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Kplishi Kuusu Vs Vanger Udom (1990) LLJR-SC

Kplishi Kuusu Vs Vanger Udom (1990)

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In this suit which started in the Grade II Area Court of Ameradu, Benue State, the respondent/plaintiff claimed against the defendant/appellant for title to a piece of farm land at Ubwage.

The Area court after hearing the parties and their witnesses preferred the case of the plaintiff and entered judgment in his favour on 23rd October, 1981. The defendant appealed to the High Court of Benue State sitting at Gboko which in exercise of its appellate jurisdiction, allowed his appeal and entered judgment in his favour.

This was on 18th March, 1983. The battle between the parties was far from over for the respondent herein appealed against the High Court judgment to the Court of Appeal, Jos Judicial Division. That court (coram: Agbaje, J.C.A. as he then was, Jacks and W.T. Macaulay, JJ.CA.) on 3rd February, 1986 allowed the appeal, set aside the judgment of the High Court and entered judgment in favor of the plaintiff (respondent herein). The defendant/appellant has now appealed to this court.

When this appeal came up for hearing on 4th December, 1989, appellant was present but his counsel was absent. His counsel, J.A. Yaji, Esq. had written to the court informing it of a near fatal accident in which he was involved. He regretted his inability to be present but applied to the court to take the appeal as per his brief of argument dated 19th June, 1989 and filed in this court. That request was granted. Learned counsel to the respondent, I.A. Nomishan, Esq. who was present then adopted the respondent’s brief of argument dated 3rd July, 1989 and duly filed in this court. The appeal has therefore been taken as argued in the briefs of argument of the parties.

Before proceeding to the issues arising in this appeal, I think I ought to deal with the preliminary objection raised by respondent’s counsel on page 7 of his brief of argument. There, he had challenged as incompetent the 4th of the 4 grounds of appeal filed by the appellant to this court. In the said ground, the appellant complained that, “(4) The learned justices of the Appeal Court erred in law in refusing to entertain the plea of res judicata, and lack of jurisdiction raised by the defendant at the trial court and which was wrongly overruled by the High Court on the ground that the names of the parties were not the same.


The issue of jurisdiction can be raised at any time even for the first time at the Appeal Court, as it is fundamental to the competence of the whole action. It was therefore wrong for the justices of Appeal Court to have refused to entertain that plea on the grounds that there was no cross appeal. This ground of appeal is misconceived in the extreme but since it has been raised, let me treat it with dispatch. I shall deal with the other objections to it below, but let me say straight away that the matter was neither raised by way of a cross-appeal nor respondent’s notice before the Court of Appeal.

Even if it was a matter of jurisdiction as claimed by the appellant, it was not even raised in argument before the Court of Appeal as is so obvious from the notes of counsel’s submissions before that court at page 32 of the record. This issue of res judicata arose this way. In the Grade II Area Court, the appellant had, as part of his case, set up a plea of res judicata on the ground that “respondent/plaintiff who is a brother to Zaki Anhungwa is a privy (sic) in exhibit ‘A’ Buruku court proceedings in case No.CV/256/76 dated 14/1/71 has no locus standi in law to sue me, “The Grade II Area Court rejected the defence holding that the area involved in the case exhibit “A” was different from the one in dispute in the instant case.

Although, the High Court gave judgment in favour of the defendant, it also rejected the plea of res judicata holding that “this discrepancy in nomenclature was not explained by the appellant during his argument.” The appellant now wants to agitate this matter before this court. Learned counsel to the respondent has in his brief complained that the appellant neither sought nor obtained leave of this court to raise such a matter.

Appellant’s counsel has on his own side argued that a matter of jurisdiction can be raised at any point. It is not in dispute that a matter of jurisdiction can be raised at any stage of the proceedings even in this court. But is this a matter of jurisdiction There is nothing in the records to how that the jurisdiction of the Area Court Grade II was ever in issue. A plea of res judicata is a special defence and does not question the jurisdiction of the court before whom such a plea is taken.

Both courts in effect held that that defence did not avail the defendant/appellant. This ground does nothing more than raise the issue of whether the plea of res judicata should have been upheld. As I said earlier in this judgment, the appellant neither crossed nor raised a respondent’s notice against the judgment of the High Court on this issue. The appellant, also as I said earlier, did not even raise it in argument before the Court of Appeal.

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At best, this ground of appeal can be taken to be raising a matter which was not taken in the Court of Appeal. Under the constitution, appeals go from the Court of Appeal to this court, and ordinarily this court ought not to entertain any matter, which has not been taken before the Court of Appeal and the opinion of the learned Justices of that court on it ascertained. I say ordinarily because it is settled, and I need not refer to any authorities on this, that this court will grant leave to an appellant to make such a matter if it deals with a substantial issue of law or procedure and to avoid a miscarriage of justice. The appellant has not applied for leave, but if he did, I would have refused it. To grant it would lead to a miscarriage of justice. The appellant went to the Court of Appeal on grounds of appeal he considered important for his case. Having failed there, he now wants to run back to res judicata! That cannot and should not be allowed. Ground 4 of the grounds of appeal is accordingly struck out.

I shall now look at the issues for determination as they relate to the remaining 3 grounds of appeal. In his brief of argument, learned counsel to the appellant formulated the issues thus:

“(a) Whether area courts are not bound by section 179 of the Evidence Law and if they are not so bound, whether they are not bound by native law and custom which oath taking on Swem is necessary and binding on area courts in Benue State and furthermore whether cross-examination and re-examination is binding on the area courts with particular reference to Tiv people.

(b) Whether and assuming that area courts are not bound by section 179 of the Evidence Law, could the area court at one stage of the trial proceedings suo motu adopt a different system and at another stage of the proceeding adopt another system to taking unsworn evidence which the court heavily relied upon in its judgment and contrary to the mandatory provisions of order 13 rules 4 and 5 of Area Courts (Civil Procedure) Rules 1972 and section 20(1)(a) of Area Courts Edict, 1968.

(c) Whether the principles in Sanusi Lala v. Yusufu Morakinyo (1958) W.R.N.L.R. 199 apply to the case under review seeing that in that case the parties were allowed opportunity to cross-examine. ”

The issues for determination formulated by learned counsel for the respondent are not too different from these. It seems to me that the main issue for determination is whether the Grade II Area Court was bound by section 179 of the Evidence Law as held by the High Court. Arising from this is whether the Court of Appeal was right in upholding the evidence of the elders at the locus in quo taken not on oath or affirmation. There was also no cross-examination or re-examination. The members of the Grade II Area Court relied very heavily on that evidence for their decision.

The Court of Appeal set down in detail what transpired at the locus in quo during the proceedings in the trial court. I do not propose to set it down in its entirety. Some portions of it read. After both plaintiff and defendant have shown, we then called on the elders of both sides including their kindred head, Ayaka Abosokpo present on the scene to tell us how the land was and it became disputed one …” hen, after setting down the testimony of elders on behalf of the plaintiff, and elders on behalf of the defendant, as well as that of the kindred head, Ayaka Abosokpo, the record concludes. “After we have seen and heard from the elders and their kindred, we adjourned the case to 23/10/81 for judgment”.

In its judgment, the Area Court made reference to these testimonies of the elders and concluded:

“In our view, the evidence of plaintiff and his witnesses plus that of their kindred head and one elder and what this court have seen by itself. (Sic). Court satisfied with plaintiff by saying that he inherited the land from his fathers.”

It was clear that the Area Court heavily relied on the testimony of the elders and the kindred head. In some other portion of their judgment, they had said, “Court did not believe with evidence of defendant (sic) and his witnesses plus his elders. For defendant said he had case with the brother of plaintiff and he won the case, and brother of plaintiff was ordered by that court to leave the land and quit the house or compound. But as we went to the scene, defendant failed (sic) to show us how that court made its demarcation. When we wanted to know from the elders present on the scene whether Grade II Area Court Buruku tried case here with the brother of plaintiff, Zaki and told us plus their kindred head that Grade II Area Court Buruku did not reach here. . .”

The High Court held that the statements of the elders and kindred head portions of which the trial court had referred to was no evidence and that it was wrong for the trial court to have acted on it. The High Court had referred to section 179 of the Evidence Act as the basis for its conclusion on this issue. It is now necessary to look at section 179 of the Evidence Act or Law. That section provides as follows:

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‘Save as otherwise provided in sections 181 and 182, an oral evidence given in any proceedings must be given upon oath or affirmation administered in accordance with the provisions of the oaths and affirmation ordinance. ”

There is nothing on record to show that the evidence of the elders and kindred head at the locus in quo was given on oath or affirmation. To that extent, there was non-compliance with section 179 of the Evidence Act. The pertinent question which the Court of Appeal asked is whether section 179 of the Evidence Act is binding on the Area Court. Again, recourse must be had to the Evidence Act. Section 1(4) thereof provides as follows:

“This ordinance shall apply to all judicial proceedings in or before any court established in the Federation of Nigeria but shall not apply-

(a) To proceedings before an arbitrator; or

(b) To a field general court martial; or

(c) To judicial proceedings in or before a native court unless the Governor in Council shall by order confer upon any or all native courts in the region jurisdiction to enforce any or all of the provisions of this ordinance.

“It is section 1(4)(c) which is relevant. Section 1(2)(c) of the Evidence Law Cap. 40 Laws of Northern Nigeria applicable in Benue State makes a similar provision and the exception is also to “judicial proceedings in any civil cause or matter in or before a native court…” Area Courts and Customary Courts were the successors of the old native courts. It seems clear to me, as it was to the Court of Appeal, that there is nothing in the Evidence Act which is applicable to the proceedings of the Grade II Area Court (Ameradu). Section 179 of the Evidence Act did not therefore apply to that court. See Ogunnaike v. Ojayemi (1987) 1 N.W.L.R. (Part 53), 760; and Amodu Latunde & Ors v. Bello AD. Lajiufiu (1989) 5 S.C.N.J. 59, 65-66; (1989) 3 N.W.L.R. (Pt.108) 77.

It was also the contention of learned counsel to the appellant that the proceedings of the Grade II Area Court were in violation of the practice and procedure of the Area Courts. Order 13 rule 4 of the Area Court (civil procedure) rules made by the Chief Judge under powers conferred on him by section 65(1)(c) of the Area Courts Law was particularly mentioned. Order 13 rules 4 provides as follows:

“All evidence given before a court and the method by which such evidence may be given and recorded by a court shall be in accordance with the native law and custom applicable to the cause or matter under consideration. ”

There is nothing in the order enjoining the Area Court Grade II or indeed any area court to follow the provisions of section 179 of the Evidence Act or indeed any section of the Evidence Act. Further, in not taking evidence of elders on oath or affirmation at the locus in quo, I am unable to see the native law and custom that was violated. What was the native law and custom applicable to the cause or matter in issue No evidence of this was led by the appellant in the trial court and it is strange that he should now complain that some native law and custom was not followed. I know that appellant’s counsel sought to show, what the native law and custom was in the matter of taking evidence by inference. He contended that since from the record of proceedings the witnesses who gave evidence in the Area Court Grade II did so on oath, that Area Court cannot be said to have adopted any native law and custom sanctioning the taking of evidence in the locus in quo without oath or affirmation.

The assumption here is that there was indeed a native law and custom requiring persons giving evidence to do so on oath or affirmation. In the absence of evidence of any such custom, this is not an assumption that can be made. I think that the most one can say is that the Area Court Grade II in the matter of taking evidence in the court followed the procedure laid down in section 179 of the Evidence Act although it was not bound.

In taking evidence in the locus in quo, it chose not to follow the same procedure. It was neither bound by section 179 of the Evidence Act, nor was there any established native law and custom it had to follow as enjoined by order 13 rule 4. In the circumstances, I hold that the statement of the elders at the locus in quo, though not taken on oath or affirmation, was evidence on which the Area Court was entitled to act. In my view, not only did the High Court lose sight of section 1(4)(c) of the Evidence Act, but it lost sight too of the nature of native court proceedings.

It is substance not form that is of importance when one has to examine those proceedings. In many cases dealing with visits to locus in quo for instance, appellate courts have been unwilling to upset the decisions of native courts because one procedural error or the other has been made. In Edusei v. Denkye 12 W.A.C.A. 121, the complaint was that all the members of the native court did not join in the visit to the locus and that indeed the judgment was based on the report of independent witnesses who visited the locus instead.

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The West African Court of Appeal (per Harragin, C.J) dismissed the appeal holding that it might be tedious for all the members of the court to move to the locus in quo. In Badoo and Ors. v. Ohene Kwesi Ampung & Ors. 12 W.A.C.A., 439, the complaint was that there was no record taken of what transpired at the locus in quo. Once more, the court dismissed the appeal (as per Lewey, J.A. holding that there was a clear indication on the record that members of the native court did inspect the locus and that they gave detailed attention to the disputed boundaries.

On this issue of looking at the substance to ensure compliance with principles of natural justice rather than to form, I think the case of Sanusi Lala & Anor. v. Morakinyo (1958) W.R.N.L.R. 199 to which Agbaje, F.CA. (as he then was) made reference, and which learned counsel to the appellant says is inapplicable, is apposite. This was a case also dealing with what had to be done at locus in quo. Jibowu, C.J. there said in part, “Before finally disposing of this appeal, I would like to make some observations on the procedure of the native court, with particular reference to the evidence taken at the inspection of the compound in question, which Mr. Agbaje criticised on the ground that it was not recorded.

It is quite true that the evidence of each person examined in the compound was not reduced into writing, but a note was made of the gist of the evidence which was taken in the presence of both parties and the truth of the note made has not been challenged by the appellants or by anybody else.

As a matter of fact, the record of proceedings shows that the respondent cross-examined the third plaintiff witness on the result of the examination . . . It is clear that the practice and procedure of native courts do not agree with those of High Courts which adopt the English procedure, but such practice and procedure should not be condemned on that account unless they are found to be prejudicial to a fair trial and likely to lead to a miscarriage of justice. ”

If one was to return immediately to the case in hand, although, the testimony of the elders taken at the locus in quo was neither taken on oath or affirmation nor was there any cross-examination or re-examination, the truth of that testimony has not been seriously challenged. Besides, both sides had a fair opportunity to put forward its own story, with as many as 5 elders putting up a case on behalf of the defendant/appellant. As for the issue of no cross-examination, I am content to adopt the attitude taken by the Court of Appeal. There was no failure of natural justice as the evidence of the elders was taken in the presence of all and there was ample opportunity to correct or contradict any sides testimony considered by either side prejudicial to its case. See also Queen v. The Lieutenant-Governor Eastern Nigeria Ex parte Okafor Chiagbana (1957) 2 F.S.C. 46; S.C. 46 Adedeji v. Police Service Commission (1967) All N.L.R. 67, 74-75.

Finally, although I have held that the Area Court Grade II was not bound by section 179 of the Evidence Act, nor did it act contrary to the provisions of order 13 rule 4 of the Area Court (Civil Procedure) Rules. I would say further and agree with the submission of learned counsel to the respondent that the Area Court Grade II’s failure to take evidence on oath at the locus in quo, if considered a violation of any procedure could not be anything more than a mere irregularity which, on the grounds I had mentioned earlier, did not lead to any miscarriage of justice. Such an irregularity, if it was considered to be one, could be cured by section 61 of the Area Courts Law which provides as follows:

“No proceedings in an Area Court and no summons, warrant, process, order or decree issued or made thereby shall be varied or declared void upon appeal or revised solely by reason of any defect in procedure or want of form but every court or authority established in and for the state and exercising powers of appeal or revision under this edict shall decide all matters according to substantial justice without undue regard to technicalities.”

The result is that this appeal has failed and it is accordingly dismissed. The judgment of the Court of Appeal is hereby affirmed. N500 costs to the respondent.

M.L. UWAIS, J.S.C.:- I have had the opportunity of reading in draft the judgment read by my learned brother, Nnamani, J.S.C. I entirely agree with the judgment. I adopt his opinion as mine. Accordingly, the appeal is hereby dismissed with N500.00 costs to the respondent.

Other Citation: (1990) LCN/2445(SC)

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