LIMOTA MOLADUN (PLAINTIFF/APPELLANT)
BADERINWA AJIKE (DEFENDANT/RESPONDENT)
Division: High Court of Justice (West)
Date of Judgment: 2nd March, 1961
Case Number: CIVIL APPEAL: Ibadan Appeal No. I/58a/60
Before: Doherty, J.
The plaintiff/appellant sued the defendant/respondent in a Customary Court claiming possession of certain premises. On appeal to the Ibadan No. 1 Grade 'A' Customary Court the trial was declared a nullity because two assessors who were absent when the Customary Court of first instance visited the locus in quo, took part in the proceedings on the day when Judgment was delivered. From that Judgment a further appeal was made to the High Court which
That it is not necessary for all the court members of a native tribunal which is trying a case to attend the inspection of the locus.
Cases referred to:-
Sanusi Lala and another v. Yesufu Morakinyo (1958) W.R.N.L.R. 199.
D.K. Edusei v. Akosua Denkye, 12 W.A.C.A. 121.
Chief Aaron Nwizuk and others v. Chief Warribo Eneyok and others 14 W.A.C.A. 354.
Cole for Appellant.
Ogunkeye for Respondent.
Doherty, J.:-This is an appeal from the decision of the President of the Ibadan No. 1 Grade 'A' Customary Court, in its appellate jurisdiction, which on the 9th of December, 1960, set aside the Judgment of the Ibadan No. 1 Grade 'B' Customary Court.
The plaintiff's claim on the Writ of Summons is for a recovery of three rooms from the defendant which were converted to shops and situate at Olushokun Compound, Mapo, in Ibadan.
The court below declared the proceedings before the court of trial a nullity because two assessors who were absent when the court went on inspection of the land in dispute took part in the proceedings on the day when
Judgment was delivered.
Only one ground of appeal was filed and argued. It is at17 of the record of appeal and states as follows:-
The learned President of Grade 'A' Customary Court erred in law and misdirected himself when he held that failure of two of the assessors to attend the inspection renders the whole proceedings a nullity when in fact a report of what took place at the inspection was given at a later sitting of the whole court.
From a perusal of the proceedings of the trial court it appears (page 6 of record) that the panel of members of the court which sat on the 9th of June, 1960, consisted of Chief Ogunsola as President, Chiefs section Adedoja, and sectionA. Asunmoba and Mr J.F. Oloko, as assessors. Both parties were present but no evidence was taken. The case was adjourned to 1st July, 1960. On this latter date the panel consisted of Chief Ogunsola as President, Chiefs Durodola and A. Kadelu and Mr J.F. Oloko, as assessors. The trial began, evidence of plaintiff and those of her two witnesses were taken and the case for the plaintiff closed before adjournment. At subsequent hearings, i.e., on 13th July, 1960, (page 9) and 18th July, 1960 (page 11) the panel of members of court was the same as on 1st July, 1960. When the court sat on 18th July, 1960, however, the following note was recorded (at11 beginning from line 27):-
Court consisting of the President and Mr J.F. Oloko visited the area in dispute at 9:00 a.m. on 15-7-60. Two persons who described themselves as members of Olushokun's family gave evidence.
A report of what transpired at the inspection was recorded and the case was adjourned for Judgment on 22nd July, 1960. On that day Judgment was given by the same panel of members who had heard the evidence on the 1st, 13th and 18th July, 1960, respectively. The only reason why the court below declared the proceedings a nullity was because Chiefs Durodola and Kadelu, members of this panel were not present at the inspection of the locus in quo on the 15th of July, 1960. Mr Cole, learned Counsel for the appellant, submitted that this view of the court below was wrong and contended that on the authority of the case of Edusei v. Denkye reported at 12 W.A.C.A. 121 It is not necessary for all the court members of a native tribunal which is trying a case to attend the inspection of the locus. In my opinion, there is substance in Mr Cole's contention. The facts of Edusei v. Denkye appear to be on all fours with the facts of this appeal, and the following passage from the Judgment of the learned President of the court Of Appeal seems to be particularly in point (page 122 of the report):-
It is common knowledge, and it has been brought to the notice of this Court on many occasions that in land cases it is unusual for the whole of the Native Tribunal to adjourn to the locus in quo. In the first place it might be very tedious or even physically impossible for some of the elder members to undertake the physical exertion and a custom has grown up whereby certain members of the Tribunal are detailed to visit the land and to report back to the Tribunal. In other cases entirely independent witnesses are sent by the Tribunal to visit the land and report.
Mr Ogunkeye, learned Counsel for the respondent, maintained that there was a sitting of the court on 15th July, 1960 (i.e., the day of the inspection) and contended that it was irregular not to have made a formal record of such a sitting instead of making a note of it on 18th July, 1960. I cannot find any evidence which supports the view that there was a formal sitting of the court on 15th July. Mr Ogunkeye contended further that the two assessors who were absent from the inspection would not be in a position to assess the evidence of the two witnesses who gave evidence thereat. The answer to the contention is the case of Edusei v. Denkye cited above. The important point is that the two assessors were members of the panel which heard the report of the inspection on 18th July, 1960, and accepted it. With regard to the objection of the respondent that the witnesses who spoke at the inspection were not put on oath and that their statements were not recorded, the Judgment of Jibowu, C.J., in the case of Sanusi Lala and another v. Yesufu Morakinyo (1958) W.R.N.L.R. 199 is, in my opinion, a complete answer. The case of Nwizuk v. Eneyok 14 W.A.C.A. 354 is also to some extent in point. Dealing with this point in the case of Sanusi Lala v. Morakinyo, the late Chief Justice of this region expressed the following opinion:-
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 any body else. As a matter in fact the Record of Proceeding shows that the respondent cross-examined the third plaintiff's witness on the result of the examination of the occupiers of the houses in the compound.
As pointed out by Mr Akinjide, Counsel for the respondent, the Lands Court had followed the usual procedure of Native Courts in finding out the facts of a case on the spot and in making a note of the facts so discovered later on. In the same way, Native Courts sometimes appoint delegates to view lands in dispute and report their findings later. It is clear that the practice and procedure of Native Courts do not agree with those of the 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. The Lands Court had by going to the compound to make investigations acted with common sense and in a very practical manner and the information collected in the presence of both parties in the compound was a pointer to where the truth lay.
I respectfully agree with that dictum. I find therefore that it was not necessary, on the authority of Edusei v. Denkye for the two assessors to visit the locus in quo and that their absence from the inspection cannot therefore render the proceedings of the court of 22nd July, 1960, when Judgment was delivered, a nullity. The court below was therefore in error in its decision on the point.
The appeal is accordingly allowed, the Judgment of the court below, including the order as to costs, is hereby set aside. The case is remitted to the court below for the consideration of the other ground or grounds of appeal.
Appellant is entitled to costs of this appeal.