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O. Babalakin – for the Appellant
No representation for the Respondent
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
Civil Action – Practice and Procedure – Nullity – Procedural defect not one extrinsic to the adjudication – Whether decision a nullity
Appeal – Appeals from Customary Courts – Evidence not recorded till another day, but no miscarriage of justice – Defect not fatal to proceedings
Legislation – Customary Courts Law, Section 55 (W.N.) – Customary Court Rules (W.N.) 0.10,r.4.
BAIRAMIAN, J.S.C: (Delivering the Judgment of the Court):
On March, 15, 1963 Duffus J. (in the Western Nigeria High Court appeal case No. I/52A/61) allowed the plaintiff s appeal from the Customary Court of Appeal (which had set aside the judgment in his favour given by the Ibadan No. 1 Grade B Customary Court in Suit No. 82/60 between Limota Moladun and Baderinwa Alike) and the defendant then appealed from the decision of Duffus J. We dismissed the appeal at the hearing on November 20, and now shall give our reasons.
At the trial, after both sides had concluded their evidence, the trial court decided to visit the land in dispute and did so. There the court heard two witnesses and gave the defendant’s representative the opportunity of cross-examining them. The visit was on July 15, 1960, but the note of that evidence is dated July 18, 1960, on which day the parties were present in court. Afterwards the trial court gave judgment for the plaintiff, in which no reference was made to the evidence heard at the inspection of the land.
Now, Order 10 r.4 of the Customary Courts Rules (W.N. Laws of 1959, vol. 2 at p. 87 as amended in 1959) provides that:-
‘The President shall record In the proper record book all oral evidence given before Grade A, Grade B and Appeal Courts; in courts of other grades such record of evidence shall be kept by the President or by the clerk.”
The customary court of appeal was of opinion that as the evidence taken at the inspection was not recorded until another day, the breach of the rule made the proceedings a nullity and section 55 of the Customary Courts Law (vol. 2 at p.58) was not a ‘panacea’ for all ‘ailments.’ Section 55 provides as follows:-
“No proceedings in a customary court and no summons, warrant, process, order or decree issued or made thereby shall be varied or declared void upon appeal solely by reason of any defect in procedure or want of form but every court exercising powers of appeal under this Law shall decide all matters ac-cording to substantial justice without undue regard to technicalities.”
Duffus, J., agreed that there had been a breach of the rule and proceeded to consider the effect of the breach. He noted that the accuracy of the note of the evidence taken at the inspection was not challenged by any party, and went on to say as follows:-
“Apart from this it does appear that the evidence of these two witnesses made no difference to the judgment of the court.
I am of the view, therefore, that this is a case in which the provisions of section 55 of the Customary Courts Law would apply.”
He restored the judgment of the trial court.
In the appeal to the Supreme Court the core of the argument for the defendant was that the rule above cited was mandatory and the breach of it was not a mere irregularity but made the proceedings a nullity. Whilst agreeing that section 55 prevails over the rule, Mr. Babalakin argued that there was a risk that a note of evidence made later might be inaccurate and that might affect the mind of the trial court.
This argument struck us as academic: the true question in our view was, did the evidence In question affect the mind of the trial court? Learned counsel did not argue that it did. That evidence at the inspection did not in fact weigh one way or the other on the dispute.
An analogous situation arises where a judge of a High Court having jurisdiction in the case receives some evidence which he ought to have excluded. Learned counsel conceded that the wrongful reception of some evidence might be ground for complaining that the judge’s decision was unsatisfactory but did not make is a nullity. Likewise here the record of the trial contained some evidence which ought not to be in it: that did not make the decision of the trial court a nullity.
Nullity is the result of incompetence. If, for example, a magistrate, were to decide a claim for £1,000, his decision would be a nullity, and it would not matter that he had conducted the trial well and given a good judgment: the defect is extrinsic to the adjudication, and that is the test to apply in a complaint of nullity. Here there was no suggestion that the customary court of trial had no jurisdiction to hear the case, so its decision was not a nullity; and as the evidence in question did not affect the decision, Duffus J., did well to restore its decision.