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MEWI ONYEANWUSI
V.
JONATHAN OKPUKPARA AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
4TH DAY OF MAY, 1953
APPEAL NO. 3880
2PLR/1954/71 (WACA)
OTHER CITATION(S)
2PLR/1954/71 (WACA)
(1953) XIV WACA PP. 311-312
LEX (1953) – XIV WACA 311-312
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
VERITY, C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
APPEAL IN CONSOLIDATED SUITS
MEWI ONYEANWUSI – Appellant
AND
JONATHAN OKPUKPARA AND OTHERS – Respondents
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AND
STEPHEN MBAOCHU AND OTHERS – Appellants
AND
CHIEF JONATHAN OKPUKPARA AND OTHERS – Respondents
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ORIGINATING COURT(S)
Appeal from decision(s) of the Supreme Court in consolidated suits before Manson, J.
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REPRESENTATION
J. I. C. Taylor — for Appellants
Udo Udoma — for first Respondent
G. B. A. Coker — for second Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Cross-actions relating to a piece of land — Where an entry in the minute book of a meeting of the Native Authority responsible for the land including the piece in dispute was admitted — Legal effect on decision(s) arising therefrom
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PRACTICE AND PROCEDURE ISSUE(S)
EVIDENCE:- Rules applicable— Entry in public record— Evidence Ordinance (Cap. 63), sections 1(2) and 38.
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CASE SUMMARY
The above section 1(2) provides that –
“This Ordinance shall apply to all judicial proceedings in or before any court established in Nigeria but it shall not apply…
“(c) to judicial proceedings in or before a Native Court unless the Governor in Council shall by order confer upon any or all Native Courts jurisdiction to enforce any or all of the provisions of this Ordinance.”
And the above section 38 provides that:-
“An entry in any public or other official book, register or record, stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.”
In these cross-actions relating to a piece of land, an entry in the minute book of a meeting of the Native Authority responsible for the land including the piece in dispute was admitted; it stated that out of eighty-eight members only three opposed the proposal that the Leper Clinic be given a name chosen on the ground that the Clinic had been erected on land belonging to the first respondent’s people. The trial Judge admitted the entry under section 38 of the Evidence Ordinance (Cap. 63), saying besides that “To reject such evidence would be to exclude a type of evidence which is admitted in the Native Courts”. The appellants argued that he erred in admitting the entry (and this headnote deals with that point only).
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
The entry was admissible under section 38 of the Evidence Ordinance.
Per curiam: The fact that certain evidence is admissible in a Native Court is not a valid ground for admitting it in the Supreme Court; it is the Evidence Ordinance, or, if it is silent, the common law of England which applies in the Supreme Court; but that Ordinance does not apply in Native Courts unless the Governor in Council so authorises.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
In this case the appellants sued the respondents claiming a declaration of title to an area of land known as “Isu Akpu” land, recovery of possession and damages for trespass, and were themselves sued by the first respondent who also claimed for a declaration of title to the same land, damages for trespass and for an injunction to restrain the appellants from any further acts of trespass in respect of such land.
The two suits were consolidated, together with another one with which we are not concerned on this appeal.
The consolidated actions came for trial before Manson, J., who gave judgment for the defendants-respondents in the appellants’ suit, and judgment for the first respondent in his suit against the appellants, and it is against these decisions that the appellants have appealed.
Two grounds of appeal were argued, firstly, that the verdict is against the weight of evidence, and, secondly, that the learned trial Judge erred in admitting in evidence a minute book of the Aguata Native Authority and relying on an entry contained therein, which purported to be a record of a meeting held on the 3rd July, 1946, as evidence of general reputation regarding the ownership of a portion of land in dispute in this case.
The entry in the minute book the admission in evidence of which is complained of, was a record of a decision made at a meeting of the Aguata Native Authority which took place on the 3rd July, 1946, regarding the name to be given to a Leper Clinic which had been erected on a portion of the land in dispute between the appellants and the first respondent. The relevant entry records the fact that out of eighty-eight members present at the meeting only three members opposed a proposal that the Clinic should be named Nawfija Leper Clinic. Oral testimony was given to the effect that the Native Authority is responsible for a large area within which lies the land in dispute, and that the Clinic was so named because it had been erected on land belonging to the first respondent’s people, Nawfija-Awka.
The learned trial Judge admitted the entry under section 38 of the Evidence Ordinance, but when discussing the question of its admissibility or otherwise he said:
“To reject such evidence would be to exclude a type of evidence which is admitted in the Native Courts.”
I agree that it is admissible under the Evidence Ordinance, but am unable to agree that the fact that evidence is admissible in proceedings before Native Courts makes it admissible in proceedings before the Supreme Court. The practice and procedure of Native Courts is governed by special rules, whereas the Evidence Ordinance, or if it is silent the common law of England, applies to proceedings in the Supreme Court. The Ordinance does not apply to judicial proceedings before Native Courts unless the Governor in Council expressly confers upon a Native Court jurisdiction to enforce any or all of its provisions: section 1(2)(e). As the trial Judge said, the question of the weight to be given to this evidence is, of course, another matter.
Apart from the entry in the minute book of the Native Authority, however, the trial Judge, after a careful review of the evidence, came to the conclusion that the appellants’ claim was ill-founded, and he accepted the case put forward by the first respondent. He also found that the southern boundary of the appellants’ land was that contended for by the second respondents, and accordingly rejected the appellants’ claim against them for a declaration of title and damages for trespass.
Counsel for the appellants strongly criticised the evidence upon which the judgment appealed from is founded, but there can, in my view, be no doubt that there was evidence upon which the trial Judge could properly reach the conclusions he did.
In these circumstances I am of the opinion that this appeal must be dismissed with costs.
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VERITY, C. J.
I concur.
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COUSSEY, J. A.
I concur.
Appeal dismissed.