T. M. Orugbo V. Bulara Una & Ors (2002)

LAWGLOBAL HUB Lead Judgment Report

N. TOBI, J.S.C.

This case has passed through four courts: Koko District Customary Court, Warri Area Customary Court, Customary Court of Appeal, Asaba and the Court of Appeal, Benin Division. This is the fifth court.

The plaintiffs, who are now the appellants in this court, in their Amended Claim, sought against the defendants/respondents jointly and severally for (1) a declaration of title of ownership of Olumagada, Uton-Ugboro, Ukpamaje and Abarumeji Villages in Ureju Town, (2) N100.00 general damages for trespass on the Ukpamaje land, and (3) perpetual injunction restraining the defendants, their servants and or agents from further acts of trespass upon the plaintiff’s land.The Koko District Customary Court gave judgment for the appellants. The Warri Area Customary Court, in a majority decision, dismissed the appeal from the Koko District Customary Court. In other words, that court affirmed the decision of the Koko District Customary Court. The Customary Court of Appeal, Asaba allowed the appeal of the appellants/defendants in that court, thereby reversing the decisions of both the Koko district Customary Court and the Warri Area Customary Court. That court ordered a trial de novo by the Warri Area Customary Court.

The Court of appeal dismissed the appeal from the Customary Court of Appeal, Asaba. Akpabio, JCA., coram Nsofor and Ige, JJCA., held that the respondents were denied fair hearing at the Koko District Customary Court. Akpabio, JCA., said at page 203 of the Record:

From all that have been said above, there can be no doubt that the defendants/respondents did not receive a fair trial at the Koko District Customary Court. Not only was the trial Court not constituted in such a way as to ensure its impartiality as required under Section 33(1) of our Constitution of 1979, there were several breaches of the rules of natural justice of audi alteram partem, nemo judex, etc. In view of the foregoing, I am of the firm view that the Customary Court of Appeal was right in setting aside the judgment of the trial court on ground of unfair hearing, and ordering a trial de novo before the Warri Area Customary Court.

Dissatisfied with the judgment of the court below, the appellants appealed to this court. As usual, briefs were filed and duly exchanged. The Appellants formulated five issues for determination:

(i) Whether the respondents were given a fair hearing at the trial.

(ii) Whether the composition of the Court constituted a bias against the respondents as held by the Court of Appeal.

(iii) Whether there was a failure of invitation to the respondents to take part at the inspection exercise at the locus in quo.

(iv) Whether the respondents were denied the opportunity to cross-examine the 1st plaintiff/Appellant and his 4 witnesses and to testify for themselves.

(v) Whether the use of historical books by the trial court constituted a breach of fair hearing.

The respondents adopted the above five issues formulated by the appellants, although they contended in another breath that the main issue for consideration in this appeal is whether the respondents were given a fair hearing at the trial.

Learned Senior Advocate for the appellants, Chief Debo Akande, in arguing Issue Nos. 1, 3 and 4 together, submitted that since the trial Court was a Customary Court, rules of evidence are not strictly adhered to and that Court proceedings are conducted in an informal way as legal practitioners do not appear there.

Learned Senior Advocate referred to page 16 of the Record where the Amended Claim was duly considered by the trial Court in the presence of the respondents and interpreted into Ijaw by one Jonah Bunuzor, appointed by the respondents. Counsel pointed out that the respondents did not raise any objection to the motion, which was admitted as Exhibit A.