Israel Arum Vs Okechukwu Nwobodo (2013)
LAWGLOBAL HUB Lead Judgment Report
KUMAIBAYANG AKAAHS, JSC
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 NkanuWest 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 judgement in favour of the plaintiff. The defendants were dissatisfied with the judgement of the Customary Court and appealed against it to the High Court. The High Court affirmed the judgement of the Customary Court. The defendants/appellants further appealed to the Court of Appeal which dismissed the appeal. It is from the judgement 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 judgement 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 compiled 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 judgement 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 suomotu 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 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 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 wasnot the same as the panel which delivered the courts judgement 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 judgement of Hon. Justice S. A. Olagunju JCA which in fact influenced the judgement 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 appellants 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 judgement.
(vi) Was the Court of Appeal right in law when it refused to expunge the evidence of OKONWOBODO 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 parry to the appeal should reflect and substantiate the grounds of appeal. See: Dibiamakavs Osakwe (1989) 3 NWLR (Part 107) 101: Niger Progress Ltd. vs N. E. L Corporation (1989) 3 NWLR (Part107) 68. A respondent who has neither cross-appealed nor given a respondents 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 vs Nzekwu(1989) 2 NWLR (Part 104) 373; Emmanuel vs Debayo – Doherty(2009) 1 NWLR (Part 1 123) 505.
I have examined the grounds of appeal filed and found that issue iv in the respondents 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 cleardays notice thereof before the hearing, setting out the grounds of objection,and shall file such notice together with ten copies thereof with the Registrarwithin 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 respondents 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: Buraimoh vs Bamgbose (1989) 3 NWLR(Part 109) 325. Attorney General of Bendel State vs Aideyan (1989) 4 NWLR (Part 118) 646. Urih vs Onovivwe(1991) 1 NWLR (Part 166) 166 at 214 and Ogunbiyi vs 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 judgement. It is important to draw a distinction between the panel that heard the appeal and wrote the judgement from the one that delivered the judgement. 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 judgement 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 judgement which rendered the judgement unsatisfactory and urged this Court to set it aside notwithstanding the affidavit that was sworn to by Hon. Justice Dongban Mensem JCA. He cited the cases of Madukolu vs Nkemdilim (1962) 2 SCNLR 341: Ishola vs Ajiboye(1994) 6 NWLR (Part 352) 506 and Shuaibu vs Nigeria Arab Bank Ltd. (1998 ) 5 NWLR (Part 551) 582 in support. Learned counsel went further to contend that the judgement of the Court below was overly influenced by the judgement of Olagunju JCA 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 ofHon. Justice M. B. Dongban -Mensem JCA reflected the panel who took the appeal and it include Hon. Justice Olagunju JCA who wrote a concurring judgement 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 judgement of Hon. Justice M. B. Dongban – Mensem JCA nor in the concurring judgement of Hon.Justice Mahmud Mohammed JCA (as he then was) was any reference made directly or indirectly to the judgement written by Hon. Justice S. A. Olagunju JCA to justifythe complaint of the appellants that it was his judgement that influenced the findings and conclusion reached in the other two judgements.
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 JCA who delivered the leading judgement deposed to an affidavit in which she averred as follows:-
‘1. Thai 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 JCA
Hon. Justice Monica B. Dongban Mensem JCA
- That on the 4th December, 2003 the lead Judgement of the Court was delivered by me in the open court while Hon. Justice MahmudMohammed PJ and Hon. Justice Sule A. Olagunju JCA concurred.
- That in my Record book of the said 4′ December,20031 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 judgement 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 vs COP 12 WACA 26 at 27; Nigerian Produce Marketing Co. Ltd. vs 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 SupremeCourt are made available to the Court. See: Uwechia vs Obi& Ors (1973) 2 SC 1 at pages 5-6; Obiamalu vs Nwosu(1972) 2 SC 15 at 17 and Omoni vs 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 JCA 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 JCA 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 judgement that effectively cleared the air on the panel that heard the appeal.
The foregoing notwithstanding, even ifthe panel that gave judgement was differently constituted from the one that heard the appeal, this will not result in rendering the judgement a nullity .The same scenario played itself out in Shuaibu vs Nigeria -Arab Bank Ltd. (1998) 5 NWLR (Part 550) 582 where Y. O. Adio, JCA (who was not in the panel that heard the appeal) wrote a contributory judgement agreeing with the leading judgement and Hon. Justice Okezie who took part in the appeal had concurred with the leading judgement.
On appeal to this Court, the appeal was dismissed. In the leading judgement delivered by Wali JSC, 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 judgement, section 258(3) 1979 Constitution which has been re – enacted as section 294 (3) of the1999 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 contributor}- judgement Ogundare JSC after setting out the constitution of the panel that heard the appeal and the one that ultimately delivered judgement which included Adio JCA put the following questions to which he provided an answer after reviewing earlier decisions on the matter.
‘To my mind, it would appear that the Hon. JusticeAdio JCA who was not present at the oral hearing of the appeal participated injudgement. The questions then arise: would his participation amount to the proceedings in the Court of Appeal being null and void, as contended by theappellant 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 Adeigbevs Kusimo (1965) NMLR 286: (1965)4 NSCC 188 and Madukoluvs Nkemdilim (1962) ANLR581; (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 JCA participated in the judgement 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 JCA had dissented, her dissent would have had no effect on the judgement that the appeal was allowed.Therefore, in my respectful view and having regard to the circumstances, the participation of Adio JCA in the judgement 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 JCA or Ndoma – Egba JCA dissented and Adio JCA had joined either of them to form a majority’
In Adeigbe & Anor vs Kusimo Ors;(1965) 4 NSCC 188 Ademola CJN held
‘In a complaint of nullity the test is whether the complaint is extrinsic to the adjudication; but the plaintiffs complaint,which was based on the variation in the trial bench, was at bottom a complaint that the judgement 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 judgement was not a nullity’. In that judgement 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 judgement that there are abundant decisions inthe High Court and in the West African Court of Appeal on the point that whereas the 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. vs Adeyanju(1936) 13 NLR 77; Tawiah III vs Ekwudzi 3 WACA 52; Otwiwavs Kwaseko 3 WACA 230; Damoah vs Taibil 12 WACA 167; Runkavs Katsina N. A. 13 WACA 98’
He took time to explain the difference between the cases where the judgement is declared null and void and those where the judgement isconsidered 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 defendants witnesses were not heard by two members of the Court, the principle was enunciated that judgement 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 Madukolu vs 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 proceeding sare 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 demeanor 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 judgement 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 judgement, there is nothing on the record to substantiate learned counsels submission that Justice Olagunjus judgement influenced the judgement of Hon. Justices Mahmud Mohammed and Dongban Mensem, JJCA. Consequently, a variation in the bench does not render the judgement thereby delivered a nullity. The appellants’complaint that Olagunju JCA participated in the judgement 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.