Admissibility of Evidence in Trial Aborted by Order of Trial De Novo, in Subsequent Proceedings

In the Supreme Court of Nigeria

Holden at Abuja

On Friday the 15th day of December, 2023

Before Their Lordships

Kudirat Motonmori Olatokunbo Kekere-Ekun

Mohammed Lawal Garba

Ibrahim Mohammed Musa Saulawa 

Tijjani Abubakar

Emmanuel Akomaye Agim

Justices, Supreme Court

SC/393/2011

Between

1.  OGBUEFI PHILIP OKADIGBO

2. KINGSLEY SAMUEL ELOBISI

3. LEONARD OKAFOR                    APPELLANTS

4. AUGUSTINE IKEZUE

(SUBSTITUTED FOR: OBIANWUNA OGBUUANYIYA

NWANKWO MUOKUE, UDEDIBIA CHIEZIE, ANDREW OBIECHINA, 

MICHEAL ELOBISI, AND CHIJI ADIBE)

(BY ORDER OF THE COURT ON 10/2/2003)

FOR THEMSELVES AND ON BEHALF OF

THE PEOPLE OF UMUERI, OGBUNIKE)

And

1.  GOZIE ANYAEGBUNAM

     (SUBSTITUTED FOR RAPHAEL

    ANYAEGBUNAM AND UDO OJECHI                                     RESPONDENTS

    BY ORDERS OF THE COURT ON 22/11/2007

    AND 11/06/2015 RESPECTIVELY)

2. PATRICK ONYEKWELU IREMEKA

3. ERICK CHUKWUMA

4.  VINCENT OKAKPU

(Added as 2nd, 3rd, and 4th Respondent by Order of the Court

on 11/06/2015 for themselves and on behalf of the people of Abo, Ogidi)

(Lead Judgement delivered by Honourable Emmanuel Akomaye Agim, JSC)

Facts

The suit was instituted as far back as 1958, before the Onitsha Judicial Division of the High Court of the former Eastern Region. As a result of the Nigerian civil war, it suffered several setbacks. After a full trial, judgement was eventually entered in favour of the Respondents on 17th June, 1977, coram Nnaemeka-Agu, J. The Appellants appealed against the judgement on the ground that it was delivered without jurisdiction, as His Lordship had been elevated to the Court of Appeal with effect from 15th June, 1977, two days before the judgement was delivered.

Although unsuccessful at the Court of Appeal, the appeal was allowed by the Supreme Court, which ordered that the case be tried de novo. The case, accordingly, went back to the High Court. At the hearing de novo, the Appellants raised an objection to the competence of the Writ of Summons that was used to initiate the suit in 1958. The issue was fought all the way to the Supreme Court, without success. Nwizu, J. eventually heard the suit to conclusion, and found in favour of the Respondents in the judgement delivered on 24th April, 2007. By the said judgement, the trial court held that the Respondents as Plaintiffs are entitled to the Statutory Right of Occupancy to all the land known as Isi-Agu land in Abo Ogidi. 

Once more, the Appellants were dissatisfied with the judgement and filed an appeal to the Court of Appeal. The appeal was unanimously dismissed, on 28/7/2011. Further dissatisfied with the decision of the appellate court, the Appellants filed the instant appeal to the Supreme Court. 

Issues for Determination

The Supreme Court adopted the following issues formulated by the Appellants in their Amended Brief of Argument, thus:

1. Whether in all the circumstances, the admission, use, reliance and acceptance of Exhibits B and C, being the evidence of four witnesses in a previous trial, accorded with the provisions of Section 34(1) of the Evidence Act, and the principle of a fair adjudication under our adversarial system.

2. Whether the conflicts of evidence of the parties regarding the features on the land in dispute, were properly resolved without a visit and or inspection by the trial Judge to the locus in quo (the land in dispute).

3. Whether the Plaintiff/Respondents had proved the various acts of ownership and possession, to sustain a declaration of title to the land in dispute.

4. Whether the Court of Appeal was right in upholding the finding of the trial court, that the case of the Appellants strengthened the case of the Respondents.

5. Whether this is a proper case for the Supreme Court to interfere with concurrent decisions of the lower courts.

Arguments

Counsel for the Appellants argued that the fact of the death of the witnesses whose testimonies in an earlier stage of this case are contained in Exhibits B and C should have been pleaded before the exhibits can qualify for admission as evidence at a later stage of this case; that since it was not so pleaded, the testimonies cannot be admitted as evidence under Section 46(1) of the Evidence Act, 2011. In support of his arguments, Counsel cited inter alia AYORINDE v SEGUNRO (2012) 11 NWLR (PT 1312) 460, and contended that the facts that establish the requirements in Section 39 and the proviso to Section 46(1) of the Evidence Act, must be pleaded before previous witness testimony can be admitted as evidence in a later proceeding. He argued further that such evidence is not relevant in a later trial, except for the purpose of cross-examination to discredit a witness in the subsequent proceedings. Counsel for the Respondents submitted otherwise.

On the second issue, Counsel for the Appellants argued that it is preferable that a visit by the court to the locus in quo should be on the application of one or both of the parties and agreed to by all concerned, but the court is not precluded from deciding suo motu to visit the locus in quo, if, in its view, such a visit is necessary for arriving at a correct and judicious decision of the case before it. Counsel submitted that the state of the evidence clearly showed that the trial court should have made the visit to or inspection of the land in dispute, as there were ambiguities or conflicts in the evidence (based on their pleadings) which the visit or inspection would have helped to resolve. Counsel for the Respondents contended otherwise. He posited that the Respondents did apply for the trial court, to visit the land in dispute. And, that the Appellants by relying on the very Exhibits B and C they had argued is not legal evidence, to argue that the Respondents applied for the trial court to visit the land in dispute is approbating and reprobating. More so, the trial court did not see the need for it to visit the locus in quo.

The Supreme Court discountenanced issue 3, on the ground that it sought to reopen the determination of the factual issue already determined by the concurring decisions of the lower courts. Since the Appellants were not contending that the concurring decisions are perverse or wrong in any respect, it was accordingly dismissed. The Apex Court, however, took arguments on issues 4 and 5 and pronounced on same.

Court’s Judgement and Rationale

Deciding the first issue, the Supreme Court noted that the testimonies in Exhibits B and C were given by witnesses in the first trial proceedings in this case. They remained part of the records of this case, showing the history of the case from the date of commencement of the suit. The fact of such previous testimonies already forming part of the record of Suit No. 0/7/1/1958 need not be pleaded in the pleading of the parties, before evidence of that fact can be led on it during the trial de novo. The Apex Court further observed that PW1 testified in examination-in-chief that the said witnesses were all dead, as a foundation for seeking that their testimonies be admitted as evidence in the trial de novo, to prove the truth of the facts contained in them in keeping with Sections 39 and 46 of the Evidence Act 2011.

Their Lordships held that it is not in every situation that a party who desires to rely on a witness testimony in a previous judicial proceedings must plead and prove the facts that establish the requirements in the Proviso to Section 46(1) of the Evidence Act 2011. The need to plead the fact establishing the requirements for admission of evidence given by a witness in a previous judicial proceedings, would depend on whether the previous judicial proceedings is in the same case at an earlier stage of it or in a separate and distinct case. If it is evidence given by a witness in proceedings in a previous case that is distinct from a pending case, then it cannot be admitted as evidence in proceedings in the pending case, unless the facts establishing the existence of the requirements of Sections 39 and 46 are stated in the pleadings in the subsequent case. So, it is only where the witness testimony was in judicial proceedings in a case separate or different from the latter case, that the facts of the existence of such witness testimony in a previous case, the similarities of parties and issues between that case and the latter one, and the fact that in the previous one, the adverse party had the right and opportunity to cross-examine the witness, must be pleaded in the subsequent case, before evidence of such facts can be admitted.

The Court proceeded to include for clarity that the previous statement of a witness recorded in a previous judicial proceeding can also be used in a subsequent judicial proceeding to cross-examine the same witness concerning that testimony in the previous proceeding by virtue of Section 232 of the Evidence Act 2011. The use of the previous statement of a witness under Section 46(1) of the Evidence Act, is different from the use of a previous statement under Section 232 of the Evidence Act 2011. Concerning the former, the previous statement must have been made in a judicial proceeding and the maker is not a witness in the subsequent judicial proceedings because he or she is not available to be called as a witness for the reasons stated in Sections 39 and 46(1) of the Evidence Act 2011. The Previous written statement of a witness under Section 232 of the Evidence Act applies to extra-judicial statement and statement made in a prior judicial proceedings, the maker must be called as a witness in an going judicial proceedings and the previous can be used only to cross examine such witness concerning such statement.

Issue  one was resolved against the Appellants.

The court held that the Appellants raised this issue as a fresh issue, despite the trial court and the Court of Appeal both having thoroughly reviewed the pleadings and evidence from both parties. Their Lordships noted that the trial court evaluated the evidence, made factual findings, and determined the boundaries and features of the land in question, concluding that the Respondents proved their claim to the land, and the Court of Appeal concurred with this assessment. Their Lordships held further that the Appellants did not show that these findings were perverse, or that there was a serious legal breach causing injustice; instead, they argued that the trial court should have visited the land. 

The Apex Court observed that neither party requested a visit to the land during the trial, indicating that the parties were clear about the land’s extent and its features. As such, the trial court was not obligated to visit the land, merely because the Appellants disputed the Respondents’ claims. The Supreme Court therefore, held that the judgement of the trial court demonstrated a clear understanding of the disputed area, making a visit to the land unnecessary – EBOADE v ATOMESIA (1997) 5 NWLR (PT 506) 490.

The Supreme Court addressed issues four and five by noting that the Respondents, as Plaintiffs, based their claim to the Right of Occupancy of Isi-Agu land on a long history of possession and acts of ownership from time immemorial. Their Lordships consequently, held that the Appellants woefully failed to demonstrate from the pleadings and evidence placed before the trial court, at both the initial trial and the trial de novo, by the parties, that the concurrent findings that the Respondents had proved their case of possession and exercise of acts of ownership from time beyond memory, are perverse or to have occasioned miscarriage of justice.

Appeal Dismissed.

C.I. Okafor, Esq with C.F. Obi, Esq for the Appellants.

K.O. Kama, Esq for the Respondents.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)