Kplishi Kuusu v Vanger Udom ()  NGSC 80 (23 February 1990);
KPLISHI KUUSU (APPELLANT)
VANGER UDOM (RESPONDENT)
(1990) All N.L.R. 191
Division: Supreme Court of Nigeria
Date of Judgment: 23rd February, 1990
Before: Nnamani, Uwais, Karibi-Whyte Belgore, Nnaemeka-Agu, JJ.S.C.
The respondent who was the plaintiff in the grade 11 Area Court claimed against the appellant as defendant, title to a piece of land at Ubwage, Benue State. After due hearing the court entered judgement for the plaintiff/respondent. The defendant appealed to the High Court which set aside the judgement of the Area court on the ground that it (the Area Court) had admitted, relied on and acted on evidence taken at the locus in quo which was not given on oath in violation of section 179 of the evidence Act.
The plaintiff/respondent appealed to the Court of Appeal where the judgement of the High Court was reversed in a holding that the trial court was not bound by section 179 of the evidence Act. That court also held that the procedure adopted by the trial court at the locus in quo in taking the evidence of the eldera and the kindred head without oath or affirmation was not prejudicial to a fair hearing and was not likely to lead to a miscarriage of justice. The defendant appealed to the Supreme Court.
(1) As a general rule the Supreme Court will not entertain any matter which has not been taken before the court of Appeal and the opinion of the learned justices of that court ascertained. In exceptional cases however the supreme court will grant leave to an appellant to take such a matter if it deals with a substantial issue of law or procedure and to avoid a miscarriage of justice.
(2) The issue of res judicata contained in ground 4 of the appellants ground of appeal was not raised before the Court of Appeal either by way of a cross appeal or by respondents notice therefore it cannot be entertained by the supreme court.
(3) If the appellant had applied for leave to bring the matter before the court it would have been rejected because granting same would lead to a miscarriage of justice.
(4) By virtue of section 1 (4) (c) of the Evidence Act no provision of that Act shall be applicable to the proceedings of an Area Court.
(5) Since no evidence was adduced by the appellant to show a native law and custom that required persons giving evidence to do so on oath or affirmation, the proceedings of the Area Court could not be said to have violated Order 13, rule 4 at the Area Courts (Civil Procedure) Rules of Benue state.
(6) In considering whether the proceedings in Area courts in order to ascertain whether the principles of natural justice have been complied with the substance and not the form must be examined.
(7) Though 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, both sides had a fair opportunity to put forward its own story. Further the truth of that testimony had not been seriously challenged.
(8) The decision of the Area Court did not occasion a miscarriage of Justice.
Cases referred to:
Abuaji v. Oyebu 1 W.A.C.A. 66.
Adedeji v. Police Service Commission (1967) 1 All N.L.R. 67.
Akaighe Idama (1964) 1 All N.L.R. 322.
Badau v. Ampung 12 W.A.C.A. 439.
Bronik Motors Ltd v. Wema Bank Ltd (1983) 1 S.C.N.L.R. 290.
Coker v. Sanyaolu (1976) 9-10 S.C. 203.
Council of the University of Ibadan v. Adamolekun (1967) 1 All N.L.R. 213.
Edusei v. Denkya 12 W.A.C.A. 121.
Exparte Chiagbana (1957) 2 F.S.C. 46.
Jammal Steel Structures Ltd v. A.C.B. Ltd (1973) 12 S.C. 73.
Latunde v. Lajinfin (1989) 3 N.W.L.R. Pt. 108 177.
Nabhan v. Nabhan (1967) 1 All N.L.R. 47.
Nwaneri v. Oriuwa (1959) 4 F.S.C. 32.
Nwizuk v. Eneyok 14 W.A.C.A. 354.
Odufuye v. Falore (1977) 4 SC 11.
Ogunaike v. Ojayemi (1987) 1 N.W.LR (Pt. 53) 760.
Okuma v. Tsutsu 10 W.A.C.A. 89.
Olalekun v. C.O.P. (1962) 1 All N.L.R. 487.
R. v. Dagbe 12 W.A.C.A. 184.
Sanusi v. Morakinyo (1958) W.N.L.R. 199.
Seismagraph Services Ltd v. Agbeni (1976) 6 S.C. 85.
Yesufu v. Ojo (1958) 3 F.S.C. 100.
Statutes referred to:
Area Court Law, 1968.
Constitution of the Federal Republic of Nigeria, 1979.
The Evidence Act, 1945.
Area Courts (Civil Procedure) Rules of Benue State, 1972.
J.A. Yaji for the Appellant.
I.A. Nomshan for the Respondent.
Nnamani, J.S.C.:-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, J.J.C.A.) on 3rd February, 1986 allowed the appeal, set aside the judgment of the High Court and entered judgment in favour 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. Nomshan, 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 despatch. 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 privee (sic) in exhibit 'A' Buruku" Court proceedings in case No. CV/256/76 date 14/1/71 has no locus stand 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 show 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 cross-appealed 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.
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 court 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 Court 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 . . ."
Then 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 fail (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 all 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:-
"Save as otherwise provided in sections 181 and 182 all 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 vs. Ojayemi (1987) 1 N.W.L.R. (Part 53), 760; and Amodu Latunde and or vs. Bello A.D. 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. 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, J.C.A. (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 at 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. Adedeji vs 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.
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.
Karibi-Whyte, J.S.C.:-This appeal against the judgment of the Court of Appeal Division, Jos, seeks to set aside the judgment and restore the judgment of the High Court of Benue State sitting in Gboko in its appellate jurisdiction set aside by the Court of Appeal, Jos.
This appeal originated from the Grade II Area Court Ameradu, Benue State in an action dated 6/10/81. Respondent, who was Plaintiff in the Grade II Area Court claimed against the Appellant, the defendant, title to a piece of farm land at Ubwage. After due hearing the Area Court on 23/10/81 entered judgment for the Plaintiff/Respondent. The Defendant appealed to the High Court, and on 18/3/83 the judgment of the Area Court was set aside. The ground on which the appellate High Court set aside the judgment of the Area Court was that the trial Court had admitted, relied on and acted on evidence taken at the locus in quo which was not on oath. This it held was a violation of the provisions of section 179 of the Evidence Law which was binding on the Court. Plaintiff/Respondent, appealed to the Court of Appeal where the judgment of the appellate High Court was reversed. In reversing the High Court the Court of Appeal (coram Agbaje, J.C.A. (as he then was) Jacks and Macaulay, JJ.C.A. held that the trial Court was not bound by the provisions of section 179 of the Evidence Law, and that the procedure adopted by the trial Area Court at the locus in quo in taking the evidence of the elders and the kindred head without oath or affirmation was not in the instant case prejudicial to a fair hearing and was not likely to lead to a miscarriage of justice. The Defendant has now appealed to this Court.
My learned brother, Augustine Nnamani, J.S.C. has set out in sufficient detail the background facts and preliminaries of this appeal to which I agree entirely. I also agree with his analysis and conclusion dismissing the appeal. I also will and hereby dismiss this appeal. I only wish to make my own contribution to the aspect which appellant has strained to establish, and which is the crux of this appeal, i.e. whether the trial court, being an Area Court, (formerly Native Court) is bound by the provisions of the Evidence Law. In the instant case the relevant provision is section 179 of the Evidence Law. Appellant has filed and relied on four grounds of appeal. Three of the grounds of appeal which I reproduced hereunder are concerned with whether the trial Grade 2 Area Court had in the instant case complied with the provisions of section 179 of the Evidence Law.
Grounds of Appeal
"(i) The learned Justices of the Appeal Court erred in law when they held that, Area Courts were not bound and were not even to be guided by section 179 of the evidence Act, therefore the evidence obtained by the trial Area Court from witnesses at the locus in quo, which was not on oath and over which the parties were not given any opportunity to cross-examine upon was admissible evidence.
Order 13, rules 4 of the Area Courts Civil Procedure Rules 1972 makes it mandatory for the Area Courts to take evidence throughout the trial in accordance with the Native law and custom applicable to the cause or matter. Under the Tiv Native law and custom binding on the parties, it is mandatory to take oath before testifying at any judicial proceedings and also mandatory to have the testimony subjected to cross-examination. The trial Area court failed to comply with these requirements in respect of the testimony on which it heavily relied to reach a decision, and this occasioned a grave miscarriage of justice, and it was wrong for the Appeal Court to have affirmed the decision of the trial court based on the inadmissible evidence.
(ii) Even if the Area Courts are not bound by the evidence Act, the Area Courts are nevertheless to be guided by the provision of the evidence Act.
(ii) The learned Justices of the Appeal Court erred in law in holding that the practice whereby the trial Area Court, at a certain stage adopts a particular procedure, and later deviates from the same procedure to adopt a completely different procedure in the same case was usual with Native courts.
It is mandatory for the trial Area Court to adopt a uniform procedure in accordance with the Area Courts civil procedure Rules 1972, throughout the trial. The visit to the locus in quo is part of the trial. It was therefore wrong for the trial court to have adopted a different procedure to take evidence at the locus in quo, from the procedure which the trial court had adopted while taking evidence in court, in the same proceedings.
(ii) It is wrong for the Appeal court to have relied on the practice of old Native Courts that had no similar procedure Rules to excuse the deliberate violation of the express provisions of the Area courts civil procedure Rules 1972.
(iii) The Appeal court further erred in law in applying the principles in Sanusi Lala v. Yusufu Morakinyo (1958) W.R.N.L.R. 199 to the present case under Appeal.
The practice of the old Native courts in Morakinyo's case (supra) was not condemned because the court had no civil procedure Rules binding on it, and further because the parties were given the opportunity to cross-examine on the evidence adduced at the locus, WHEREAS in the present case, the parties never had any opportunity to cross-examine on the Unsworn evidence and this lead to denying the parties the opportunity to be heard on the issue raised in the Unsworn testimony. On which the trial court based its decision."
There is no doubt that these grounds of appeal are hinged on the compliance vel non with the provisions of section 179 of the Evidence Law and the validity of the trial in the event of any such non-compliance.
Counsel on both sides had filed briefs of argument. This appeal was decided on the briefs filed without oral argument. Appellant has formulated three issues for determination. I wish to confine myself to issues 1, 2 and 3, which are as follows-
"(1) Whether Area Courts are not bound or guided by section 179 of the Evidence Act and if they are not so bound or guided whether the non opportunity to the appellant/defendant to cross-examine the evidence not on oath and obtained from the elders at the locus in quo is admissible evidence on which the trial court should base its decision in favour of respondent/plaintiff.
(2) Whether and assuming that Area Courts are not bound nor guided by section 179 of the Evidence Act could the Area Court at one stage of the trial proceedings suo motu adopts English Law and at another stage of the proceedings adopts to taking unsworn evidence which the court heavily relied upon in its judgment and contrary to the mandatory provisions of Area Court (Civil Procedure) Rules 1972.
(3) 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 and there was no mandatory Native Courts (Civil Procedure) Rules with similar provisions as the one operating in Benue State."
It is necessary to set out the ipsissima verba of section 179 of the Evidence Law and also the enabling provisions of the laws governing the Grade II Area Court, Ameradu which are relevant for a proper appreciation and determination of the scope of the application of section 179 of the Evidence Law.
Section 179 of the Evidence Law so far as is relevant provides as follows-
"(179)Save as otherwise provided in sections 181 and 182 all oral evidence given in any proceedings must be given upon oath or affirmation administered in accordance with the provisions of the Oaths and Affirmations Act."
This section applies subject to the provisions of section 1(4)(c) of the law which states-
"to judicial proceedings in any civil cause or matters in or before a native court unless the Governor in Council shall by order confer upon any or all native courts in the State jurisdiction to enforce any or all of the provisions of this Act."
The italicized words clearly state that the Evidence Law "shall not apply . . . to judicial proceedings in any Civil cause or matters in or before a native court . . ." unless there is provision made by the Governor-in-Council by Order conferring jurisdiction on native courts to enforce any or all of the provisions of the law. Thus native Courts are not expected or bound to apply the provisions of the Evidence Law unless there is express enabling provision.
Area Courts are creatures of statutes. Accordingly, their jurisdiction, the law and procedure applicable are also determined by the statutes creating them. It is therefore always of crucial importance to resort to the statute creating the courts to discover the substantive law and procedure applicable therein-Jammal Steel Structures Ltd. v. A.C.B. Ltd. (1973) 11 S.C. 77 Bronik Motors v. Wema Bank (1983) 1 S.C.N.L.R. 296. Historically Area Courts are the successors of the old Native Courts established under the Native Courts Law No. 6 of 1956-See section 66 Area Courts Edict No. 4 of 1968. The Area Courts Edict 1968 came into force on the 1st April, 1968.
Section 3(2) which prescribes the jurisdiction of the Courts provides that
"Every Area Court shall exercise the jurisdiction conferred upon it by or under this Edict within such area and to such extent as may be specified in its warrant."
The Chief Judge is empowered to specify the area within which or the extent to which the powers of the Area Court may be exercised, and cause such jurisdiction to be notified in the Benue Gazette-See section 3(5)(6).
Section 20(1)(2)(3) of the Area Courts Edict 1968 which prescribes the Law to be administered in the Area Courts in Civil Causes and matters provides-
"20 (1) Subject to the provisions of this Edict, and in particular of section 21, an area court shall in civil causes and matters administer-
(a) the native law and custom prevailing in the area of the jurisdiction of the court or binding between the parties;
(b) the provisions of any written law which the court may be authorised to enforce by any order made under section 24;
(c) the provisions of all rules and orders made under the Native Authority Law or under any legislation repealed or superseded by that Law, and the provisions of all rules, orders, and by-laws made by a native authority under any other written law and in force in the area of the jurisdiction of the court.
(2) Nothing contained in this section shall be deemed to authorise the application by an Area Court of any native law or custom or part thereof in so far as it is repugnant to natural justice, equity or good conscience or incompatible either directly or by necessary implication with any written law for the time being in force.
(3) Nothing contained in this section shall be deemed to preclude the application by an area court of any principle of English law which the parties to any civil case agreed or intended or may be presumed to have agreed or intended should regulate their obligations in connection with the transaction which are in controversy before the court."
It is obvious from a reading together of section 20(1)(a)(2), that the Edict has made the application of native law and custom prevailing in the area of the jurisdiction of the court or binding between the parties, the primary law to be applied. On the other hand the Area Court is to apply the provisions of any written law which the court is empowered to enforce, or other written law in force within the area of the jurisdiction of the court. The court is however precluded from enforcing any native law or custom which is repugnant to natural justice, equity and good conscience, or incompatible with any written law in force-section 20(2). Similarly, where the parties agree or are presumed to have agreed, the Area Court may apply principles of English law governing their transaction.
The substantive law applicable in Area Courts is therefore Native Law and Custom. This has been provided in the regulation of the practice and procedure of the Courts in Civil matters.
Section 26 of the Area Courts Edict provides
"(1) subject to the provisions of this Edict and of any other written law and to any rules which may be made under section 65, the provisions of section 20, and 21 shall apply in the regulation of the practice and procedure of area courts in civil causes and matters."
The Chief Judge of the State is empowered under section 65 of the Edict to make rules governing practice and procedure in the Area Courts. In exercise of this enabling power, the Chief Judge made the Area Courts (Civil Procedure) Rules, 1972 which came into force on the 1st April, 1971. These rules are applicable in all Area Courts in the State.
Order 1, rule 1(3) of this Rule contains an important and effective rule which states that
"The principles of any native law and custom shall be abrogated or varied to the extent only (if at all) to which any order or rule may make specific provisions in a sense contrary to any particular part of such native law and custom and subject thereto such native law and custom shall remain in full force and effect."
Order XI sets out the procedure to be adopted in the hearing of evidence in civil cases and went on in rule 9 to state as follows-
"If anything contained in the preceding rules of this Order shall conflict with the native law and custom applicable to the case under consideration the said native law and custom shall prevail."
Thus both section 20, 26 of the Area Courts Edict, 1968 and Order XI r.9 of the Area Courts (Civil Procedure) Rules, 1972 have provided for native law and customs as the law, practice and procedure to be applied in Area Courts, unless expressly otherwise provided. This is further re-enforced by Order XIII, rule 4 relating to evidence in court.
"(4) All evidence given before a court and the method by which such evidence may be in accordance with the native law and custom applicable to the cause or matter under consideration."
Of particular relevance is section 61 of the Area Courts Edict 1968 which provides that
"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 revision 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."
I have endeavoured to set out in this judgment the main statutory provisions I intend to rely upon in the determination of this appeal. It is important to appreciate the fundamental factor that Area Courts created under the Area Courts Edict, 1968 which are the successors of the former Native Courts, which in turn were the courts which replaced the pristine traditional methods of the administration of justice are designed to maintain and adhere to our indigenous methods of administering justice in so far as such is not repugnant to natural justice and is not oppressive or prejudicial to either of the parties to the civil cause or matter before the court. Counsel for the Appellant has submitted in his brief of argument quite correctly that Area Courts are bound by the provisions of section 20(1)(a) of the Area Courts Edict and Order XIII r.4 and 5 of the Area Courts (Civil Procedure) Rules 1972. It was submitted that these sections are mandatory.
Whilst conceding that section 179 of the Evidence Law is not applicable to Area Courts, learned Counsel submitted that the Courts are bound by section 20(1)(a) of the Edict and Order XIII, rules 4 and 5 of the Area Courts (Civil Procedure) Rules 1972 and accordingly bound to administer oaths even at customary law (in this case Swem, which was administered in the proceedings) to witnesses at the locus in quo. Their failure so to do offended against the above provisions and occasioned a miscarriage of justice.
It is both elementary and a fundamental principle of the interpretation of statutes that were the words of a provision are clear and unambiguous, effect should be given to them. Besides, where the provision of an enactment are intended for the replacement of an earlier enactment which are deemed still to be in force, it is always useful to construe the provisions by reference to the repealed enactment. However, in order to get the full meaning and effect of a provision, it is useful to consider all the related sections in the enactment, so as to discover the mischief aimed at by the new provision and the intention of the legislature as enshrined in the words used.
Our new judicial system having accommodated our indigenous system of administration of justice has recognised its informality, malleability to the particular areas in which the court exercises jurisdiction, has made provision within the limits of the statutory provision enabling them to administer justice as understood by the people and to do substantial justice between the parties before them. Thus what the enabling statutory provisions aim at achieving is the doing of substantial justice in accordance with the native laws and customs of the parties before them, any technicality which will stultify the realisation of this objective will be rejected by the Courts (See section 61 Area Courts Edict 1968). Area Courts are therefore given a wide latitude to enable them do substantial justice.
The wisdom of this provision is anchored on the fact that the Evidence Law is based on the peculiar English Common Law concepts of judicial procedure which is invariably completely alien to the notions of justice of the Judges of Area Courts who generally not learned in English Common Law, but are presumed to be knowledgeable in the laws and customs of the area in which they administer justice. Hence the general inapplicability of the Evidence law unless expressly provided to be applicable-See Odufuye v. Faloke (1977) 4 SC.11.
In the recent case of Latunde v. Lajinfin (1989) 5 S.C.N.J. 59, 65-66 (1989) 3 NWLR (Pt.108) 177 this Court stated unequivocally that by section 1 sub-section 4(c) of the Evidence Act the provisions of the Act do not apply to proceedings in Customary courts unless there is specific provision to that effect. The words are quite clear and unambiguous-See Ogunmade v. Fadayiro (1972) 8-9 SC. 1; Nabhan v. Nabhan (1967) 1 All NLR 47. Counsel to the Appellant submitted that the Court of Appeal did not rule on whether the trial court was not bound by section 20(1) (a) of the Area Courts Edict, 1968 and Order XIII, rules 4 and 5 of the Area Courts (Civil Procedure) Rules 1972. It seems to be learned Counsel has ignored the fact that he ought to have read all the sections together-See University of Ibadan v. Adamelekun (1967) 1 All NLR 213; Akaighe v. Idama (1964) 1 All NLR 322, Yesufu v. Ojo (1958) 3 FSC. 106; (1958) SCNLR 430. On a careful reading of section 20(1)(a) and Order XIII, rule 4, and Order 1, rule 1(3) Order XI, rule 9, section 61 of the Area Courts Edict 1968 it is clear that the provisions of the native law and custom applicable to the civil cause or matter will prevail in any case where there is a conflict with the provision of any other law. In any event, by the provisions of section 61 of the Area Courts 1968, no proceedings in the Area Court shall be varied or declared void upon appeal by reason of any defect in procedure. In exercising appellate jurisdiction over Area Courts, the decision shall be according to substantial justice without undue regard to technicalities.
Although Chiagbana v. The Queen (1957) F.S.C. 98 which was an application for certiorari to quash the judgment of the District Officer, when there were no rules of procedure, the principle applicable as enunciated by De Lestang, F.J. will seem to me correct and applicable even now where there are rules. The learned Federal Judge said,
"In particular the court should not lose sight of the conditions under which administrative officers exercising judicial functions, have to discharge those functions in remote places. They are not usually trained lawyers and they do not have the assistance of counsel, who are indeed not permitted to appear before them. Their aim is to do justice. Where it is therefore obvious to everyone, that in their anxiety to do justice they have departed somewhat from the ordinary rules of practice and procedure, this Court will be very slow to interfere and will only do so when it is satisfied that some injustice might have resulted."
The situation in the instant case is not dissimilar. I have already pointed out that Area Court Judges are not learned in English Common Law to enable them appreciate and understand provisions of the Evidence Law. Also in accordance with section 28(1) of the area Courts Edict, Legal Practitioners are barred from appearing to act for or assist any party before an area court. It is therefore important to insulate them from the problems of misunderstanding, misapplication of the law and injustice that will inevitably arise if they, with all the above limitations, are to be bound to apply the Evidence Law.
The Court of Appeal was therefore right in holding that Area Courts, which the Area Court Grade II at Amaredu, in this case is, was not bound by the provisions of the Evidence Law and non-compliance therewith in taking evidence at the locus in quo did not affect its decision.
Counsel to the appellants in his brief of arguments has also submitted that even if the Area Court was not bound by the provisions of the Evidence Law, it was bound to observe native law and custom where in this case oath taking on Swem was necessary and binding. He submitted therefore that the failure to administer oath at the locus in quo offended the Area courts Edict and resulted in the miscarriage of justice.
This is a criticism of the procedure adopted by the Area Court at the locus in quo.
In the High Court, the evidence of the elders and kindred taken by the Area Court Grade II was rejected as not constituting evidence having not complied with the Evidence Law. The Court of Appeal came to the same conclusion as I have that the Area court was not bound to apply the Evidence Law.
The Court of Appeal therefore went further to hold that the High Court was wrong to have excluded the evidence at the locus in quo for non-compliance with provisions of the Evidence Law. The Court of Appeal held that the taking of the evidence of the elders and kindred at the locus in quo without oath or affirmation, was not prejudicial to a fair hearing and was not likely to lead to a miscarriage of justice. Adopting the reasoning in Lala v. Morakinyo the Court continued,
". . . the trial court by going to the land in dispute for investigation acted with common sense in a very practical manner and the information thereby gathered by it was a pointer to it as to where the truth of the case lay."
I agree entirely with this reasoning and the conclusion that the procedure adopted by the Area Court at the locus in quo was not inconsistent with the provisions of Order 13, rule 4 of the Area courts Civil Procedure Rules 1972.
I have already reproduced in this judgment the provisions of Order 13, rule 4. The rule enjoins the Area Court to apply the native law and custom applicable in respect of evidence given before the court. Counsel has submitted that the provisions of Order 13, rule 4 was not complied with because the elders and members of the kindred from whom evidence was taken at the locus in quo were not sworn on the Swem in accordance with native law and custom. It was also submitted that the evidence of those who testified at the locus in quo was not subjected to cross-examination. Accordingly, the non-compliance has occasioned a miscarriage of justice. Section 33(2) of the Constitution 1979 and R v. Dogbe (1947) 12 W.A.C.A. 184 were relied upon for these submissions.
It seems to me that counsel's submission was still predicated on the view that the Area Court was bound to observe and apply the provisions of the Evidence Law. Having held that this is not the law, the question whether the witnesses were cross-examined on their evidence at the locus in quo in accordance with the Evidence Law does not arise. Nevertheless, since evidence taken at locus in quo is being challenged it is useful to justify its validity on grounds of law. This I now proceed to do.
It is conceded that the Court did not cease to be a Court when they moved to the locus in quo to inspect the land in dispute. Thus the evidence taken at the place of inspection is as much evidence as if they had been made in a court room-See Nwizuk v. Eneyok 14 W.A.C.A. 354.
It is pertinent to examine the record of proceedings to see how the Area Court dealt with the matter.
The record shows that both Plaintiff and Defendant and elders and members of their kindred were present at the locus in quo. Both Plaintiff and Defendant showed members of the Area Court the land in dispute they were claiming and its extent. Members of the Court inspected the land in dispute, and satisfied themselves. The elders on both sides including their kindred present at the locus in quo were invited to testify. Plaintiff called only one elder at the locus in quo whilst the Defendant called five elders. In the judgment of the court the evidence of the Defendant and his witnesses including those of the elders and members of the kindred were disbelieved. The Court believed the evidence of the Plaintiff and his witnesses. This was in addition to what members of the court saw for themselves.
The court said that it was satisfied with the claim of the Plaintiff and the evidence of his witnesses that he inherited the land from his fathers. At the locus in quo they saw the old settlement of the late father near the disputed land, with mango trees still standing, and the present compound of the Plaintiff. They also saw the defendant's farm near the back yard of the Plaintiff.
For the Defendant the Court stated that they found the evidence of defendant that he had obtained judgment at Buruku Grade II Area Court related to the defendant's compound and not in respect of the land now in dispute. The Court concluded,
"We understood from what we have seen and heard from the elders present on the scene. We know that defendant evidence and his witnesses are outside the disputed piece of land which plaintiff have shown to us. For defendant told us his land bounded on the Ikuen Hill, but as we went where dispute is we did not even touch Ikuen Hill it was almost 2 miles away."
This is an account of what the court observed at the locus in quo and forms part of the judgment and must be taken to be a correct account of what happened. The Area Court in this case by visiting the locus in quo and seeing things for itself discovered where the truth lay. It has acted with common sense and in a practical manner by substituting in this case the eyes for the ear. See Seismograph Ltd. v. Ogbeni (1976) 4 SC. 85.
In the instant case the witnesses on both sides were given equal opportunity to testify in respect of the land in dispute. I do not think that the absence of cross-examination of the witnesses is a fatal defect. The proceedings were conducted formally and cannot be contended to infringe any principle of natural justice-See Badoo & Ors. v. Ampung & Ors. 12 W.A.C.A. 439-See also Maji v. Shafi (1965) N.M.L.R. 33.
The anxiety of the court to do justice between the parties motivated their visiting the locus in quo. I think the Area Court acted in good faith in all the circumstances of this case and cannot be justifiable accused of offending against the provisions of section 33(2) of the Constitution 1979.
I agree with the Court of Appeal that the fact that witnesses were not cross-examined per se will not constitute non-compliance with rules of natural justice. As long as the parties were heard and there was opportunity to cross-examine, the failure of a party to take advantage of the opportunity does not in any opinion constitute a non-compliance with the rule of natural justice-See Queen v. Chiagbana for the people of Amanuke (1957) F.S.C. 98.
Appellant will seem to be relying on a technicality, which relates to procedural requirements in the English type courts, which is not applicable to Area Courts, to set aside a decision of the Area Court which accords with substantial justice. This the laws does not allow. The result is that, I hereby dismiss the appeal and affirm the judgment of the Court of Appeal.
Appellant shall pay
N500 as costs to the Respondent.
Belgore, J.S.C.:-I read in advance the lead judgment of Nnamani, J.S.C. after having the opportunity of discussing it with him before the draft was read. He has exhaustively dealt with the issue of the jurisdiction on various causes and I have nothing more useful to add to his conclusion. I also dismiss the appeal and make the same order as to costs as made by him in the lead judgment.
Nnaemeka-Agu, J.S.C.:-This case has a chequered history. It started in Grade II Area Court of Ameradu, Benue state. There the plaintiff, Vanger Udom sued the defendant Kpiishi Kuusu, claiming "the rights of his farmland."
Although the farmland was not named and no plan was filed in the case it is clear from the proceedings that both sides were in no doubt as to the identity and quantity of the land in dispute. The Area Court also visited the locus in quo and stated that it was a farmland measuring 300 yards long by 100 yards wide and lying between Mbangor and Mbaider in Mbaigyu kindred of Ipav Clan in Gboko Local Government Area of Benue State.
The plaintiffs case before the Area Court was that he inherited the land in dispute from his father who settled on it a long time ago when the defendant's father was living at Mbaigyu some five miles away across the Ambiir river. When the defendants' father, Kuusu and his people were being decimated by smallpox they left Mbagyu for Mbaigyu. It was on their return to Mbaigyu that they begged the plaintiff's father of some land to settle upon. The latter granted to them a small piece of land to live in, with the right to farm only in the area behind their place of habitation. They respected the terms of the grant during the life-time of defendant's father; but when the latter died, the defendant started trespassing on other lands of the plaintiff and claiming them in court. Plaintiff called two witnesses in support of his case.
The defendant, on the other hand claimed that the land in dispute was his father's and now his own. His mother, her son Zaki, and Osugh Agenga were all buried in the land in dispute. It was after his father's death that the plaintiff and his people started to claim the land. So in 1970 he sued the plaintiff's brother, Zaki Anihungwu over the land in Bukuru Area Court and had judgment. The copy of the proceedings was tendered as Exh. A. The elders wanted to divide the land between him and the plaintiff but he (defendant) refused. He also called two witnesses in support of his case.
At the inspection of the land each party was present and assembled some elders and other witnesses to support its case. The court inspected the land and questioned the elders and recorded all they observed and heard. In the end they used their inspection notes for the resolution of the issue of credibility of witnesses; believed the plaintiff and his witnesses and disbelieved the defendant and his witness. They also made a number of important findings some of which have some bearing on the issues that arise for determination in this appeal.
They accepted the plaintiff's version of the story as to how the land was acquired by his father and their subsequent acts of ownership on the land. Importantly, they also found that the proceedings in Exh. A did not relate to the land in dispute or any land contiguous with it and that, in any event, the parties were not the same.
On appeal to the High court, Appellate Division, that court, per Onu and Anoliefo, JJ., allowed the appeal and set aside the decision of the Area court. It does appear that the main ground for the court's decision was that the area court was in error to have relied on what the elders told them at the locus in quo, as that offended the provisions of section 179 of the Evidence Act. They, however, held that the decision in Exh.A cannot operate as res judicata.
The plaintiff appealed further to the Court of Appeal. In the lead judgment of Agbaje, J.C.A. (as he then was) with which Jacks and Macaulay, JJ.C.A. concurred, he held that although there was non-compliance with the provisions of section 179 of the Evidence Act, those provisions do not apply in the Area Courts. That Court allowed the appeal mainly on this ground.
The main question raised by this appeal is whether the court was correct.
The learned Counsel for the appellant, while conceding it that there is nothing in the Area courts Edict or Rules obliging the court to observe the provisions of section 179 of the Evidence Act, submitted that the mandatory provision in section 20(1)(a) of the Area Courts Edict, 1968 and Order 13, rules 4 and 5 of the Area Courts (Civil Procedure) Rules, 1972, ought to have applied the customary law of the people by insisting that the witnesses must swear on Swem both in the court and during the visit to the locus in quo. Also the court should have insisted that the witnesses should be cross-examined over their assertions of facts at the locus. Failure to do so is a breach of fair hearing under section 33(1) of the 1979 constitution, he submitted. He cited the case of Prince Yahaya Adigun & 2 Ors. v. The Attorney-General of Oyo state & 18 Ors. (1987) 3 S.C.N.J. 118; (1987) 1 N.W.L.R. (Pt.53) 678 in support. This occasioned a miscarriage of justice, he submitted. It was not right, he contended, that the court should adopt two different procedures by insisting on cross-examination of witnesses in court and not doing so on the facts which were tendered during the inspection of the land, he contended.
The learned Counsel for the respondent pointed out that the Evidence Act and Law themselves exclude their application to proceedings before native tribunals. Also he relied in support upon a recent decision of this Court in Amodu Latunde & Anor. v. Bello A. D. Lajinfiu (1989) 5 S.C.N.J. 59, at pp.65-66; (1989) 3 N.W.L.R. (Pt.108) 177. He further submitted that the failure to administer on oath to the witnesses did not occasion a miscarriage of justice. On the failure to cross-examine at the scene during the inspection, he pointed out that the elders assembled by both sides were there only to confirm or destroy facts which the parties and their witnesses had mentioned in their respective testimonies in order to assist the court to decide which side to believe and not to give fresh evidence to help parties prove their cases.
My first observation is that the Evidence Act and Law themselves do not intend that they should apply to cases like the instant which was prosecuted in the Area court. For section 1(4) of the Evidence Act 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 of course settled that Area Courts and Customary Courts are the successors of the Native Courts. See Olalekan v. Commissioner of Police (1962) 1 All N.L.R. (Pt.3) 487 at P.490. Our courts have consistently held that no technical rules are applicable in native tribunals. They have always taken the view that it is the substance and not the form that ought to be regarded: See Okuma v. Tsutsu 10 W.A.C.A. 89. Ohene Abuaji II v. Oyebu 1 W.A.C.A. 66. It has not been suggested that there has been any Law or Order applying the provisions of the Evidence Act to Area Courts. Provisions similar to the above are contained in section 1(2)(c) of the Evidence Law of the former Northern states of Nigeria (Cap.40) applicable in Benue State. Certain exceptions made with respect to criminal proceedings are not relevant in this case, which is a civil matter. In the recent case of Amodu Latunde & Anor. v. Bello Adeniji Delesolu Lajinfin (1989) 3 N.W.L.R. (Pt.108) 177, at P.186 this Court, per Uwais, J.S.C. held that because of section 1(2)(c) of the Evidence Law (supra) the Evidence Law does not apply to proceedings in Customary Courts. I am of the view that the same holds good of proceedings in Area Courts. True section 20(1)(a) of the Area Courts Edict read together with Order 13, rules 4 and 5 of the Customary Court (Civil Procedure) Rules, 1972, oblige Area Courts to apply and administer customary laws of the people, the problem in this case is that none was proved in this case. It is settled that save in the case of general and notorious custom which can be judicially noticed, particular and local customs are matters of evidence. As in this case there was no proof that swearing on Swem was a local custom of the people, it follows that no factual base had been established to sustain the contention of the learned Counsel for the appellant.
On the submission that non-cross-examination of the witnesses who were questioned by the Area Court members at the locus offended against the rules of fair hearing, I must advise myself that fair hearing is not a technical doctrine. Rather it is a rule of substance. Whenever it is raised against a hearing, the decisive question is always whether, having regard to all the circumstances of the particular case, the hearing was conducted in such a manner that an impartial observer will conclude that the tribunal was fair to all the parties to the proceedings. In the case in hand both sides produced their witnesses and elders. They were questioned by the court in the presence of both parties not for purposes of enabling either party to prove its case but to ascertain the truth or otherwise of the evidence already given on oath. Both parties were present all through and none indicated that it wanted to cross-examine any of the witnesses. I believe it to be the correct position in law that no party can be compelled to cross-examine a witness called by his adversary. All that the tribunal is required to do is to provide each party with the opportunity to do so. It is left for the party to either cross-examine the witness or to, in any other lawful manner, rebut or controvert the evidence given by his adversary's witness. Above all, as the particular tribunal in this case was an Area Court, a native tribunal, I am satisfied that no rules of fair hearing were breached. It is noteworthy that none of the recorded observations of the trial court in their inspection notes on their observations at the locus in quo has been faulted before us. In Chief Aaron Nwizuk & Ors. v. Chief warribo Eneyok & Ors. (1953) 14 W.A.C.A. 354 where such inspection observations were not even recorded, the West African Court of appeal commented:-
"While the usual practice may be as stated it is not necessary in every case, nor is the absence of such a record necessarily a fatal defect. In the present case we consider that statements such as these by a Judge in the solemn judgment of the court must be taken to be a correct account of what occurred and therefore final. As to the second point, no specific issue has been raised as to interpretation; the presumption therefore is that the proceedings before the court were conducted formally, correctly and honestly."
I agree with the statement of principle. A fortiori in the instant case in which the observations have been meticulously recorded but have not been faulted, I cannot but agree with judgment which flows from it.
On the question of res judicata, I agree with my learned brother in his lead judgment that it does not arise in this appeal. But, even if it arises, I must note that the trial court and the Court of Appeal not only found that Exh. 'A' was not shown to have been conducted between the same parties and privies as in this case, but also that the lands which were the subject-matters of the two cases were not the same. On those points, the plea is bound to fail. For, the law is that for the plea to succeed the parties, subject matter and issues in the two cases must be shown to be the same: See Ihenacho Nwaneri & Ors. v. Oriuwas & Ors. (1959) 4 F.S.C. 132, (1959) S.C.N.L.R. 316; Coker & Anor. v. Sanyaolu (1976) 9-10 S.C. 203. The plea was doomed to failure in this case.
For the above reasons and the fuller reasons contained in the judgment of my learned brother, Nnamani, J.S.C., which I adopt as my own, the appeal fails and is hereby dismissed with