Ogbonna Oke V. Nkwoshi Nwizi (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

On the 15th of August, 2008, the respondent herein, as plaintiff filed suit No. OCC/055/2008 in the customary court of Ogbaga in Ebonyi State Claiming for:

1. Declaration of title to the land situate at Ali-Ihe Nwizi Iji Ede Echara.
2. An order restraining the defendant, his agents, friends and relatives from further encroachment on the said land.

After the close of evidence by both sides, the customary court rendered judgment in the suit on the 28th of January, 2009. It was a split decision. The majority judgment which is the judgment of the court held that the appellant is the owner of the Suitland and not the respondent. The minority decision was that the respondent had proved “his case on a balance of probability” and so was entitled to judgment. Dissatisfied with this decision of the court, the respondent on the 9th of February, 2009 filed a notice of appeal, commencing Appeal No. CA/E/10A/2009 to the Customary Court of Appeal of Ebonyi State. Following completion of addresses by both sides, the Ebonyi State Customary Court of Appeal on the 19th April, 2011 delivered judgment allowing the appeal and ordered as follows –

1. The majority judgment of Ogbaga Customary Court in Echiaba Development Centre Ebonyi Local Government Area Ebonyi State of Nigeria delivered on the 28th day of January, 2009 in suit No. OCC/05/2008 between Nkonshi Nwizi v. Ogbonna Oke is hereby set aside.
2. The minority judgment of the court delivered by Hon. Innocent Nwogbaga is hereby restored.
3. The appellant Nkwonshi Nwizi is hereby declared rightful owner of the parcel of land known and called ALI IHE NWIZI IJI situate at Ede Echara Echiaba Development Centre Ebonyi Local Government Area Ebonyi State of Nigeria.
4. Cost in favour of the appellant is assessed at N5000 (Five Thousand Naira).

Not satisfied with this judgment of the said Customary Court of Appeal, the appellant herein, applied for, and on the 17th May, 2011 obtained the leave of that Court to appeal against its judgment mentioned above. Pursuant to the leave to appeal, the appellant on the 23rd May, 2011 filed a notice of appeal commencing this appeal No. CA/E/163/2011 on ten grounds. Both sides have filed, exchanged and adopted their respective briefs of argument. The appellant filed his brief. The respondent upon being served with the appellant’s brief filed his brief. The appellant, upon being served with the respondent’s brief filed his reply brief.

In his brief, the appellant raised four issues for determination as follows-

1. Was the lower court right in discountenancing Exhibit A by not evaluating same and ascribing to it probative value.
2. Was the lower court justified in making finding or applying the native laws or customs on which none of the parties to the suit testified before the trial court in arriving at its decision.
3. Was the lower court right in holding that the disputed land was not abandoned by the Respondent’s father?
4. Was there a proper evaluation of the evidence of the parties on record by the lower court in support of its decision?

The respondent in his brief raised the following issues for determination-

1. Whether the lower court evaluated and ascribed probative value to exhibit “4”.
2. Whether the lower court was not justified in applying the native laws and customs of the people in arriving at its decision and whether the lower court did apply any native law and custom on which no evidence was given at the court.
3. Whether the lower court was right in holding that the disputed land was not abandoned by the respondent’s father.
4. Whether the lower court properly evaluated the evidence of the parties on record.

Since the issues raised by both sides for determination in this appeal are in substance the same, I will adopt the issues as framed by the appellant as the issues for determination in this appeal.

Before I commence the consideration of the issues for determination in this appeal, let me make some observations concerning the unsatisfactory state of the records of the proceedings of the Ogbaga Customary Court. The testimony of each witness is not separately and clearly set out. Some of the testimonies seem to merge into each other, giving an impression of a continuation of the testimony of the initial witness. It is a better practice to clearly separate the testimonies from each other in a manner that will make the testimony of a particular witness obviously distinct from that of another witness. The record must show when the testimony of a witness commenced and indicate that it has come to an end.

I also observed that in many instances, the exact testimony of the witness is not recorded, rather it is the courts report of what the witness said that is recorded. One example is in respect of the testimony of Nkwonshi Nwizi (respondent). It is recorded as follows-

“I am Nkwonshi Nwizi by name I am a native of Ndimbam Okputumo. I am a farmer and fifty years of age why did you come to court? The plaintiff told the court that Ogbonna Oke the defendant is living in my father’s land and refuse to evacuate the land. The plaintiff said that is why I sue Ogbonna to court. The plaintiff also told the court that Ogbonna Oke has sold part of the land.”(sic)

The first two sentences are the direct statements of the witness. The rest are reported statements and can create a fertile ground for avoidable disputations as to what the witness actually meant or did not mean to say. A court’s record of the testimony of a witness in proceedings before it must contain the direct exact words of the witness without glosses, interpolation or embellishments. It should not contain a report or explanation of what the witness said.

Another observation is that the record of the testimonies of witnesses did not clearly indicate when a witness is testifying in examination-in-chief, under cross-examination and under re-examination. In most instances the record state that a witness is asked a question without indicating who is examining the witness. In one instance the record indicate that the court examined both parties. Under the heading “cross-examination by court to both parties:” questions and answers followed without a clear indication of who was being asked what question and who was giving what answer.

The best and more desirable practice of the sequence of recording the testimony of a witness is to first record the testimony in examination in chief, then the testimony under cross-examination by the opposing party, followed by his testimony in re-examination clarifying ambiguities caused by the cross-examination or answering to new evidence or issues introduced by the cross-examination. It is followed by examination of the witness by the court, if need be. Each of this aspect of his testimony must be clearly and separately set out under a heading depicting the stage of the testimony. This is the usual practice in most courts across jurisdictions. This is the practice in most, if not, all customary courts across the country. I think this practice should be maintained. It ensures clarity, orderliness, transparency certainty, accuracy and efficient case management.

The practice of cross-examining all the parties to a case and their witnesses together and recording the questions and answers as one continuous record must be stopped. The examination of any witness by court must be clearly and distinctly set out and so headed.