GOLD V. OSASEREN

• Pages: 105-113

GOLD V. OSASEREN

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105

GOLD V. OSASEREN

5

ATITI GOLD

V

10 BEATRICE OSASEREN

SUPREME COURT OF NIGERIA

COKER,

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J.S.C.

UDOMA,

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J.S.C.

15 FATAI-WILLIAMS, J.S.C.

3rd April, 1970

APPELLANT

RESPONDENT

SUIT NO. SC 362/1967

Land Law - Declaration - Title to land - Judge on appeal re- hearing a case

- Judge consulting and making use of evidence which was on the record

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before him though not given during the re-hearing by him - Whether proper

- Customary Courts Law W.N. s.53.

ISSUE:

1. Is it proper for a Judge on appeal rehearing a case to make use of evidence

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which is on record before him though not given during the rehearing by him?

FACTS:

The plaintiff's claim against the defendant was for a declaration of title to land

before customary court Grade B1 which found in her favour. The defendant then

appealed to customary court Grade A. The President allowed the defendant's ap-

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peal and in the course of his judgment, evaluated the evidence which the custom-

ary court Grade B did not evaluate, and placed probative value on the testimonies

of witnesses who did not appear before him. Against this judgment, the plaintiff

appealed to the High Court and the Chief Justice ordered that the case be reheard

on the whole by himself. The Chief Justice however, made use of evidence which

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was on record before him even though not given during the rehearing by him. He

dismissed the plaintiff's appeal with costs, and dismissed her case. The plaintiff

further appealed to the Supreme Court.

HELD:

1.

Except with respect to retrial or uncontroverted matters there is no justification

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for a Judge on appeal who is rehearing the case to refer to the earlier evidence

of witnesses who are testifying again before him except such portions of their

earlier evidence as have been put to the witnesses concerned according to

law.

2.

In this case, the Chief Justice covered not only evidence given before him on

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the rehearing but also evidence given in the Customary Court Grade B.1. and

in particular the evidence of one Humphrey Bazuaye who did not give evidence

before him and so he was not in a position to ascribe any probative value to

his evidence.

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CASES REFERRED TO IN JUDGMENT:

1.

Akaigbe v. ldama

(1964) 1 All N.L.R. 322.

2.

Craig v. Craig

(1967) N.M.L.R.62.

Chief Williams,

for the Appellant.