Okon Vs Okpo (1962)
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This appeal is from the judgment given by Kaine, J., on 6th May, 1960, in the Calabar consolidated Suits No. 51 and 52 of 1951, in favour of the plaintiffs.
The plaintiffs in both suits are the representatives of Mbiatuk Itam, Ito District. In Suit No. 51, the defendants represent the clans of Ikot Abasi, Ikot Akpan, and Akpan Inyang of Akpanyak Uruan, Uyo Division; in Suit No. 52, the defendants represent Nang Oku Odiong Uruan.In both suits, the plaintiffs allege that they own an area of land (to which they give a certain name) shown on plan exhibit A bordered pink. There is a separate defence in each suit, but it is a common defence really: it comes to this: the area is made up of two pieces – Ekandang, which Abasi and Odiong own in common, and Edeng, which belongs to Odiong only; the other two clans say that they entered land belonging to Abasi and Odiong on their authority.
The judgment entered a non-suit in regard to the action against Akan and Akpayak on the ground that they have no interest in the land in dispute. As regards the clans Abasi and Odiong, judgment is given against Abasi in Suit No. 51 and in Suit No. 52 against Odiong for the entire area. All the defendants have appealed on various grounds, of which two only will be mentioned, namely No. (iii) and No. (v) of the additional grounds.
No. (v) complains that it was a mistake to enter a non-suit in Suit 51 in regard to Akan and Akpayak when the plaintiffs had not established a cause of action against them, and that the claim should have been dismissed. I am inclined to take the view that as the defendants admitted entering the land, and as the judgment awarded it to the plaintiffs, judgment might as well have been given against Akpan and Akpayak. Non-suits should be avoided as far as possible. However, that is by the way in view of the decision which will be proposed because of ground (iii), which I think is enough for the success of the appeal.
Ground (iii) complains in these terms-
The learned trial Judge erred in law in making use of the evidence given in Suit No. 30/27 (Exhibit D) for the purpose of discrediting the evidence of the appellants in the present proceedings.
Suit No. 30/27 was a suit in the former Supreme Court between Abasi and Odiong, and the Abasis won. Someone of Odiong gave traditional evidence there about the Ekangdang piece, and there was also a witness from Utit; the judgment under appeal observes that the former Odiong story contradicts the story now given by the defendants, and that the Utit evidence militates against the case put up now. The core of the judgment under appeal begins at p. 69, 1.12, and ends at p. 72, 1.13. Much of it relates to Exhibit D, and the submission of the defendants is that Exhibit D affected the mind of the trial Judge in arriving at the view that the defendants were lying. This is not contested on the plaintiffs’ behalf; the argument for them is that the Judge gave other reasons besides for arriving at his judgment, viz. juju shrines, etc.The question does, however, remain whether,since the mind of the trial Judge was affected by the evidence in Exhibit D, his use of it was or was not improper.
Chief Williams for the defendants (now appellants) has quoted from Alade V Aborishade, 5 F.S.C. 167 at 171, (1960) SCNLR 398, a passage to the effect that evidence in another case cannot be used as if it were evidence in the case on trial, and that it is only where a witness in the former case is giving evidence at the trial of the case in hand that his former testimony can be used for the purpose of cross-examining him in order, and only in order, to show that he should not be believed. Mr. Eboh for the other side does not contest that proposition, but argues, as already stated, that the trial Judge gave other reasons besides. He has not argued that Alade v. Aborishade is not quite in point, or referred to any other authority.
It is always a disadvantage to find oneself obliged to refer to a case which was not cited and discussed at the hearing, for one has not the benefit of submissions by learned counsel on the effect of the case. However, when closely perused, Alade V Aborishade proves, though perhaps a useful case in starting a train of thought, to be not quite in point. There, a witness who had given evidence in a former case, was testifying again; she was cross-examined on her former evidence; unfortunately, her former evidence was accepted as true as if it were evidence in the case on trial.
A case which is more to the point here is The Stool of Abinabina v. Chief Kojo Enyimadu (on behalf of the Stool of Nkasawura) in the Privy Council, reported in 12 W.A.C.A. 171. The trial Judge, relying partly on an action in 1902 between the appellant’s Stool and another tribe, concluded that the appellant’s side had been lying before him in their evidence on tradition. The Privy Council judgment (at page 174 of the report) said as follows:
Their Lordships are also of opinion that Mr. Foot was right in his criticism of the use made by the trial Judge of the evidence given by the plaintiff’s predecessor in title in the 1902 action without giving the plaintiff an opportunity of explaining the supposed discrepancy between his evidence and that of his predecessor.The use for a similar purpose of the plaintiff’s own evidence in the abortive trial in May is perhaps more excusable since plaintiff’s counsel may have had a note of that evidence and could thus have dealt with the discrepancy. Even so, their Lordships think it would have been better had this discrepancy also been put to the witness before it was used against him.
Their Lordships are, however, of opinion that the use of the evidence in the 1902 proceedings in the way indicated above is sufficient in itself to vitiate the finding of the trial Judge that the plaintiffs were lying in the evidence they gave before him as to tradition. Their Lordships would add that , even if the discrepancy remained unexplained, it would hardly justify a finding of deliberate untruth
.Thus, if the defendants were not given an opportunity of explaining any supposed discrepancy between their present evidence and the evidence of their predecessors in Exhibit D, the use of the former evidence made by the trial Judge was sufficient to vitiate his finding that the defendants were lying be-fore him in their evidence on tradition.
All that there is in the way of questions to defence witnesses, is towards the end of the cross-examination of Effiong Okon of Odiong, who said-
I know that the people of Ikot Abasi sued my people of Nung Oku Odiong in 1927 in the Supreme Court claiming Edang land. I do not know why the action of 1927 was taken. I know one Akpan Umo Akpatuk of my village. He is now dead. He was a witness for my village in 1927 case. What I tell the court is true. I do not know Ebong Udo Ekweri. That does not bring out any supposed discrepancies between the evidence given in this case by Effiong Okon and that given by Akpan Umo Akpatuk in the 1927 case, or afford any opportunity to Effiong Okon of explaining any supposed discrepancies. Thus, the present case suffers from the flaw stated by the Privy Council. The judgment must be set aside and fresh trial ordered. The parties will, it is hoped, study the Privy Council decision; also that they will do their best to reduce the bulk of former proceedings put in.
One way of reducing it is by keeping out what is not needed: for example, if a former witness’s evidence is used for cross-examination, it would seem to be enough to put in a copy of that evidence only. Another way is to agree on a statement: for example, learned Counsel for the appellants does not rely on Exhibit G as estoppel, but as showing an act of ownership; so, he might put in a statement giving the names of the parties, the claim, and the judgment., and the other side might agree for it to go in for what it is worth for the purpose for which it is put in. Then again, a party may consider whether an exhibit is worth putting in at all. In the past, parties have been rather lavish with putting in exhibits. There is a grave danger that an exhibit is put in for an illegitimate purpose; or that although put in for a legitimate purpose, it is used for an illegitimate one; and an effort should be made to avoid these risks.
I also have to observe that, in spite of Rule 8(2) in Order VII of the Federal Supreme Court Rules, 1961, which enjoins the Registrar of the High Court and the parties to reduce the bulk of the record as much as possible, no effort is made to do so, but everything is copied. In the present case, for example, half the pages before page 41 are not wanted. One needs the writ of summons, the pleadings, any orders made to amend, the approval to sue or defend in a representative capacity, but no more of the interlocutory matter; unless a party specially asks for it, it should be left out. Then again, the notes of settling the record and the security bond for costs are superfluous; unless a party specially asks for either, they can be left out. I have made these observations because the copying of superfluous material adds to the time and expense of copying the record, and delays the hearing, not only of one appeal, but of other appeals besides.
The following order is proposed:-
The judgment in Suits No. 51 of 1951 and No. 52 of 1951 of the Calabar Judicial Division, of the High Court of the Eastern Region, given on 16th May, 1960, is set aside and a new trial ordered before another Judge; the costs in the High Court shall be costs in the cause; the defendants/appellants are allowed seventy guineas costs of appeal.
Other Citation: (1962) LCN/1013(SC)