OBU V. OTOYO: On whether Judge who did not hear witnesses can rely on previous proceedings to decide the matter . An insight into the decision of the Court of Appeal therein

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OBU V. OTOYO: On whether Judge who did not hear witnesses can rely on previous proceedings to decide the matter . An insight into the decision of the Court of Appeal therein. Citation: (2021)12 NWLR PT. 1791 AT 521. Courtesy: Moruff O. Balogun Esq.

 

PARTIES IN FULL:
MR. ADE OBU
MR. SUNDAY KAYANG
MR. JAMES UNDE.
V.
1. CHIEF GABRIEL OTOYO
2. MR. DOMINIC LIBEH

Summary of facts:
The respondents filed an action against the appellants and claimed amongst others a declaration that they (respondents) were entitled to a customary right of occupancy over their Family land lying and situate at Lisheb-Abeb, Usulibi, Ablassan, Obanliku Local Government Area; an order of injunction restraining the appellants, their agents or assigns from trespassing into the said farmland; the sum of N3,000, 000 (Three Million Naira) as general damages for trespass and N1,000,000 (One Million Naira) as cost of action.

The appellants filed a statement of defence and counter claimed inter alia a declaration that the appellants are the holders of the deemed customary right of occupancy over all the parcel of farm land known and called Kabung Swamp situate at Akpashi in Ablassang and thereat; sandwiched by the farm lands of Bassey Okpoboh on the other.

The said land is also sandwiched by the farmlands of Gregory Kepen and Carnice Okokoh Eneng; an order of perpetual injunction restraining the respondents, their agents and privies from further entry into the said land and an order awarding
general damages for trespass in the sum of N20,000,000 (Twenty Million Naira against the respondents.

Pre-trial conference was conducted before his Lordship, Justice Ashu Ewah of the Cross River State High Court on the 12th day of February, 2018. Trial opened before Justice Ashu Ewah on the 15h day of March, 2008. CW1 (Dominic Libeh) and CW2 (Francis Shiyam) gave evidence on behalf of the respondents. DW1 (Sunday Kayang) also gave evidence for the appellants before Honourable Justice Ashu Ewah.

Shortly after that his Lordship Justice Ewah was transferred to another judicial division of the Cross River State High Court. When his Lordship, Justice Ofem I. Ofem took over proceedings in the matter, the respondents applied for the adoption of the previous
proceedings. The court adopted the previous proceedings as applied to by both parties and adjourned for continuation of defence to the 21st May, 2018.

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Before the adoption of the previous proceedings, CW1, CW2 and DW1 had given evidence before Hon. Justice Ashu Ewah. Hon Justice O. I. Ofem took the evidence of only DW2 and thereafter gave judgment in the case.

Both parties to the case relied on traditional proofs in support of their cases. The trial Judge after reviewing of the evidence preferred the traditional history of the respondents and rejected that of the appellants. He entered judgment for the respondents and declared them entitled to the customary right of occupancy over the family land lying and situate at Lisheb-Abeb, Usulibi, Ablasan, Obanliku Local Government Area.

Dissatisfied with the judgment, the appellants appealed to the Court of Appeal.
In determining the appeal, the Court of Appeal considered the provisions of sections 39 and 46(1) of the Evidence Act. Section 39 of the Evidence Act provides:

39 – Statements, whether written or oral of facts in issue or relevant facts made by a person-
a) Who is dead;
b) Who cannot be found;
C) Who had become incapable of giving evidence; or
d) Whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are admissible under Section 40- 50.”

Section 46(1) which state:
46(1) Evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is admissible for the purpose of proving in a subsequent
judicial proceeding, or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness cannot be called for any of the reasons specified in section 39, or is kept out of the way by the adverse party.

Provided that:
The proceeding was between the same parties or their representatives in interest.
The adverse party n the first proceeding had the right and opportunity to cross-examine, and
The questions in issue were substantially the same in the first as in the second proceeding.

HELD: Unanimously allowing the appeal.

The court of appeal raised and considered the following issues:

On whether Judge who did not hear witnesses can rely on previous proceedings to decide the matter-
It is wrong to write a judgment based on the evidence recorded by another Judge. A trial is a judicial examination of evidence according to the law of the land, given before the court after hearing parties and their witnesses. A trial must be conducted by the Judge himself and at the end of the hearing, he will write the judgment which is the authentic decision based on the evidence received and recorded. It is a mistrial for one Judge to receive evidence and another to write judgment on it. In the instant case, the learned trial Judge was in grave error to have adopted the evidence of CW1, CW2 and DW1 in the previous proceeding without fulfilling conditions stipulated in section 46(1) of the Evidence Act.

On admissibility of statements made by a person who cannot be called as a witness-
By section 39 of the Evidence Act, statements made by a person who cannot be called as a witness is admissible if the statements, whether written or oral of facts in issue or relevant facts is made by a person:
(a) who is dead;
(b) who cannot be found;
(C) who had become incapable of giving evidence
or
(d) whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable.
Thus, statements made under the above circumstances are admissible under sections 40 to 50 of the Evidence Act.

On when evidence given by a witness in a judicial proceeding admissible for proving in subsequent proceeding the truth of facts stated in it –
By virtue of the provision of section 46(1) of the Evidence Act, evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is admissible for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness cannot be called for any of the reasons specified in section 39 of the Evidence Act, or is kept out of the way by the adverse party.

Provided that:
The proceeding was between the same parties or their representatives in interest.
The adverse party in the first proceeding had the right and opportunity to cross-examine, and
The questions in issue were substantially the same in the first as in the second proceeding.

Per OWOADE, J.C.A. at pages 533-534, paras. G-B:
“In the instant case, learned counsel for the respondents applied orally in court to adopt the evidence of witnesses that testified earlier in the suit before Hon. Justice Ashu Ewah, the learned counsel for the appellant did not object and the new trial Judge Hon. Justice Ofem. Ofem granted the said oral application. In making and/ or granting the respondent’s/claimant’s application, there was no evidence whatsoever brought forward to explain the reasons in the words of section 46(1) of the Evidence Act 2011 why the witness(es) cannot be called for any of the reasons specified in section 39, or is kept out of the way by adverse party.’

If I may repeat, the only circumstance for the admissibility of “…certain evidence for proving: in subsequent proceeding, the truth of facts stilted in it…” is as provided in section 46(1) of the Evidence Act 2011”.

 

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414
09121207712 [WHATSAPP]


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