo Nta who was not called as a witness and suo motu invoked Section 227 of the Evidence Act without calling upon counsel to address it on that issue
(v) Was the Court of Appeal right in law when it upheld the decision requiring the defendants to prove their case “beyond all reasonable doubts” when no such burden was placed on the plaintiff and when the evidence led by the defendants and their witnesses was not evaluated
(vi) Was the Court of Appeal righty in law when it failed to allow the appeal on the ground that the evidence of the three witnesses for the appellants was not evaluated solely because they came from the same family as the appellants when the respondents failed to address the said issue
On his part the respondent submitted eight issues for determination which are:-
(i) Whether it is correct that the panel of the Court of Appeal Justices which heard the appeal on 22nd September, 2003 was not the same as the panel which delivered the court’s judgment on 4th December, 2003 thereby breaching the appellants’ fundamental right of fair hearing
(ii) Whether Section 36 of the 1999 Constitution dealing with the fundamental right of fair hearing of the appellants was in anyway breached, having regard to the errors of fact in the record of appeal which were corrected by the solemn oath (affidavit) of the Hon. Justice M. B. D. Mensem JCA at page 173 of the record and dated 23rd April, 2004.
(iii) Whether it is correct that it was the judgment of Hon. Justice S. A. Olagunju J.C.A. which in fact influenced the judgments of his two learned brothers who sat with him on the Court’s panel on 22nd September, 2003.
(iv) Whether it was proper for the appellant’s counsel to amend the record of appeal, file additional grounds of appeal and argue issues deriving there from without first obtaining leave of the Supreme Court to do so.
(v) Whether the Court of Appeal was right in holding that the evidence which the respondent led at the trial in proof of his claim was of such quality as to warrant the trial court to give him judgment.
(vi) Was the Court of Appeal right in law when it refused to expunge the evidence of OKO NWOBODO NTA who was called as a witness and was it correct that the Court of Appeal suo motu invoked Section 227 of the Evidence Act without calling upon counsel to address it on the issue.
(vii) Whether the Court of Appeal was right in law when it upheld the decision of the lower courts that the use of the phrase “prove beyond all reasonable doubts” by the trial court did not cause a misdirection with respect to the burden of proof placed on the appellants and in the evaluation of their evidence vis-a-vis that of the respondent.
(viii) Was the lower court right in law when it failed to allow the appeal on the ground that the evidence of the three witnesses for the appellants was not evaluated solely because they came from the same family as the appellants when the respondent failed to address the said issue.
The issues formulated by either party to the appeal should reflect and substantiate the grounds of appeal. See: Dibiamaka v. Osakwe (1989) 3 NWLR (Part 107) 101; Niger Progress Ltd. v. N. E. L. Corporation (1989) 3 NWLR (Part 107) 68. A respondent who has neither cross-appealed nor given a respondent’s notice cannot formulate issues for determination which have no relevance to the grounds of appeal filed. Where a respondent formulates issues for determination which are not related to the grounds of appeal, such issues for determination are incompetent and are liable to be struck out. See: Nzekwu v. Nzekwu (1989) 2 NWLR (Part 104) 373; Emmanuel v. Debayo – Doherty (2009) 1 NWLR (Part 1123) 505.
I have examined the grounds of appeal filed and found that issue iv in the respondent’s brief is a preliminary objection. The respondent did not comply with Order 2 rule 9 (i) of the Supreme Court Rules which requires that-
“A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with ten copies thereof with the Registrar within the same time”
The preliminary objection was not properly raised. Issue iv which does not emanate from any Notice of Preliminary objection is incompetent and it is hereby struck out. Issues (ii) and (iii) in the respondent’s brief were distilled from grounds 5 of the further grounds of Appeal. This Court frowns at proliferation of issues from a single ground of appeal see: Burainoh v. Bamgbose (1989) 3 NWLR (Part 109) 325. Attorney General of Bendel State v. Aideyan (1989) 4 NWLR (Part 118) 646. Utih v. Onoyivwe (1991) 1 NWLR (Part 166) 166 at 214 and Ogunbiyi v. Ishola (1996) 6 NWLR (part 452) 12 at 19. I will discountenance issues (ii) and (iii) as framed by the respondent but consider the appeal on the issues formulated by the appellants.
The main thrust of this appeal deals with the constitution of the panel which heard the appeal at the lower court and the one that wrote the judgment. It is important to draw a distinction between the panel that heard the appeal and wrote the judgment from the one that delivered the judgment.
Section 294 (2) of the 1999 Constitution (as amended) provides that –
“294 (2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing”.
The bone of contention in the appeal is that Hon. Justice Olagunju JCA (of blessed memory) who did not participate in the hearing of the appeal, wrote a judgment which rendered the judgment unsatisfactory and urged this court to set it aside notwithstanding the affidavit that was sworn to by Hon. Justice Dongban – Mensem J.C.A. He cited the cases of Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Ishola v. Ajiboye (1994) 6 NWLR (part 352) 506 and Shuaibu v. Nigeria Arab Bank Ltd. (1998) 5 NWLR (part 551) 582 in support. Learned counsel went further to contend that the judgment of the Court below was overly influenced by the judgment of Olagunju J.C.A. who did not hear the appeal. Learned counsel argued by citing Section 36 of the 1999 Constitution that the aim of the provision is to imbue the litigant with the right to object to any judge he may justifiably want to be on the panel and by denying him that opportunity his constitutional right to fair hearing has been impinged upon.
Learned counsel for the respondent argued that since the record of appeal was not challenged, the affidavit of Hon. Justice M. B. Dongban – Mensem J.C.A. reflected the panel who took the appeal and it included Hon. Justice Olagunju J.C.A .who wrote a concurring judgment as provided by Section 294 (2) of 1999 Constitution. Having written and delivered his opinion it cannot be seriously argued that the appellants’ fundamental right of fair hearing has been breached. He contended that neither in the leading judgment of Hon. Justice M. B. Dongban – Mensem J.C.A. nor in the concurring judgment of Hon. Justice Mahmud Mohammed J.C.A. (as he then was) was any reference made directly or indirectly to the judgment written by Hon. Justice S. A. Olagunju J.C.A. to justify the complaint of the appellants that it was his judgment that influenced the findings and conclusion reached in the other two judgments.
The appellants filed the two additional grounds of appeal dated 24th February, 2004 on 26th February, 2004. On 23rd February, 2004 which was three days before the additional grounds were filed, Hon. Justice M. B. Dongban – Mensem J.C.A. who delivered the leading judgment deposed to an affidavit in which she averred as follows:-
“1. That Appeal No.CA/E/60/2002; Israel Arum and Okechukwu Nwobodo was heard and determined by this Panel to wit:-
Hon. Justice Mahmud Mohammed PJ
Hon. Justice Sule Aremu Olagunju J.C.A.
Hon. Justice Monica B. Dongban – Mensem J.C.A.
- That on the 4th December, 2003 the lead Judgment of the Court was delivered by me in the open court while Hon. Justice Mahmud Mohammed PJ and Hon, Justice Sule A. Olagunju J.C.A. concurred.
- That in my Record book of the said 4th December, 2003 I inadvertently wrote the name of the Hon. Justice J. A. Fabiyi as member of the Panel instead of Hon. Justice S. A. Olagunju”
(see page 173 of the record).
The record was thus amended before the appellants filed the additional grounds of appeal wherein they complained of the panel that heard the appeal being different from the one that wrote the judgment in appeal No.CA/E/60/2002. The appellants were aware of the amendment to the record and if they were not satisfied, they ought to have challenged it before proceeding to file the additional grounds of appeal. Learned counsel for the respondent is on firm ground when he submitted that the appellate court is bound by the record of proceedings on which the appeal is based and this is subject to this court invoking its power under Section 22 of the Supreme Court Act, 1990 to amend any defect or error in the record. See: Sarpong v. COP 12 WACA 26 at 27; Nigerian Produce Marketing Co. Ltd. v. Compagnie Noga D’ Importation D’ Exportation SS (1971) 1 NMLR 223 at 226.
It is the duty of the appellant to ensure that the records which he proposes to challenge at the Supreme Court are made available to the Court. See Uwechia v. Obi & Ors. (1973) 2 SC 1 at pages 5 – 6; Obiamalu v. Nwosu (1972) 2 SC 15 at 17 and Omoni v. Tom (1991) 6 NWLR (Part 195) 93. Since the appellants neither challenged the record or applied to this Court to expunge the affidavit of Hon. Justice M. B. Dongban – Mensem J.C.A. on 23rd February, 2004, there is a strong presumption that the record of appeal which was transmitted to this court containing the averments in the affidavit reflects the panel of Justices who heard the appeal on 22nd September, 2003.
It does occur from time to time that the registry staff who either paste or write out the names of Justices that sit on a panel to hear any matter do make mistakes and this can go unnoticed by the presiding Judge as happened in the present appeal. It is with a view to correcting the anomaly that Hon. Justice M. B. Dongban – Mensem J.C.A. deposed to the affidavit. It would have been otherwise if the depositions came after the appellants had filed the additional grounds challenging the composition of the panel which sat to hear the appeal. The fact that the Presiding Justice signed the record which depicted the panel that sat on 22/9/2003 to include Hon. Justice C. B. Ogunbiyi instead of Hon. Justice S. A. Olagunju does not cure the defect. Furthermore, that learned counsel applied for the certified true copy of the records of proceedings of 22/9/2003 still did not cure the error committed in the listing of the panel lists that heard the appeal. It is only the affidavit deposed by the Honourable Justice Dongban – Mensem who wrote the leading judgment that effectively cleared the air on the panel that heard the appeal.
The foregoing notwithstanding, even if the panel that gave judgment was differently constituted from the one that heard the appeal, this will not result in rendering the judgment a nullity. The same scenario played itself out in Shuaibu v. Nigeria – Arab Bank Ltd. (1998) 5 NWLR (Part 550) 582 where Y. O. Adio, J.C.A. (who was not in the panel that heard the appeal) wrote a contributory judgment agreeing with the leading judgment and Hon. Justice Okezie who took part in the appeal had concurred with the leading judgment.
On appeal to this Court, the appeal was dismissed. In the leading judgment delivered by Wali J.S.C., after setting out section 258 (1), (2) and (3) of the 1979 Constitution, held that subsection 3 clearly provides a solution to a situation like the one at hand as it stated that where the decision of the Court consists of more than one Judge, the concurring opinion expressed by the majority Justices shall be the binding judgment. Section 258 (3) 1979 Constitution which has been re – enacted as Section 294 (3) of the 1999 Constitution (as amended) states –
“A decision of a court consisting of more than one Judge shall be determined by the opinion of the majority of its members”
In his contributory judgment Ogundare, J.S.C. after setting out the constitution of the panel that heard the appeal and the one that ultimately delivered judgment which included Adio J.C.A. put the following questions to which he provided an answer after reviewing earlier decisions on the matter.
He said:
“To my mind, it would appear that the Hon. Justice Adio J.C.A. who was not present at the oral hearing of the appeal participated in judgment. The questions then arise: would his participation amount to the proceedings in the Court of Appeal being null and void, as contended by the appellant in the appeal before us Or would the proceedings just be merely irregular, as contended by the respondent”
After setting out Section 226 of the 1979 Constitution and reviewing earlier decisions of WACA and the stand taken by Ademola CJN in Adeigbe v. Kusimo (1965) NMLR 286; (1965) 4 NSCC 188 and Madukolu v. Nkemdilim (1962) ANLR 581; (1962) 2 SCNLR 341 he arrived at the following conclusion on page 605 –
“The correct position, therefore, is that the complaint of the appellant before us that Adio J.C.A. participated in the judgment when he did not join in the hearing is at best, a complaint of irregularity which unless it occasions a miscarriage of justice, will not vitiate the proceedings of the Court below”
After reproducing Section 258 (3) 1979 Constitution, he continued –
“Of the three Justices that heard the appeal on February 20, 1991, two, that is, Ndoma – Egba and Okezie JJCA ruled in favour of allowing the appeal before them. They constituted a majority of the three Justices that heard the appeal. What it means is that even if Mukhtar J.C.A. had dissented, her dissent would have had no effect on the judgment that the appeal was allowed. Therefore, in my respectful view and having regard to the circumstances, the participation of Adio J.C.A. in the judgment of the court below regrettable as it is, did not vitiate the proceedings of the court below. The position would have been otherwise had Okezie J.C.A. or Ndoma – Egba J.C.A. dissented and Adio J.C.A. had joined either of them to form a majority”
In Adeigbe & Anor. v. Kusimo & Ors; (1965) 4 NSCC 188 Ademola CJN held thus:
“In a complaint of nullity the test is whether the complaint is extrinsic to the adjudication; but the plaintiff’s complaint, which was based on the variation in the trial bench, was at bottom a complaint that the judgment could not be satisfactory on the ground that those who gave it heard all the witnesses, and did not pertain to any matter of jurisdiction, therefore the judgment was not a nullity”
In that judgment Sir Adetokunbo Ademola CJN observed at page 191 supra that –
“We are in no doubt about the correctness of what the learned appeal Judge said in his judgment that there are abundant decisions in the High Court and in the West African Court of Appeal on the point that where a court is differently constituted during the hearing of a case, or on various occasions when it met or where one member did not hear the whole evidence, the effect on the proceedings is to render them null and void. The learned judge had in mind among others the following cases –
Egba N. A. v. Adeyanju (1936) 13 NLR 77; Tawiah III v. Ekwudzi 3 WACA 52; Otwiwa v. Kwaseko 3 WACA 230; Damoah v. Taibil 12 WACA 167; Runka v. Katsina N. A. 13 WACA 98”
He took time to explain the difference between the cases where the judgment is declared null and void and those where the judgment is considered to be unsatisfactory or irregular on account of the variation in the trial bench in these words:
“In the first of these cases, in which the defendant’s witnesses were not heard by two members of the Court, the principle was enunciated that a judgment could not be allowed to stand which was given by judges who had not heard all the evidence; in the other four cases, the appeal court expressly held that the proceedings were a nullity on that account…”
The picture that emerges from a discussion of the decided cases including the notorious case of Gabriel Madukalu v. Johnson Nkemdilim supra where Bairamian F. J. after enumerating the features that make a court competent and ending with the statement that –
‘Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication’ is that if the composition of the panel changes while oral evidence is still being taken and the re-constituted panel reaches a decision, that decision will be declared a nullity. The reason is not fat to seek. A trial court basically deals with evaluation of evidence and one of the key ingredients to be considered is the credibility of witnesses where their demeanour forms an integral part of that evaluation. Where the evaluation is based purely on the printed records, the overriding consideration is whether the burden of proof has been discharged. Where the latter is the case, it does not matter if the panel that heard the case varies, the judgment would at best be declared irregular but would not be nullified unless the irregularity occasioned a miscarriage of justice.
Apart from alleging that the appellants’ right to fair hearing as provided under section 36 (1) 1999 Constitution has been infringed since they could not object to Justice Olagunju, JCA being a member of the panel for whatever reason other than the fact that he made scathing remarks about the appellants in his judgment, there is nothing on the record to substantiate learned counsel’s submission that Justice Olagunju’s judgment influenced the judgment of Hon. Justices Mahmud Mohammed and Dongban – Mensem, JJCA. Consequently, a variation in the bench does not render the judgment thereby delivered a nullity. The appellants’ complaint that Olagunju, J.C.A. participated in the judgment when he did not join in the oral hearing is at best a complaint of irregularity which has not occasioned a miscarriage of justice. Issues 1 and 2 which were distilled from additional grounds 5 and 6 are resolved against the appellants in favour of the respondent.
The remaining four issues have to do with evaluation of evidence and the conduct of proceedings in the Customary Court. The complaints contained in issues three and four essentially have to do with asking this Court to re-evaluate the evidence adduced before the Customary Court of Awkunanaw for which there was a concurrent findings of fact by the High Court and the Court of Appeal. The three lower courts arrived at the same conclusion. The attitude of this Court is to discourage appellants coming here on adventure of attempting to set aside concurrent findings of fact made by two or more lower courts. Unless the findings of fact as accepted by the trial court which was upheld by the High Court sitting on appeal and further affirmed by the Court of Appeal is against the trend of evidence or is based on evidence that in law is inadmissible this Court will not interfere with such findings. See: Adeleke v. Aserifa (1987) 1 NWLR (Part 49) 284; Chukwuogor v. Obiora (1987) 3 NWLR (Part 61) 454 at 457; Jimoh Garuba v. Isiaka Yahaya (2007) 3 NWLR (Part 1021) 390. The explanation of this principle is simple and it is this: the trial court had the best opportunity of seeing the witnesses and hearing them give evidence; that court was best placed to assess such evidence bases on the demeanour of each witness. The appellate court has not got these opportunities, it only sees written records and counsel who are not legal witnesses. And so when the High Court agreed with the findings of fact made by the Customary Court which were affirmed by the Court of Appeal, the attitude of this Court is clear; the concurrent findings of fact of the courts below will never be disturbed so far as the findings are not tainted with miscarriage of justice. See Mogo Chikwendu v. Mbamali (1980) 3 SC 31; Ojomu v. Ajao (1983) 9 SC 53; Lokoyi v. Olojo (1983) 8 SC 61, Onobuchere v. Esegine (1986) 1 NWLR (Part 19) 797 at 804.
Even though the parties called equal number of witnesses, the trial Customary Court was justified in attaching more weight to the evidence of the plaintiff’s witnesses than those called by the defendants/appellants.
The 1st plaintiff’s witness, Okonkwo Ani said that he bought the land where he built his house from the plaintiff s father. He hailed from Umuigwen Ngene in Umuatugbuoma Akegbe Ugwu Awkunanaw, the same area as the defendants. He further stated that they were empowered to purchase parcels of land from the owners of the area for purposes of libation and cultivation and he is the only one from Umuigwen Ngene who bought a portion of land from the area in dispute. Ben Igwe who testified as PW2 said both parties were related to him. In his evidence he stated as follows at page 35 of the records on how the 1st defendant went into the disputed land:
“We have a common boundary with the people of Ugwu Agba of Amechi Awkananaw. Ugwuagba people trespassed into our people’s land area and we objected to it. Later Ugwu Agba people realised their mistake and accepted that they actually trespassed into our area and withdrew from it. When peace was restored between the two communities, Umuatugbuoma directed citizens from our community to move into the area for the purpose of cultivation and in agreement with the owners of the land. Onyeabor Arum was among those who went into the area, for the purpose of cultivation. After sometime, Israel Arum used caterpillar and levelled the whole area. Nwobodo Ewo grew annoyed because he levelled the portion without his permission as the owner of the land. He then suspected that Israel Arum was claiming the place as his own the matter was reported to Umuatugbaoma who after looking with the case decided that Israel should give an oath in respect of the land as the owner or in alternative, Nwobodo should give him an oath to take in the same respect. But Israel and brother refused to take or give an oath to Nwobodo. Umuatugbuoma decided that they will stand behind Nwobodo whenever Israel and brother may take the case to”
The cross-examination of PW2 did not elicit any adverse evidence which could render his evidence in chief suspect or unreliable.
PW3, Martin Arum who shared the same area with the plaintiff’s family testified that the defendants had no parcel of land within the area at all. The defendants on the other hand called John Ani, Amushi Ugwu and Samuel who testified as DW1, DW2 and DW3 respectively. DW1 testified that Israel Arum and Onyeabor Arum are of the same parentage with him. DW2 also testified that the land belonged to them (the defendants) of whom he was a part and to prove that the land was theirs (defendants), their youngest brother, Nweke Aniwegbe was living on the land while DW3 stated that the plaintiff (Nwobodo Ewoanshi) wanted to forcefully take away the land from Israel Arum who is his brother.
The trial court reviewed the evidence called by the parties and observed that all the witnesses called by the defendants came from the same family with them while those of the plaintiff came from different families. The Court doubted the credibility of the defendants’ claims as well as the evidence called since they did not call independent witnesses to testify in proof of their claims. In the same vein the court accepted the evidence called by the plaintiffs and entered judgment in their favour.
The evidence of a boundary neighbour and customary tenant who are not related to the claimant is certainly weightier than that of witnesses who are blood relations of the claimant since the latter would merely be protecting their interest in the disputed property. In this regard the evidence of PW1 is against interest which carries the greatest weight and will go in favour of the plaintiff. See: Chief Falade Onisaodu & Anor. v. Chief Asunmo Elewuji & Anor. (2006) 13 NWLR (Part 998) 517; Ojiegbe & Ors. v. Okwaranyia & Ors. (1962) ALL NLR 605.
The Customary Court was therefore right to place more weight on the evidence given by the plaintiff’s witnesses. The High court on appeal was also right to state that “much as the defendants’ witnesses are not disqualified from testifying for the defendants on ground of their being related to them, the fact that a witness is a blood relation of the party who called him can make the evidence of such a witness less pungent”.
The lower court considered the issue and stated rightly that it was the duty of the trial court which saw and heard the witnesses, assessed and observed their demeanour that was in the best position to decide which witness to believe. In this case the trial court ascribed probative value to the evidence adduced by each party and it is not the function of the appellate court to replace its views for those of the trial court. This case has gone through the mill and it is not at this stage that the evaluation of evidence will be altered in favour of the appellants.
The appellants also made heavy weather of the use of the phrase “proof beyond reasonable doubts” by the trial court to argue that no such burden was placed on the plaintiff/respondent and it was therefore unfair to expect the defendants/appellants to prove their case beyond reasonable doubt.
The High Court observed that the trial court delighted itself in profuse use of this phrase in the judgment but pointed out that the trial court was a customary court not versed in the intricacies of the rules of evidence and the provisions of the Evidence Act. The lower court felt the issue had to do with evaluation of evidence which the High court embarked upon and in conclusion agreed with the High Court that the use of the phrase “proof beyond reasonable doubt” by the trial court was just an exhibition of adjudicative exuberance of no perceptible evidential value.
This court has long recognised the fact that what matters in trials in the Native Courts such as Area or Customary Courts is the substance and not the form. The decisions of such courts are to be accorded respect by appellate courts provided that nothing is done therein which is contrary either to any express requirements of the law or to the principles of natural justice. See: Jimoh Garuba v. Isiala Yahaya (2007) 3 NWLR (part 1021) 390; Okilli v. Isatu 14 WACA 89; Ikeakwu v. Nwankpa (1967) NMLR 224; Iyaji v. Eyigebe (1987) 3 NWLR (Part 61) 527; Ekpa v. Uto (1991 ) 6 NWLR (part 197) 258; Anyabine v. Okolo (1998) 13 NWLR (Part 582) 444.
In Ikpang v. Edoho (1978) ANLR 196, Aniagolu J.S.C. (of blessed memory) stated at page 206 that guidelines have been settled in the following principles in considering cases heard and determined in the Native Courts:
“Firstly in respect of the claims before those courts it is necessary to look at the substance rather than at the form of the writ (Kwamin Boadu v. Kobina Fosu 8 WACA 187; Oluma v. Tsutsu 10 WACA 89); one therefore, should not examine those writs “microscopically” (Udofia v. Apia 6 WACA 216 at 218) or with the finery of a tooth comb;
Secondly, on the question of procedure adopted by those courts in arriving at their decision subject, we must add, to the overriding principle that they must not be allowed to so fundamentally depart from accepted procedures in deciding their cases that they occasion injustice to either party to a case, an appeal court must not be too strict in regard to matters of procedure adopted in those courts (Dinsey v. Ossei & Anor (1939) 5 WACA 177);
Thirdly, generally, great latitude must be given to, and a broad interpretation placed upon Native Court cases – and one may add customary court determined cases – so that the entire proceedings, the evidence of the parties and the judgment must be examined in order to determine what the Native or Customary Court case was all about (Ajayi v. Aina 16 NLR 67). The whole conception and result of the proceedings will show what the parties were fighting for, the matters upon which issues were joined, even if technically framed in inappropriate language from the standpoint of legal technocrats, and the decision of the Native or Customary Court on those issues”
It is also necessary to stress the fact that Area or Customary Courts are to be guided and not to be strictly bound by the provisions of the Evidence Act. All substantive principles of law are useless and legal actions cannot be successfully predicated on such principles in court without the existence of facts. The proof of such facts ultimately determines the proof of Evidence in any litigation.
In Chukwuogor v. Obiora supra Oputa J.S.C. defined Evidence in these words at pages 477 – 478.
“In its broad sense, Evidence encompasses and includes the means employed for the purpose of proving a disputed fact”.
Viewed from the propositions stated above, it will be seen that the complaints of appellants relating to the use of the phrase “proof beyond all reasonable doubts”, taking of evidence during the inspection of the disputed land and the use of the evidence of Okechukwu Nwobodo including the judgment of Olagunju J.C.A. did not amount to any miscarriage of justice and all that the appellants are strenuously trying to achieve in ranking up these complaints is for this Court to disturb the concurrent findings of fact made by the lower courts.
The trial has passed through three strata of courts in which the evidence adduced by the parties was properly evaluated. It is about time that issues pertaining to facts should no longer be entertained by this Court and only serious issues of law should engage the attention of this Court. Appeals such as the present one should attract punitive costs in order to deter would be appellants from embarking on a futile exercise.
I therefore find that the appeal totally lacks merit and it is accordingly dismissed. The judgment of the Customary Court Awkunanaw in Suit No.AWK/3/97 which was affirmed by the High Court Enugu and Court of Appeal Enugu Division is further affirmed by this Court.
There shall be N100,000.00 (One Hundred Thousand Naira) costs awarded against the appellants in favour of the respondent.
SC.172/2004