md←→ previous / next
Before Their Lordships
KAYODE ESO Justice of The Supreme Court of Nigeria
ANTHONY NNAEMEZIE ANIAGOLU Justice of The Supreme Court of Nigeria
AUGUSTINE NNAMANI Justice of The Supreme Court of Nigeria
MUHAMMADU LAWAL UWAIS Justice of The Supreme Court of Nigeria
SALIHU MODIBBO ALFA BELGORE Justice of The Supreme Court of Nigeria
Between
ASHIRU NOIBI-Appellant
AND
1. R. J. FIKOLATI
Z. DEBORAH DARAMOLA –Respondent
…………………….A…………………….
BELGORE, J.S.C. (Delivering the Leading Judgment): The matter subsequently leading to final appeal to this Court originated in Ekiti South Customary Court Grade 1. It went on appeal to the High Court of Ondo State, Ekiti Judicial Division sitting at Ado-Ekiti. The Plaintiffs’ claim in the Customary Court is as follows:-
1. Declaration of title to a piece of land which is at Odo- Idemo Street, Okerere quarters, Ikere-Ekiti.
2. 50pounds or N100 general damages for trespass committed and still being committed on the said land.
3. Injunction to restrain the defendant and his agents and servants from committing further acts of trespass on the said land. The said land is about 50 feet by 30 feet and is bounded as follows:
(a) On one side by the tarred Ikere-Ado road.
(b) On the second side by Amos Onikeko Egbake’s house
(c) On the third side by Omotoso’s shop
(d) on the fourth side by Agbanigo’s Storey House.
The value of the land is about 50pounds or N100. Dated at Ado-Ekiti this 19th day of June, 1971.
After a full trial an appeal was lodged in the High Court before Ogundare J (as he then was), who after listening to counsel on both sides in allowing the appeal on one issue concerning want of fair trial, ordered as follows:
“AND AFTER HEARING Mr. Adedeji, counsel for the defendant/appellant and Mr. O.A. Akanle, counsel for the plaintiffs/respondents, the court adjudged and gave judgment as follows:-
It is therefore my view that the exercise of the power to examine a witness or put questions to a witness was wrongly done by the trial court in this case. For that reason, therefore its judgment cannot be allowed to stand. This appeal therefore is hereby allowed. The judgment of Ekiti South Grade “I” Customary Court given on 5/11/79 is hereby set aside. I do not consider it necessary to deal with the other ground of appeal argued.
I shall now consider what consequential order to make. This case has had a chequered history as both counsel informed the court. I do not think that the ends of justice will be met by my ordering a new trial before the Ekiti South Grade “I” Customary Court. By virtue of section 45(a) of the Customary Court Edict, 1978 I hereby order that this case be tried de novo before the High Court, Ado-Ekiti. The costs of this appeal and the costs of the trial below shall abide by the result of the retrial.”
The case therefore by virtue of the above order went before Adeloye J (as he then was) at Ikere Ekiti for hearing de novo. Counsel appeared for both parties, and the case proceeded immediately to hearing. The Plaintiffs’ claims concerning declaration of title to land, injunction to restrain the defendant from trespassing on the same land and the evidence led on both sides never at any stage of the hearing raised any doubt as to the identity of the disputed land and the issue at stake. After a meticulous review of the whole evidence, the learned trial judge entered judgment for the plaintiffs as on the claim before the Court, i.e, the claim as originally filed in the Customary Court for trial de novo. There was no objection to the mode of trial in the High Court by the present appellant nor did any party request for pleadings. Against the decision an appeal was filed in the Court of Appeal, Benin Branch. In the original grounds, there was no mention of purported procedural failure of not initiating the trial de novo with a writ of summons and not filing pleadings. It came up in the additional grounds of appeal filed with leave of Court of Appeal, and it was the ninth ground of appeal at the hearing. It is remarkable that this ground was the one pursued vigorously before the Court of Appeal and is the only one pursued in this Court with any emphasis.
Section 45 Customary Courts Law (Ondo State Cap 33 of 1978) states:
“On the hearing of the appeal the High Court may draw any inference of fact and either
(a) order a new trial on such terms as the Court thinks just;
(b)
This is the order made by Ogundare as drawn up and quoted earlier in this judgment. There is no quarrel with this order. What the appellant seems to be averse to in the Court of Appeal and in this Court is that right from that order there is in substance no more appeal before the High Court but a substantive new suit which is subject to the procedural requirement of the High Court. Thus the appellant contends that Order 2 rule 1 High Court (Civil Procedure) Rules of Ondo State stating:
“1. Every action shall be commenced by writ of summons, which shall show the cause of action and be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action.”
must be complied with. Similarly “Order 13 Rules 1-11” of the same Rules must be complied with: that is to say, there must be pleadings. I believe learned counsel for the appellant has in mind Order 14rr 1-11 which relate to pleadings. The learned Justices of the Court of Appeal dismissed the appeal. Order 14 rule 1 (formerly Order 13 rule I High Court (Civil Procedure Rules) of former W. Region) quoted by the Court of Appeal is not mandatory as it is being made to look in the submission of the counsel for appellant. But assuming it is mandatory, does it apply to the case now on appeal before this Court? The power of the High Court on hearing an appeal from Customary Court is clear in S.45 Customary Courts Law (supra). Section 46 of the same law provides:
“46. Subject to the provisions of this law, the procedure, practice, and manner of appeals shall be in accordance with the rules made under this law, the High Court Law, and any other written laws empowering the making of such rules.”
The appellant has not faulted the transfer of the case when the High Court allowed the appeal and ordered trial de novo before another judge of the High Court instead of remitting it to another Customary Court. From this stage what, I may ask, was to be tried by the High Court de novo? The answer lies in the claim before the Customary Court of first instance. The claim quoted earlier in this judgment is very clear and left no room for ambiguity as to the subject matter and relief sought by the plaintiff. The Customary Courts Rules of Ondo State is very clear about institution of causes or matters. Once the Court has jurisdiction, all the plaintiff has to do is to apply for summons by a written complaint or orally in person. Customary Courts are not to be bogged down in technicalities and the procedures are meant to be not only cheap but as informal and as speedy as possible without destroying the end of justice. The written complaint leading to the issuance of summons is what was quoted earlier as claim. The plaintiff, without the aid of counsel and unable to write either due to illiteracy or ignorance of what to do, can go to the registrar of the
2. 50pounds or N100 general damages for trespass committed and still being committed on the said land.
3. Injunction to restrain the defendant and his agents and servants from committing further acts of trespass on the said land. The said land is about 50 feet by 30 feet and is bounded as follows:
(a) On one side by the tarred Ikere-Ado road.
(b) On the second side by Amos Onikeko Egbake’s house
(c) On the third side by Omotoso’s shop
(d) on the fourth side by Agbanigo’s Storey House.
The value of the land is about 50pounds or N100. Dated at Ado-Ekiti this 19th day of June, 1971.
After a full trial an appeal was lodged in the High Court before Ogundare J (as he then was), who after listening to counsel on both sides in allowing the appeal on one issue concerning want of fair trial, ordered as follows:
“AND AFTER HEARING Mr. Adedeji, counsel for the defendant/appellant and Mr. O.A. Akanle, counsel for the plaintiffs/respondents, the court adjudged and gave judgment as follows:-
It is therefore my view that the exercise of the power to examine a witness or put questions to a witness was wrongly done by the trial court in this case. For that reason, therefore its judgment cannot be allowed to stand. This appeal therefore is hereby allowed. The judgment of Ekiti South Grade “I” Customary Court given on 5/11/79 is hereby set aside. I do not consider it necessary to deal with the other ground of appeal argued.
I shall now consider what consequential order to make. This case has had a chequered history as both counsel informed the court. I do not think that the ends of justice will be met by my ordering a new trial before the Ekiti South Grade “I” Customary Court. By virtue of section 45(a) of the Customary Court Edict, 1978 I hereby order that this case be tried de novo before the High Court, Ado-Ekiti. The costs of this appeal and the costs of the trial below shall abide by the result of the retrial.”
The case therefore by virtue of the above order went before Adeloye J (as he then was) at Ikere Ekiti for hearing de novo. Counsel appeared for both parties, and the case proceeded immediately to hearing. The Plaintiffs’ claims concerning declaration of title to land, injunction to restrain the defendant from trespassing on the same land and the evidence led on both sides never at any stage of the hearing raised any doubt as to the identity of the disputed land and the issue at stake. After a meticulous review of the whole evidence, the learned trial judge entered judgment for the plaintiffs as on the claim before the Court, i.e, the claim as originally filed in the Customary Court for trial de novo. There was no objection to the mode of trial in the High Court by the present appellant nor did any party request for pleadings. Against the decision an appeal was filed in the Court of Appeal, Benin Branch. In the original grounds, there was no mention of purported procedural failure of not initiating the trial de novo with a writ of summons and not filing pleadings. It came up in the additional grounds of appeal filed with leave of Court of Appeal, and it was the ninth ground of appeal at the hearing. It is remarkable that this ground was the one pursued vigorously before the Court of Appeal and is the only one pursued in this Court with any emphasis.
Section 45 Customary Courts Law (Ondo State Cap 33 of 1978) states:
“On the hearing of the appeal the High Court may draw any inference of fact and either
(a) order a new trial on such terms as the Court thinks just;
(b)
This is the order made by Ogundare as drawn up and quoted earlier in this judgment. There is no quarrel with this order. What the appellant seems to be averse to in the Court of Appeal and in this Court is that right from that order there is in substance no more appeal before the High Court but a substantive new suit which is subject to the procedural requirement of the High Court. Thus the appellant contends that Order 2 rule 1 High Court (Civil Procedure) Rules of Ondo State stating:
“1. Every action shall be commenced by writ of summons, which shall show the cause of action and be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action.”
must be complied with. Similarly “Order 13 Rules 1-11” of the same Rules must be complied with: that is to say, there must be pleadings. I believe learned counsel for the appellant has in mind Order 14rr 1-11 which relate to pleadings. The learned Justices of the Court of Appeal dismissed the appeal. Order 14 rule 1 (formerly Order 13 rule I High Court (Civil Procedure Rules) of former W. Region) quoted by the Court of Appeal is not mandatory as it is being made to look in the submission of the counsel for appellant. But assuming it is mandatory, does it apply to the case now on appeal before this Court? The power of the High Court on hearing an appeal from Customary Court is clear in S.45 Customary Courts Law (supra). Section 46 of the same law provides:
“46. Subject to the provisions of this law, the procedure, practice, and manner of appeals shall be in accordance with the rules made under this law, the High Court Law, and any other written laws empowering the making of such rules.”
The appellant has not faulted the transfer of the case when the High Court allowed the appeal and ordered trial de novo before another judge of the High Court instead of remitting it to another Customary Court. From this stage what, I may ask, was to be tried by the High Court de novo? The answer lies in the claim before the Customary Court of first instance. The claim quoted earlier in this judgment is very clear and left no room for ambiguity as to the subject matter and relief sought by the plaintiff. The Customary Courts Rules of Ondo State is very clear about institution of causes or matters. Once the Court has jurisdiction, all the plaintiff has to do is to apply for summons by a written complaint or orally in person. Customary Courts are not to be bogged down in technicalities and the procedures are meant to be not only cheap but as informal and as speedy as possible without destroying the end of justice. The written complaint leading to the issuance of summons is what was quoted earlier as claim. The plaintiff, without the aid of counsel and unable to write either due to illiteracy or ignorance of what to do, can go to the registrar of the
Continue reading NOIBI v. FIKOLATI & ANOR.
You have read the opening. Unlock the full library once and it stays unlocked - one payment, no subscription, the same library as the app.
- All 725 Laws of the Federation, A to Z
- 916 full judgments and 269 case collections
- 8,046 legal principles and 124 rules of court
- 343 drafts, with the Draft Builder
- The Law Dictionary - 31,442 terms
- Law School notes and 2,082 MCQs
Every Act, case collection and principle beginning with A, B or C is free to read in full, without unlocking - the same boundary as the Android app.