KUUSU V. UDO

• Pages: 253-270

253

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NIGERIAN SUPREME COURT CASES

11990] 1 N.S.C.C.

For the above reasons and the fuller reasons given in the lead Ruling of my learned

brother Uwais, J.S.C. which I have had the opportunity of reading in draft, I too agree

with the conclusions reached in the ruling.

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KUUSU V. UDO

10

KPIISHI KUUSU



APPELLANT

V

VANGER UDO



RESPONDENT

SUIT NO. SC. 174/1986

SUPREME COURT OF NIGERIA



15

NNAMANI,



J.S.C.

UWAIS,



J.S.C.

KARI BI-WHYTE,



J.S.C.

BELGORE,



J.S.C.

NNAEMEKA-AGU, J.S.C.



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23rd February, 1990.

Evidence - Area Court - Applicability of Evidence Act Admissibility -Oath taking -

Affirmation - Necessity of in Area courts. - Failure to cross Examine witness - Whether

it amounts to a miscarriage of justice.

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25

Practice and Procedure - Jurisdiction - When raised - Res Judicata - When Pleaded - Effect

of

ISSUES:

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1.

Whether an area court is bound by the provision of s. 179 of the Evidence Act

which requires the taking of Oath or affirmation.

2.

Is it proper in an area court to utilise evidence given by a person who was not

sworn or affirmed.

FACTS:

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This suit started in the Grade II Area Court of Ameradu Benue State, the

respondent/plaintiff claimed against the defendant/appellant for title to a piece of

farm land at ubwage.

Judgment was given for the plaintiff at the Area Court in 1981. The defendant

appealed to the High court of Benue state sitting at Gboko which entered Judgment 40

in his favour on the 18th of March,

1983.

The battle between the parties was far from

over, for the respondent herein appealed against the High Court Judgment to the

court of Appeal. Jos Division. The appeal was allowed on the 3rd February, 1986,

and entered Judgment in favour of the plaintiff (respondent herein).

Dissatisfied with the court of Appeal Judgment, the defendant/appellant has now 45

appealed to the Supreme Court.

HELD:

1.

Section 1 (4) (c) of the Evidence law cap. 40 laws of Northern Nigeria applicable

in Benue State makes provision excepting the use of Evidence law in Judicial

proceedings in any civil cause or matter in or before a native court and in this 50

case Area courts and customary courts were the successors of the old native

court.

2.

There is nothing in the order enjoining the Area Court Qo7 3 Grade II or indeed

any Area Court to follow the provisions of section 179 of the evidence Act or

indeed any section of the Evidence Act. In not taking evidence of elders on oath

or affirmation at the

locus in quo

it has not been shown what native law and

KUUSU V. UDO

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254

custom has been so violated. In the absence of evidence of any such custom,

this is not an assumption that can be made. Consequently, the statements of the

elders at the

locus in quo,

though not taken on oath or a affirmation was evidence

on which the Area court was entitled to act.

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3. As to the fact that there was no cross - examination, there was no failure of natural

Justice as the evidence of the elders was taken in the presence of all and there

was ample opportunity to correct or contradict any sides testimony considered

by either side's prejudicial to its case.

4. The case of

Sanusi Lala v. Morakinyo

is definitely apposite. The practice and

10

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procedure of Native courts do not agree with those of High Courts which adopt

the English procedure, but such practice and procedure should not be

condemned on that account unless they are found prejudicial to a fair trial.

5. Evidence law is based on the peculiar English common law concepts of Judicial

procedure which is invariably completely alien to the notions of Justice of the

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Judges of Area Courts who are generally not learned in English common law but

are presumed knowledgeable in laws and customs of the area in which they

administer Justice. Hence the general inapplicability of the Evidence law unless

expressly provided to be applicable.

6. The provisions of the native law and custom applicable to the civil cause or matter

20

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will prevail in any case where there is a conflict with the provision of any other

law.

7. The witnesses in the instant case were given equal opportunity to testify in respect

of the land in dispute. Absence of cross - examination of the witnesses is not a

fatal defect.

25

[As to

whether Area courts are not bound by section 179 of the Evidence law on

oath taking,

Chukwuogor v. Obuora

[1987] N.S.C.C. [Vol. 18 pt.11] 1063.

CASES REFERRED TO IN JUDGMENT:

30



1.

Ogunnaike v. Ojayemi

(1987) 1 N.W.L.R. part 53 and 760.

2.

Amodu Latunde and Or. v. Bello A.D Lajiufin

(1989) 5 S.C.N.J. 59, 65-66.

3.

Edusei v. Denkya

12 W.A.C.A. 121.

4.

Badoo and Ors. v. Ohene Kwe;:hi Ampung and Ors.

12 W.A.C.A. 439.

5.

Sanusi Lala v. Morakinyo

(1958) W.R.M.L.R. 199.

35

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6.

Queen v. The Lieutenant-Governor Eastern Nigeria Ex parte Okafor Chiagbana

(1957) 2 F.S.C. 46.

7.

S.O. Adedeji v. Police Service Commission

(1967) All N.L.R. 67, 74-75.

8.

Odufuye v. Folake

(1977) 4 S.0 11.

9.

Latunde v. Lajinfin

(1989) 5 S.C.N.J. 59, 65-66.

40



10.

Ogunmade v. Fadayiro

11.Nabhan V. Nabhan

[1967] 1 All V.L.R. 47.

12.

University of lbadan v. Adamolckun

(1967) 1 All N.L.R. 213.

13.Akaigbe v. Idama

(1964) 3 F.S.C. 106.

14.

Yesufu v. Ojo

(1958) 3 F.S.C. 106.

45

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15.

Chiagbana v. The Queen

(1957) S.C.N.L.R. 98.

16.

Seismograph Limited v. Ogbeni

(1976) 4 S.C. 85.

17.

Maji v. Shafi

(1965) N.M.L.R.

33.

18.

Prince Yahaya Adigun and 2 Ors v. Attorney-General of Oyo State and 18 Ors.

(1987) 3 S.C.N.J. 118.

50

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19.

Olalekan v. Commissioner of Police

(1962) 1 All N.L.R. 487 at p. 190.

20.Okuma v. Tsutsu

10 W.A.C.A. 89.

21.0hene Abuaji II v. Oyebu

1 W.A.C.A. 66.

22.

Nwizuk and Ors v. Chief Warribo Eneyok and Ors.

(1953) 14 W.A.C.A.

23.1henacho Nwaneri and Ors. v. Oriuwa and Ors.

(1959) 4 FS.C. 132.

24.

Coker and Anor. v. Sanyaolu

(1976) 9-10 S.C. 203.

25.R. v.

Dogbe

(1947) 12 W.A.C.A. 184.