IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 3RD DAY OF APRIL 1970
ATITI GOLD .............................................. APPELLANT
BEATRICE OSASEREN ............................................... RESPONDENT
BEFORE: Coker, Udoma and Fatai-Williams, JJ.S.C.
Declaration-Title to land-Judge on appeal re-hearing a case-Judge consulting and making use of evidence which was on the record before him though not given during the re-hearing by him-Whether proper-Customary Courts Law. W.N., Section53.
Appeal from the High Court (Mid-West)
(1) Except with respect to neutral or uncontroversial matters there is no justification or justifiable reason for a judge on appeal who is re-hearing the case to refer to the earlier evidence of witnesses who are testifying again before him except such portions of their earlier evidence as have been put to the witnesses concerned according to law, if a particular witness does not give evidence before him the judge on appeal when he is re-hearing the case as a whole cannot justifiably treat his earlier evidence as evidence before himself and it would be unsupportable on his own part to attach any probative value to such evidence whether it had been earlier on appraised by or before another tribunal or not.
(2) In this case, the observations of the Chief Justice covered not only evidence given before him on the re-hearing but also evidence given in the Customary Court Grade B1 and in particular the evidence of Humphrey Bazuaye, who did not give evidence before him and so he was not in a position to ascribe any probative value to his evidence. The criticisms of the use made of the evidence of Humphrey Bazuaye were therefore justified.
Appeal allowed: judgment of High Court set aside: case sent back for rehearing de novo before a Customary Court having jurisdiction over the matter.
Cases referred to:
Akaigbe v. Idama (1964) 1 All N.L.R. 322.
Craig v. Craig (1967) N.M.L.R. 62.
Law referred to:
Customary Courts Law 1959 W.N. Section 53.
Appeal from the High Court (Mid-West).
Chief Williams for the plaintiff/appellant.
Nylander for the defendant/respondent.
Coker, J.S.C. (delivering the judgment of the court):-The present appellant, Atiti Gold, was the plaintiff in the Benin Customary Court, Grade B1 (Cause No. 42/64). Her writ was endorsed thus:-
"The plaintiff's claim against the defendant is for declaration of title to all that piece or parcel of building plot measuring 100 feet by 75 feet in dimensions situated at Ward "C", New Benin, Benin City demarcated with beacon blocks Nos. PT. PEE478, 468 and 1078.
The plaintiff also seeks an injunction restraining the defendant, her servants and agents from encroaching the said building plot pending the determination of this matter/suit."
Before that court she gave evidence and called three witnesses-Humphrey Obazuaye (or Bazuaye), Samuel Ojo Osagie and Stephen Ogbevoen Orumesie. The defendant, now respondent before us, also gave evidence before that court. She called five witnesses-Omogui Ogbomo (her mother), Christopher Osagiede Osaghae, Omoregbe Bazuaye, Samuel Omokaro Okybor and Daniel Omorodion Oviawe.
Before the Customary Court Grade B1 the case put forward by the plaintiff was that she negotiated for the land in dispute through her husband one Omoregie who in turn employed the services of Humphrey Bazuaye. Although it was discovered at the inspection of the land by the plaintiff's husband and Humprey Bazuaye that Bazuaye's grandfather "occupied" only a small portion of the land and that one Ikubor was in occupation of the rest, yet the plaintiff's husband paid Humphrey Bazuaye for the whole land. The plaintiff then applied by letter dated the 16th June, 1960 (exhibit 1 before the High Court, Benin City) to the Ward C Plot Allotment Committee (within whose jurisdiction the land is situate) for approval of her holding by the Oba of Benin. This was subsequently granted as evidenced by the Oba's signature on exhibit 1. She could not however build on the land as she had proposed to do because in the meantime the defendant had entered upon the land and cleared it for the purpose of building thereon. On the other hand, the case of the defendant in the Customary Court was that the land was a gift to her by her mother Omogui Ogbomo who had handed over to her the following documents at the time of making the gift to her:-
"1. Purchase receipt dated 15th June, 1954, signed by Okubor Sale of rubber trees for building purposes plot measuring 58 ft by 100 ft exhibit F. Block 487 and 468.
2. Transfer of part plot from Chief Bazuaye Oshodin dated 10th June, 1954 measuring 15 ft by 100 ft exhibit G.
3. Application dated 29th August, 1963 to allocation Committee on beacons 487 and 486 approved by Oba of Benin 4-11-63 exhibit H.
4. Govt. Survey Plan No. 11 1353 TJW 290 dated 6th October, 1963 and signed by Surveyor General Mid-Western Benin City on 8th April, 1964. exhibit J."
It was also part of the defendant's case that the "occupiers" of the land were Okubor and Chief Bazuaye Oshodi (the grandfather of Humphrey Bazuaye) and that they properly sold their interests in the land to Omogui Ogbomo. Thereafter, according to the defendant, she applied for the approval of the Oba of Benin for the purchase of the land by virtue of an application dated the 29th August, 1963 (exhibit 3 in the High Court, Benin) and approval was accordingly given to her purchase as evidenced by the Oba's signature appearing on her application. She had entered upon the said land and continued and completed the erection of a building thereon.
Before the Customary Court Grade B1 there was no issue raised as to the requirements of Bini customary law concerning ownership of land and the entire case proceeded on the basis that the radical title to all Bini lands rested in the Oba of Benin; that his approval to all purchases of land must be secured thought the appropriate Ward Allotment Committee and that in the instant case the Oba's approval had been given to two purchases by two different persons (that is to say the plaintiff and the defendant) of the same plot of land. The Customary Court Grade B1 decided in favour of the plaintiff in the course of a judgment which runs thus:-
"The approval of the plot by the Oba of Benin as final authority over communal land dated 18th October, 1961 vested title to the land on plaintiff. The same final authority approved the plot to the defendant on 4th November, 1963... In view of the fact that the plaintiff had the Oba's authority in 1961 we have no alternative than to find in favour of plaintiff."
The defendant then appealed against this judgment to the Customary Court Grade A, Benin City (Cause No. A3/65). The main points canvassed in the Customary Court Grade A by or on behalf of the defendant were that on the evidence before the Customary Court Grade B1 the plaintiff did not negotiate with the actual "occupiers" of the land and that in any case the lower court did not avert to the fact that the defendant was already in possession of the land. For the plaintiff it was their contention that the radical title to all Bini lands was in the Oba of Benin and that as the approval to the plaintiff's transfer was anterior in time to the approval for the defendant, the plaintiff's title must prevail.
In a reserved judgment the learned President of the Grade A Customary Court allowed the defendant's appeal and ordered that the plaintiff's case be dismissed with costs. He proceeded in the course of his judgment to evaluate the evidence which the Customary Court Grade B1 did not evaluate and to place probative values on the testimonies of witnesses who did not appear to give evidence before him. The learned President himself had observed in his judgment that:-
"The judgment (i.e. of the Grade B Court) did not consider the facts, but is based on law, that is to say, on the priorities between the two approvals."
Later and in the course of the same judgment the learned President remarked that if the Oba was made to give approval for "something which did not exist the approval will not confer possessory title on the plaintiff" and eventually he observed as follows:-
"In the result the appeal is allowed on the ground that H. E. Bazuaye had nothing to give Omoregie and told him so. The purported transactions with Humphrey Bazuaye therefore gave nothing to Omoregie or the plaintiff and the allocation and recommendation by the Ward Committee, and the approval by the Oba did not cure this inherent defect."
Against that judgment the defendant had appealed to the High Court, Benin City (Suit No. B/14A/65). Her appeal was heard by Idigbe, C.J., as he then was, and dismissed on the 21st January, 1967. A number of grounds of appeal had been filed on her behalf and argued on both sides before the learned Chief Justice; but in the course of the arguments learned Counsel on behalf of the plaintiff applied for leave to call additional evidence of the requirements of customary law in regard to the acquisition of Bini lands. On the hearing of this application the recorded notes show the following observations by the court:-
"Court to both parties: To a large extent a good part of essential evidence was not put forward before the court of trial and if parties wish, I can hear evidence on custom only, i.e. on the issue of Benin custom of acquisition of land as contained in the appellant's application for fresh evidence; or rehear the entire case and take evidence on the entire issue and in addition on Benin custom and give a decision as could the trial Court, i.e. of first instance-vide section 53 of the Customary Courts Law 1957."
Both Councils then indicated to the court that they would prefer that the case he heard "all over" and "as a whole" as the judgment of the Grade A Customary Court was unsatisfactory to both sides. The learned Chief Justice then ordered that the case "will be reheard on the whole" by himself and fixed a date for the hearing.
At this stage we feel bound to comment on a point which though not expressly canvassed on this appeal yet is of supreme importance in matters connected with appeals on matters of fact. Before the High Court neither side had questioned the propriety of the action of the learned President of the Grade A Customary Court in appraising the evidence given only before the Customary Court Grade B1 and both sides had proceeded on the appeal before the High Court on the assumption, undoubtedly a wrong one, that the learned President was entitled to do what he did. No evidence was taken by or before him and he therefore neither saw nor heard the witnesses. In these circumstances he should not have proceeded to evaluate the evidence and make findings of facts and he should have had recourse to the provisions of section 53 of the Customary Courts Law, Cap. 31 (Laws of the Western Region of Nigeria, 1959, applicable in the Mid-West). If the appeal before the High Court and before us had rested on the judgment of the learned President of the Grade A Customary Court and it was found necessary to appraise the evidence, we would have had no alternative but to send the case back to the Customary Court Grade B1 to perform the duty which pre-eminently belongs to that court that saw and heard the witnesses.
Be that as it may, Idigbe, C.J., Mid-West State, as he then was, reheard the case. Before him the plaintiff gave evidence and called as witnesses Stephen Ogbevoen Orumesie (Secretary Ward C Allotment Committee), Samuel Ojo Osagie, Obediah Edomwen Omoregie (a surveyor who produced a plan of the land in dispute), Daniel Omoregie (plaintiff's ex-husband), Humphrey Igbimosu Ozigbo and Odigie Isibor. In like manner the defendant gave evidence and called four witnesses Raliatu Bello Omogui Ogbomo (defendant's mother), Samuel Omokaro Okubor, Omoregbe Bazuaye and Christopher Osagiede Osagha. The evidence was of the same pattern as had been given before the Customary Court Grade B1 save that-
(i) Humphrey Bazuaye, who gave evidence for the plaintiff before the Customary Court Grade B1, did not give evidence before the High Court;
(ii) Obediah Omoregia, Daniel Omoregie, Humphrey Ozigbo and Odigie Isibor, who did not give evidence in the Customary Court Grade B1, testified before the High Court; and
(iii) Daniel Oviawe, who gave evidence for the defendant in the Customary Court Grade B1 did not give evidence in the High Court.
In the course of a reserved judgment, Idigbe, C.J., as stated before, dismissed the plaintiff's appeal with costs and also dismissed her case. The observations of the learned Chief Justice covered not only evidence given before him on the re-hearing but also evidence given in the Customary Court Grade B1 and in particular the evidence of Humphrey Bazuaye. Hence the point arose before us as to whether in the present circumstances of this case the learned Chief Justice on appeal was competent to consult and make use of evidence which was on the record before him even though not given during the re-hearing by him. Learned Counsel for the plaintiff submitted that the judge was not entitled even to look at the evidence in the record of appeal if he was re-hearing the whole case as here though he could look at the record of proceedings if he was deciding the case on those records. On the other hand learned Counsel for the defendant submitted that the judge was entitled even in the course of a re-hearing to make use of the recorded evidence; and that even if the judge was not so entitled in the present case the learned Chief Justice on appeal had made use only of such portions of the evidence before the Customary Court Grade B1 (and not before him) which had been put by way of cross-examination to the witnesses who had testified before him on appeal.
The matter is not free from difficulty but can rightly be approached by an understanding of section 53 of the Customary Courts Law, Cap. 31 (Laws of the Western Region of Nigeria, 1959). The section reads as follows:-
"53. Any court (other than the Supreme Court) exercising appellate jurisdiction in civil matters under the provisions of this Law may in the exercise of that jurisdiction-
(a) after rehearing the whole case or not, reverse, vary or confirm the decision of the court from which the appeal is brought and may make any such order as the court of first instance could have made in such cause or matter or as the appeal court shall consider that the justice of the case requires;
(b) 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."
The sections provides in effect that a court exercising appellate jurisdiction in civil matters from customary courts may, under paragraph (a) rehear the whole case, that is take evidence on its own and come to a just and necessary conclusion on the evidence so taken or, under (b), quash the entire proceedings so that there was nothing more to consult in the record of appeal and make an order for the entire case to be reheard in any of the courts stated in that section. Under paragraph (a) it is not stated that the proceedings that have come on appeal should have been quashed before the court of appeal exercises its jurisdiction to re-hear the whole case but it must be conceded that what the section says is that the court of appeal should re-hear the case. It must not be forgotten that the judge on appeal, even if he was re-hearing a case, is still exercising appellate jurisdiction. This point is of vital importance for it may well be that in normal circumstances such a court has no original jurisdiction to hear the matter. Paragraph (b) of section 53 stipulates the courts which are entitled to rehear proceedings already quashed and it has been decided that such a court must have original competence to try the action. See Akaigbe v. Idama (1964) N.L.R. 322. If then the judge who proceeded under paragraph (a) still has the proceedings before him, which proceedings have not been quashed, it is inconceivable that he should not be able to look at the records before him. The evidence and the proceedings contained in the records of appeal before him are indeed the materials which he is enjoined by law to consider in deciding the appeal. But it has never been the practice of a court of appeal to place first values on evidence not given before it and an appeal on facts must accept the findings of fact by the court which saw and heard the witnesses as long as those findings are supported by evidence rightly accepted by the trial Court. It will however be too wide a view to take to say that the judge on appeal is bound by the values placed on the earlier evidence of witnesses who have testified again before him. Such a view would unnecessarily fetter the judge's own discretion and cripple the very essence of judicial independence. The result in our view is that except with respect to neutral or uncontroversial matters there is no justification or justifiable reason for a judge on appeal who is re-hearing the case to refer to the earlier evidence of witnesses who are testifying again before him except such portions of their earlier evidence as have been put to the witnesses concerned according to law; if a particular witness does not give evidence before him the judge on appeal when he is re-hearing the case as a whole cannot justifiably treat his earlier evidence as evidence before himself and it would be insupportable on his own part to attach any probative value to such evidence whether it had been earlier on appraised by or before another tribunal or not.
So Idigbe, C.J. re-heard the case in its entirety. He reviewed extensively the facts given in evidence before him and in particular the requirements of customary law for obtaining valid titles to native lands at Benin. On this point the learned Chief Justice commented as follows:-
"A native may occupy land (i.e. any land not already in previous occupation of any individual) for farming purposes, and although such an 'occupier' is usually loosely referred to as an 'owner' he is not under Bini custom the legal owner until he has got the approval of the Oba of Benin to 'own' that land; this is because basically all land in Benin is owned by the community for whom the Oba of Benin holds the same in trust and, it is the Oba who can transfer to any individual the ownership of such land and until so transferred the occupier may continue to hold it for purposes of farming only. When therefore any one wants or wishes to own such land for purposes other than farming, i.e. of true ownership, that person must apply to the Oba through the plot allotment committee for ownership of it. It appears from the evidence that the procedure for obtaining complete ownership of such land by a non-occupier is this: the applicant must first negotiate with the occupier (usually farmer) to buy the occupier's interest (i.e. his crops) in the land and having settled with the occupier, he must then apply to the plot allotment committee who should satisfy that negotiation for transfer or purchase of the crops thereon has been settled thereafter the committee would recommend to the Oba confirmation or approval of ownership of the land by the applicant."
He came to the conclusion that on the evidence the land in dispute was originally occupied by both Okubor and Chief Bazuaye Oshodi (father of Omoregbe Bazuaye) and that the defendant clearly purchased their interests before applying for the Oba's approval as per her application dated the 29th August, 1963 (exhibit 3). He also found that the plaintiff had only purported to buy the occupational interests of Chief Bazuaye Oshodi and that in any case that did not exhaust the interest of the occupiers of the whole land and moreover that the interests of Chief Bazuaye Oshodi had already been disposed of in 1954 to Omogui Ogbomo (1st defence witness and mother of the defendant). He observed as follows:-
"I was however not satisfied on the evidence that the appellant had bought the `right' or `interest' of prior occupants of the entire area of the land at any time and on the view I have taken of the evidence given before me on the custom of the Binis on the subject of ownership of land whatever interest the appellant may have on the land cannot ripen to full ownership until she had bought the interest or rights of prior occupiers of the land. The onus was on her as plaintiff to satisfy the court on the issue and on the recorded evidence in the lower court and that which was given before me the appellant has not discharged this onus.
In those circumstances I take the view that the appellant has not proved her case (even on a preponderance of evidence) and I find myself unable to take the view that the judgment of the learned President of the Grade A Court (Customary) was wrong."
As stated before, the learned Chief Justice then dismissed the plaintiff's case with costs.
The plaintiff has appealed to this Court against that judgment. Before us the complaints were that the learned judge on appeal was wrong to-
(a) postpone the title of the plaintiff to that of the defendant even in the face of exhibit 1 which is earlier in time than exhibit 3;
(b) rely upon the evidence of Humphrey Bazuaye to discredit the plaintiff's case when Humphrey Bazuaye did not give evidence before him; and
(c) refuse to non-suit the plaintiff when in this case that was the appropriate order to make.
The argument that the title of the plaintiff was wrongly postponed is based on the supposition that only the two documents, exhibits 1 and 3 could be looked at and the argument clearly overlooks the evidence which the learned Chief Justice, rightly in our view, accepted by which the procedure for obtaining approvals to purchases of native Bini lands was established. The question at all times was which of the parties had made a good title to the land and certainly not which of them first obtained the Oba's approval which, according to the evidence again rightly accepted by the learned Chief Justice, was but a single though culminating step in a whole chain of events and conditions to be strictly fulfilled by a prospective purchaser. The evidence accepted by the learned Chief Justice demonstrates conclusively that the occupational rights of the farmers on the land may not be compromised and unless these were brought out the necessary procedure for securing the Oba's approval to the purchase could not properly and should not be initiated. At the end of the day learned Counsel for the plaintiff himself conceded that the occupational interests of one of the farmers on the land at least had not been purchased by the plaintiff. He nevertheless argued that on account of the priority of exhibit 1 over exhibit 3 the plaintiff acquired a legal title to the land subject only to the occupational rights of the unpaid farmer which had been transferred to the defendant. The argument revolves entirely on the English law of landholding and English notions of land law. We are not told, nor is there any evidence to suggest, that the tenure under which the parties claim in the present proceeding is susceptible of such incidents and we must reject the argument.
With respect to the attack on the use made by the learned Chief Justice of the evidence of Humphrey Bazuaye, it was argued that the evidence of both Okubor and Omorege Bazuaye was accepted because the learned Chief Justice related their evidence to the evidence of Humphrey Bazuaye in the Customary Court Grade B1 and also that the evidence of the plaintiff was disparaged on the ground that it had conflicted with the same evidence of the same Humphrey Bazuaye. Besides this it is true that the learned Chief Justice took the view that he was entitled to look at and take into consideration the entire proceedings before him, for in the course of his judgment he expressed himself thus-
"After due consideration of the entire evidence before me and in the record of appeal the situation appears to me to be this: Omogui bought from two vendors (occupiers of the land in dispute) (Oshodi Bazuaye-and this I find on the evidence of Omoregbe Bazuaye-and Okumber, both of whom (believed) the entire area of land in dispute; and, very much later in 1963 got the confirmation of the Oba of her ownership of the land in dispute."
The criticism of the use made of the evidence of Humphrey Bazuage seem to us to be justified. Those criticisms are undoubtedly based on the following passage from the judgment of the learned Chief Justice where he stated thus-
"I was very impressed by the witness Okumbor and I also believed him that he was in occupation of greater part of the land in dispute (measuring roughly 58 ft by 100 ft) and that he sold the same to madam Omogui, in 1954. In this regard, it is well to recall the evidence of Humphrey Bazuaye who was a witness for the appellant in the lower court; part of his evidence reads-
"We went to the area (i.e. land in dispute) and observed that only 15 feet of the plot belonged to my grandfather and the balance of about 60 ft belonged to one Okumbor... (underline supplied). I was equally impressed with Omoregbe Bazuaye and was satisfied with his story that he witnessed the sale by his father (Oshodi Bazuaye) of part of the land in dispute to Madam Omogui in 1954. I was not, on the whole impressed with the appellant and particularly to find it difficult in the face of the evidence of Humphrey Bazuaye to believe that Humphrey sold to her ALL of the area of the land in dispute (i.e. the entire area in dispute) either directly or through her agent, Omoregie, with whom I was not impressed."
The man Humphrey Bazuaye did not give evidence before the learned Chief Justice and so he was not in any position to ascribe any probative value to his evidence. The Customary Court Grade B1 before which Humphrey Bazuaye gave evidence did not attempt to evaluate his evidence. We had already pointed out that the learned President of the Grade A Customary Court was not entitled, as he did, to proceed to appraise such evidence and the learned Chief Justice on appeal was in no better position. On this ground of appeal therefore the appeal must succeed.
The ground relating to the judge's refusal to non-suit the plaintiff does not need any further consideration in the events that have happened. If we were called upon to decide it we would have held that no argument of any substance had been addressed to us to justify such an order. If a plaintiff in a declaration of title fails to prove his title, the proper order is one of dismissal. The question of non-suit only comes in when exceptional circumstances occur and the court rightly conclude that the plaintiff's failure was due to a mere hitch in the presentation of his case and the defendant was not entitled to the judgment of the court. In such a case the two parties or their Counsel should be consulted and should be asked to address the court on the point. See Craig v. Craig  N.M.L.R. 52. In the case in hand, no justification exists for any such an exercise and that ground of appeal would have failed in any case.
On the whole, however, the appeal succeeds and it is allowed. The judgment of the High Court, Benin, in appeal No. B/14A/65, including the order for costs and for the avoidance of doubt all previous judgments existing in this case, are set aside. It is ordered that this case be sent back for re-hearing de novo before a customary court having jurisdiction over the matter. The costs of this appeal in this Court shall be paid by the defendant to the plaintiff fixed at 62 guineas. Costs of the re-hearing shall abide the event.
Appeal allowed: judgment of High Court set aside: case sent back for rehearing be novo before a Customary Court having jurisdiction over the matter.