ONI ISIJOLA (PLAINTIFF/RESPONDENT)

v.

ADEWOLE ALADENIKA (DEFENDANT/APPELLANT)

(1963) All N.L.R. 602

 

Division: High Court (West)

Date of Judgment: 27th September, 1963

Case Number: (Suit No. AK/15A/63)

Before: Fatayi-Williams, J.

 

Appeal from Grade "B" Customary Court.

The plaintiff/respondent brought an action for £100 damages for trespass in the Akure Grade "B" Customary Court and obtained judgment. On appeal to the Ondo Divisional Grade "B" Customary Court, the case was sent back to the Akure Grade "B" Customary Court for rehearing and it was accordingly reheard by that Court and the claim of the plaintiff/respondent was dismissed. The plaintiff/respondent then appealed to the Ondo Divisional Grade "B" Customary Court where the appeal was allowed and judgment entered for the plaintiff/respondent. The defendant/appellant appealed to the High Court.

It was clear from the records that only the plaintiff/respondent and the defendant appellant gave evidence at the rehearing in the Akure Grade "B" Customary Court. The evidence given by the plaintiff/respondent was that he had nothing to add to the previous evidence given in the previous proceedings. The defendant/appellant merely tendered some documents.

On Appeal:

HELD:

Where any court exercising appellate jurisdiction orders a cause or matter to be reheard de novo before the court of first instance, the evidence given during the original proceedings cannot be taken into consideration; fresh evidence must be led. In this case, no fresh evidence was led at the rehearing; the court took into consideration the evidence given in the original proceedings; consequently there was a wrongful consideration of evidence vitiating the whole of the retrial before the Grade "B" Customary Court.

PER CURIAM:

Before a rehearing could be ordered under section 53(b) of the W.N. Customary Courts Law the previous proceedings must be quashed.

Appeal allowed: Retrial ordered.

Law referred to:-

W.N. Customary Courts Law, section 53(b).

APPEAL from Grade "B" Customary Court.

Onojobi for the Defendant/Appellant.

Bello for the Plaintiff/Respondent.

Fatayi-Williams, J.:-This is a claim for £100 damages for trespass to a cocoa farm situated at Abebo in Aponmu near Akure. It was first heard and determined in the Akure Grade "B" Customary Court where]h judgment was given on 17-1-61. On appeal to the Ondo Divisional Grade "B" Customary Court, the case was remitted back to the Akure Grade "B" Customary Court for rehearing and it was accordingly reheard by that Court on 10th October, 1961, and 31st October, 1961. The claim of the plaintiff/respondent was dismissed on 7th November, 1961. The plaintiff/respondent then appealed to the Ondo Divisional Grade "B" Customary Court where the appeal was allowed and judgment entered for the plaintiff/respondent on the 14th June, 1962.

It is against this judgment that the defendant/appellant has now appealed to this Court.

It seems to me that the Order made by the Ondo Divisional Grade "B" Customary Court that the case should be reheard by the Akure Grade "B" Customary Court could only have been made under section 53(b) of the Customary Courts Law (Cap. 31 of the Laws of Western Nigeria) which provides as follows:-

"Any court (other than the Federal Supreme Court) exercising appellate jurisdiction in civil matters under the provisions of this Law may in exercise of that jurisdiction quash any proceedings and thereupon, where it is considered desirable, order any such cause or matter to be reheard de novo before the court of first instance or before any other customary court or before any magistrate's court."

In my view, and this is conceded by learned Counsel for both parties, before a rehearing can be ordered under the above section, the previous proceedings must be quashed. Assuming, therefore, that this was done in this case, were the proceedings on 10th and 31st October, 1961, a rehearing or the whole case? It is clear from the records that only the plaintiff/respondent and the defendant/appellant gave evidence at the rehearing on these two dates. The sum total of the evidence given by the plaintiff respondent was that he had nothing to add to the previous evidence both he and his witnesses have given during the previous proceedings which culminated in the judgment of the Akure Grade "B" Customary Court delivered on 17th January, 1961. The defendant/appellant on the other hand merely tendered certain documents. Neither party led fresh evidence at this rehearing to support their respective claims to the farm in dispute. It is, therefore, strange that in coming to a decision on 7th November, 1961, the Akure Grade "B" Customary Court took into consideration the evidence given by both parties and their respective witnesses during the original proceedings which had since been quashed on appeal. This was made abundantly clear by the following extracts from their findings:-

"We have gone through the evidence of both parties and that of their hosts of witnesses. The plaintiff's claim against the defendant is for £100 damages for trespass, the defendant having entered the plaintiff's farm with a surveyor without the plaintiff's permission. The defendant on the other hand pleaded not liable because he did not trespass on the plaintiff's land but on his own land. The defendant maintains that he has nothing to do with the plaintiff because he gave him no land to cultivate there but one John Dabi. But when he thought of the future he went to survey his farm land there in the presence of John Dabi whom he told not to plant cocoa on the land he gave him for cash crops."

In my opinion, this wrongful consideration of evidence which, because of the order of rehearing, should have been repeated at the hearing but was not repeated, is so irregular that it vitiates the whole of the retrial before the Grade "B" Customary Court. That being the case, the subsequent appeal which the Ondo Divisional Grade "B" Customary Court heard and determined on 14th June, 1962, is also irregular.

This Court is not prepared to contribute to this string of irregularities. For this reason, the appeal is allowed and the Judgment of the Ondo Divisional Grade "B" Customary Court is hereby set aside. Pursuant to the provisions of section 53(b) of the Customary Courts law, it is further ordered that the case should be re-heard de novo before the Ondo Divisional Grade "B" Customary Court.