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SUIT NO. FSC 349/1963

7TH JULY, 1965

3PLR/1965/4 (SC)










INTERPRETATION OF STATUTE – Legislation – Western Nigeria – Customary Courts Law (Laws of Western Nigeria cap. 31); s.4, s.7(3), s.55, s.72

PRACTICE AND PROCEDURE – Courts – Jurisdiction – Canon and test – Nullity and irregularity distinguished – Customary Courts – Variations in bench. – Effect

PRACTICE AND PROCEDURE – Nullity and irregularity distinguished



Olu. Ayoola and Miss Adebule for the Appellants.

Adefuye for the Respondents.


ADEMOLA, C.J.N. (Delivering the Judgment of the Court):- The plaintiffs who are respondents in this court, claim against the defendants In the Ake Grade A Court, Abeokuta, as follows:


“Declaration that the plaintiffs’ late maternal grandfather Operun was the owner of a house and landed property situate, lying and being at Operun’s compound, Oka Ago-Owu, Abeokuta, which had been given by the list defendant to the 2nd defendant who had been collecting stones on the said land to build a house thereon about a year ago.


£t 0 damages for trespass committed by the defendants on the said plaintiffs’ land by granting it to each other and collecting stones to build thereon about a year ago.”


The action was feed early in January 1958. It first came up for hearing in the Grade A Court on the 21 St January, 1958 when the court ordered a plan of the land in dispute to be made. The tribunal which sat on that date consisted of Chief Ilori as President and two members of the court, namely Chief Odesanya and Chief Belogun. Under the Warrant creating the court and by virtue of the Native Courts Ordinance, 1933, the two were members of the court with the President. At a subsequent hearing on the 28th day of May, 1958, the same tribunal took the evidence of Mr Litan, a surveyor who had surveyed the land. His evidence was merely formal and he put the plan in evidence; it was marked Exh. X by the court. The notes made by the court read as follows:


“Both plaintiffs and the defendants agree with the plan. Case adjourned till 3.7.58.”


Before the next hearing, and indeed on or about the 1st July, 1958, the Customary Court law came into operation at Abeokuta, and took the place of the Nafive Courts Ordinance. On the 28th August, 1958 the case was called before Mr Akinola Cole, Acting President, Grade A Customary Court, sitting alone. Counsel now appeared in the case; the defendants counsel raised a plea of “res judicata” which, after hearing arguments on both sides, the President rejected. The case was then adjourned. When it was called again on the 1st October, 1958, Mr Akinola Cole appeared to have been honoured and had by then received the title of a chief. He ordered that pleadings should be filed. One or two adjournments followed and the case was again listed before Chief Ilori, the President of the court. After a series of adjournments on the 27th October, 1959, Chief Ilori the President, with Chief Oliyide and Chief Lawale, both assessors, took further evidence in the case, and continued the hearing until judgment. On the 20th April, 1960, judgment was delivered by Chief Ilori who dismissed the plaintiffs’ claim with costs.


There are two points to which attention should be called. First, sec. 72(1) of the Customary Court Law took over all Native Courts established under the Native Courts Ordinance, and all members of courts under the Native Courts Ordinance are by virtue of sec. 72(2) of the Customary Courts Law deemed to be members of the Customary Courts. Secondly, sections 4 and 7(3) creating assessors provide that they are no longer members of the court. They merely sit in advisory capacities.


Now, the plaintiffs whose claims were dismissed appealed to the High Court. The appeal came up before Beckley J., In the High Court of the Abeokuta Judicial Division in Western Nigeria. Two grounds of appeal were argued before the learned judge, but for our purpose the 1st ground of appeal is relevant as the learned judge of appeal did not consider the second ground of appeal which deals with the facts of the case. The first ground, with which we are concerned in this appeal, is as follows:


‘That the whole proceedings were a nullity in that there was not only variation of the panel of members of the court but also the Presidents as well.”


After reviewing the facts relating to the changes in the personnel of the court, the learned judge of appeal in the penultimate paragraph of his judgment said:


“I have taken into consideration the provision of section 55 of the Customary Courts Law and I am of the view that this irregularity is now merely a matter of technicality but one which goes to the root of the whole case. The newly constituted court presided over by Chief Ilori and the two assessors had no jurisdiction to continue the case and to give decision in the case.”


He then allowed the appeal, and “quashed” the judgment and proceedings of the Customary Court.


The defendants have complained about this judgment and have appealed to this court on the ground that the decision of the Grade A Customary Court is not null and void.


We are in no doubt about the correctness of what the learned appeal judge said in his judgment that there are abundant decisions in the High Court and in the West African Court of Appeal on the point that where a court is differently constituted during the hearing of a case, or on various occasions when it met, or where one member did not hear the whole evidence, the effect on the proceedings is to render them null and void. The learned judge obviously had in mind, among others the following cases –


Egba NA v. Adeyanju (1936) 13 N.LR. 77:

Tawiah Ill v. Ewudzi 3 W.A.C.A. 52:

Otwiwa v. Kwaseko 3 W.A.C.A. 230:

Damoah v. Taibil 12 W.A.C.A. 167:

Runka v. Katsina N.A. 13 W.A.C.A. 98:


In the first of these cases, in which the defendant’s witnesses were not heard by two members of the court, the principle was enunciated that a judgment could not be allowed to stand which was given by judges who had not heard all the evidence; in the other four cases, the appeal court held expressly that the proceedings were a nullity on that account. There seems to be a confusion of thought between jurisdiction and regularity: between the competence of the court to hear the case and the propriety of a bench who had not heard all the evidence adjudicating on the case.


This matter was aptly put in a judgment of this court in the appeal Gabriel Medukolu v. Johnson Nkemd1lim FSC.344/1960 (unreported) decided on the 12th day of November, 1962, where Bairamian, F.J., put it thus:


“a court is competent when –


(1)    It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and


(2)    the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and


(3)    the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.”


He continues:


“Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.


If the court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity; in the conduct of the trial;….”


The complaint against a hearing that was not always before the same bench does not pertain to any matter that goes to the jurisdiction of the court. It is at bottom a complaint that the judgment cannot be satisfactory on the ground that as the persons who gave it had not seen and heard all the witnesses, they could not appraise the evidence as a whole and decide the facts properly. Thus it is a complaint on the soundness of the judgment itself, and not a complaint that is extrinsic of the adjudication, which is the test to apply when considering a submission on jurisdiction. We are therefore of the opinion that variations in the bench do not make the judgment a nullity; they may make it unsatisfactory, and it may have to be set aside for this reason, but whether they do or not depends on the particular circumstances of the case.


We have now to consider whether the proceedings in the Native or Customary Court were irregular or improper in a manner or degree which makes it necessary to set aside the judgment; and the question here is whether the changes in the constitution of the bench affected the conduct of the trial itself and the soundness of the adjudication – see Madukolu v. Nkemdilim (supra).


Turning to the appeal before us, we are satisfied that when Chief Ilori first heard the case on the 25th May, 1958 in Ake Grade A Native Court with two members of the court the evidence of Mr Litan, the surveyor, which was taken was merely formal and the plan which the witness put in evidence was agreed upon by both sides. The ruling on res judicata against the defendants, which was made by Mr Akinola Cole, Acting President, on the 28th August, 1958 when he sat on the case had no direct bearing on the issues before the court in the case, and in our view should, for the purpose of this appeal, be ignored. When on the 10th December, 1958 Chief Ilori sat on the case again, it will in our view be correct to say that he continued the proceedings from where he left off. The only question which need be considered now is that whereas the case was heard by Chief Ilori and two members of court at the first sitting, subsequent sittings were presided over by Chief Ilori with two completely new men as assessors. What then is the effect of this on the proceedings?


On the view we have taken of the effect of a piece of formal evidence regarding the plan on the proceedings as a whole, the absence of the two assessors during the hearing of this formal evidence in our view would make no difference to the soundness of the adjudication. Assessors, as we have observed earlier in this judgment, are mere advisers: they have no votes. They were present at the hearing of all the controversial evidence; and Chief Ilori, who had the duty to give the judgment, heard the entire evidence. Thus, no complaint of substance could be made against the conduct of the trial or the propriety and soundness of the adjudication.


In the circumstances, this appeal must be allowed. The judgment of the learned judge of appeal is hereby set aside, and the following order is made:


‘The case is sent back to the High Court to hear the appeal from the Customary Court on its merits. Cost awarded in the two lower courts If paid, should be refunded, and costs will abide the issue in the High Court.”


Costs in this court in favour of the appellants are assessed at 35 guineas.


Appeal allowed.


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