IN THE SUPREME COURT OF NIGERIA
On Friday, the 10th day of March, 1978
Before Their Lordships
ATANDA FATAYI-WILLIAMS….. Justice, Supreme Court
MOHAMMED BELLO….. Justice, Supreme Court
ANDREWS O. OBASEKI….. Justice, Supreme Court
(ODOFIN OF IKORO) & 3 ORS
HIS HIGHNESS JOSEPH DADA
(The Olojaoke of Okemesi) & 3 Ors
The appeal, therefore, succeeds and it is allowed.
1. EVIDENCE – COURT – Duty of Court – Whether to formulate evidence for any party before it
Per FATAYI-WILLIAMS, J.S.C. at P. 14, Para. B.
2. LEGAL MAXIMS – “Res Inter Alios Acta” – Nature, Meaning and operation of
Per FATAYI-WILLIAMS, J.S.C. at P. 13, Para. G.
In proceedings in Suit No. AK/45/62 commenced in the High Court of the former Western Nigeria sitting at Akure, the plaintiffs and three others (now appellants) claimed against the defendants and three others (now respondents):-
(1) the sum of 500pounds being special and general damages for trespass committed on the piece of land at Ikoro Gero, Ondo Province, Western Nigeria sometime in August 1961 belonging to and in possession of the plaintiffs;
(2) an injunction restraining the Defendants from entering the said land and committing further acts of trespass.
In their amended Statement of Claim, the first plaintiff (the Odofin of Ikoro) averred that he is a subordinate Chief to the Onikoro of Ikoro who is also subordinate to the Ajero of Ijero in Ekiti Division. With respect to the land in dispute he averred in paragraphs 11 to 22 of the amended Statement of Claim as follows:-
11. The land in dispute is situate at Kanga Stream near Ajidun Village in Ekiti Division and it is the area edged YELLOW on Plan attached to my original Statement of Claim.
12. The land in dispute which originally formed part of Onikoro of Ikoro’s land (within Ijero District) was granted under native law and custom to Odofin family (Plaintiffs’ ancestor) by Onikoro of Ikoro many many years ago before the Okemesi came to settle in the place known as Okemesi today.
13. Every member of Odofin family who becomes the Odofin of Ikoro succeeds to the land in dispute whenever an Odofin dies.
14. The land in dispute has since the said grant been in the exclusive possession of the Plaintiff’s family who have been exercising all and every act of ownership on it by farming and cultivating the land.
15. The Plaintiffs’ family in further exercise of acts of ownership also granted portions of the land in dispute to some Okemesi farmers who farm on it on payment of annual Ishakole.
16. The Plaintiff became Chief Odofin of Ikoro in 1937 when Chief Abe (the then Odofin of Ikoro) died and continued in exclusive possession of the land in dispute and has continuously used the same for farming and exercising every act of ownership on it.
17. The Defendants are not one of those who were granted farming rights by the Plaintiffs’ family to farm on the land in dispute.
18. Immediately after the commencement of this action certain Okemesi farmers farming on Ikoro land (including the land in dispute) refused to pay their usual annual ishakole and were evicted from their holdings.
19 On the 29th day of October, 1962 the 1st Defendant, some of his chiefs, some of the displaced Okemesi farmers etc., wrote a letter to His Highness the Onikoro admitting the title of Onikoro to land on the eastern side of Oshun River including land in dispute.
20. Sometime in August 1961 the Defendants and their servants or agents unlawfully broke and entered the land in dispute to carry out survey work.
21. The Defendants through their servants or agents wrongfully cut down many cocoa trees, palm tress and other crops planted by the Plaintiff on the land in dispute.
22. When the Defendants were challenged by the Plaintiffs they claimed the land in dispute as their own and as part of Okemesi land.
He also explained how the defendants came to settle near the land in dispute in paragraphs 2 – 10 of the said Statement of Claim as follows:-
2. The 1st Defendant is the Head Chief of Okemesi while the 2nd and 3rd Defendants are his subordinate chiefs, and also natives of Okemesi.
3. The Okemesi people originally came from Imesi Ile near Ilesa and were granted a parcel of land on which they settled many years ago by Ajero of Ijero.
4. The said piece or parcel of land granted to Okemesi people by Ajero of Ijero is situated at Oshun River and bounded on the north western side by Ife Division on the south by Effon district and has River Oshun as its natural boundary with Ijero land.
5. The Okemesi people have no land on the eastern side of Oshun river but some Okemesi farmers were permitted by Ijero people to farm on their land on the eastern side of River Oshun on payment of ishakole.
6. Sometime in 1940, there was an Inter tribal boundary dispute between people of Ijero and people of Okemesi in consequence of which an Inter Tribal Boundary Dispute settlement inquiry was conducted by Assistant District Officer, J. O. Cruddas.
7. The Inter tribal boundary dispute was settled and oshun River was decided as the boundary between Okemesi and Ijero people.
8. The history of the Okemesi people and the record of the Inter tribal boundary dispute settlement referred to in paragraphs 6 and 7 above are contained in the INTELLIGENCE REPORT ON THE OKEMESI DISTRICT in the EKITI DIVISION OF THE ONDO PROVINCE by R. A. VOSPER known as file ED 511 now at the National Archives Ibadan.
9. In 1955 one Shittu Olaitan Adesunmole sued one Baruwa of Okemesi and 3 others in the Ekiti Divisional Native Court of Ijero. Suit No. 20/55 in respect of land on the eastern side of Oshun river and the 1st Defendant intervened or interpleaded and sub-poenaed and relied on the said file ED 511 referred to in paragraph 8 above.
10. The Plaintiff will rely on the said document as estopping the defendants from disputing Oshun River as the boundary of Okemesi land with Ajero and also from raising of title to the land East of Oshun River including the land in dispute.
Meanwhile, in another action commenced in Suit No. AK/61/63, the Ajero of Ijero and the Olukoro of Ikoro for themselves and as representing the chiefs and people of Ikoro-Ijero, claimed from the same defendants (that is, the Okemesi people) declaration of title to a piece of land verged green on Plan No. BK 5926 A tendered in the case and marked Exhibit A. The land claimed by the plaintiffs in the earlier action, that is, in Suit No. AK/45/62. In addition to the claim for declaration of title, the plaintiffs in Suit No. AK/61/63 also asked for:-
(a) declaration that the Okemesi people (the defendants) have forfeited their rights as customary tenants on the land in dispute;
(b) recovery of possession of the said land;
(c) 500pounds as damages for trespass on portion of the land not granted to the said defendants;
(d) an injunction to restrain them from committing further acts of trespass on the said portion.
The two cases were eventually consolidated. Presumably because of the nature of the claims of their overlord (the Ajero) and that of the Olukoro, which incorporated their own claim, the plaintiffs in Suit No. AK/45/62 did not give evidence. Evidence in respect of the two cases along the lines of the pleadings which had been filed and delivered, was given for them by the Ajero and the Olukoro.
With meticulous care, the learned trial Judge in a reserved judgment, summarised the evidence led by the plaintiffs in support of their claims as follows:-
“The Ikoro people are a section of the Ijero community and the Olukoro and his people owe allegiance to the Ajero. The Olukoro is the head of the Ikoro community and the Ajero is the overlord of all Ijero land including the land over which the Olukoro rules.
The Okemesi people came from Imesi Ipole Ilesha District and begged for land from the Ajero and the Alaye of Effon Alaye; the two Obas gave them land on which they settled. The land they then occupied was on the Western side of the Oshun river and did not extend beyond the river.
One Adesunmole is a native of Okemesi, but his mother is a native of Ikoro. When the Okemesi people did not have sufficient land for farming, Adesunmole through the influence of his relationship to Ikoro went to Ikoro to ask for land. He went there with his son Shittu Adesunmole. Adesunmole was granted land for farming at Ajindo by the Ikoro people. Later he was joined by his friend one Baruwa. From then onwards more Okemesi people went to farm on Ikoro people’s land. This was on the eastern side of the Oshun river. These farmers were paying ishakole to Ikoro people.
Then around 1939 the Okemesi people stopped paying ishakole and the Ikoro people reported the matter to the Ajero who took it up with the District Officer. This gave rise to lots of correspondence between the Ajero, the District Officer and the Oloja of Okemesi. The relevant correspondence is contained in Exhibit ‘G’. The relevant pages are 27, 32, 33, 34 and 35. The facts disclosed in these pages in brief are:
(1) That the Assistant District Officer Mr. Cruddas, found that the River Oshun is the boundary between Ijero and Okemesi, but, that “as a result of the smallness of their district a considerable number of Okemesi farmers have been farming over the Oshun River for a very long time”. Mr. Cruddas also found that there was no reason why these Okemesi farmers should not pay ishakole to the Ajero.
(2) That following the A.D.O.’s intervention, the Ajero wrote to the Oloja of Okemesi requesting him to urge his people to pay ishakole.
(3) That the Ajero reported to the D. O. the failure of Okemesi people to pay ishakole.
(4) That the D. O, wrote to advise the Oloja of Okemesi to see to it that the ishakole was paid in “an amicable way”.
(5) That the Olojaoke replied the D. O.’s letter to say that the people concerned told him that they had paid the ishakole.
Following this intervention by Mr. Cruddas only a few of the Okemesi farmers paid the required Ishakole, and so this trouble started.
In support of this traditional evidence, the Olukoro produced and tendered an “Intelligence Report on the Okemesi District” prepared by one R. A. Vosper as Assistant District Officer in 1934. It is Exhibit ‘F’. The relevant paragraphs of the Report are paragraphs 9, 18, 22 and 23. The facts disclosed in this Report briefly are:
(1) That the Okemesi people originally migrated from Imesi Ipole (Ife Division).
(2) That the present people of Okemesi are an off-shoot of Imesi Ipole.
(3) That a hunter named Edemorun who was sent out from the mother town found the present site of Okemesi.
(4) That when Edemorun sent back to his people, one Agodongbo came with 70 people to the new settlement.
(5) That the said Agodongbo was the first Oloja of Okemesi.
(6) That on Agodongbo’s arrival the Alaye of Effon and the Ajero of Ijero sent their representatives and that presents were exchanged.
(7) That although Okemesi people claim to be the original founders of their present site, it is generally recognised that the people of Okemesi did not own the land but were colonists on Ajero and Effon land.
(8) That the Okemesi people are lovers of rural life but that their farmland is somewhat restricted owing to the situation of the district, and that a great part of such land is rented from neighbouring villages and divisions.
(9) That the district is well-watered by the River Oshun which forms the boundary between Okemesi and Ijero and flows south and south-west along the Ijero-Ara boundary.
Finally the plaintiffs tendered a Plan of the Ekiti Division of Ondo Province drawn and reproduced by Federal Surveys, Nigeria, to show the boundary line between Ijero and Okemesi. It is Exhibit ‘K’.
The Okemesi people also testified in their defence, their main contention being that they are the owners of the land in dispute and that they have settled on and have been in occupation of the said land about 692 years ago. They also contended that by virtue of the judgment delivered in Suit No. AK/24/60, in which the present plaintiffs were parties and/or privies, the subject-matter of the present suit is res judicata. They also relied on the plaintiffs laches and acquiescence in respect of their (the defendants) occupation of the said land. Finally, they testified that they have settled on the east and west of the Oshun river and have from time immemorial exercised various acts of ownership on the said land without any leave and/or licence from the plaintiffs or anybody else.
These acts of ownership included farming and the establishment of villages on the land. It is, we think, pertinent to point out that the defendants admitted that the land which is the subject-matter of the claim in Suit No. AK/45/62 is right in the middle of the land in dispute in AK/24/60 which had been pleaded as res judicata. They also admitted that they farmed on part of the lands owned by the plaintiffs but pointed out that those of their people who farmed on that portion paid ishakole (tribute) to their landlords and there had never been any dispute in respect of that portion. Finally, they testified that the letter (Exhibit G) to which we shall refer later, was written by the present Olojaoke of Okemesi to those tenants on Ikoro people’s land and not in respect of the land now in dispute.
In his reserved judgment, the learned trial Judge first considered the defence of res judicata and found the plea could not be sustained. The defendants did not appeal against his decision on that point.
The learned trial Judge then observed, rightly in our view, that the real issue in the present case was whether or not the Oshun River is the boundary between the land of the Okemesi people and the land of the Ikoro-Ijero community. He then proceeded to find as follows:-
I am satisfied from the evidence in this case that the Ajero is lord over all the lands of the Ikoro and Ijero people. The Ajero claims the land up to the Oshun river and evidence was led to show that the Okemesi people who have been farming on the eastern side of Oshun river have done so as tenants of the people of Ajero, usually Ikoro people. In support of their oral evidence that Oshun river forms the boundary, the plaintiffs produced and tendered:
(1) Exhibit ‘F’ with particular reference to paragraph 18.
(2) Exhibit ‘G’ with particular reference to page 27.
(3) Exhibit ‘K’ – A Federal Surveys Map of Ekiti Division.
Exhibit ‘F’ is an Intelligence Report written by one R. A. Vosper, an Assistant District Officer in Ekiti Division in 1934.
Page 27 of Exhibit ‘G’ contains a report by one Mr. Cruddas, an Assistant District Officer in Ekiti in 1940. He wrote the report after having visited the boundary and inspected old records. He was writing the report in his official capacity.
With respect to the evidence as to whether the Oshun river is the boundary or not, the learned trial Judge said:-
“There is one other point I wish to mention about the Oshun river being the boundary.
It is admitted by the defence (See Omikunle’s evidence) and it is also shown on the Defendants’ Plan Exhibit ‘C”, that the boundary between the land of the Ajero and that of the Olojaoke on the South is the Oshun river. Omikunle testified that Okemesi people have a common boundary with Ikoro, and that the boundary consists of a footpath from Okemesi, crossing Oshun river at Idi Ade and going on to Oke Kanga stream. It is not clear why the land of the Ajero coming northwards along the east of Oshun river should suddenly stop at Idi Ade. The footpath described by Omikunle goes first in an easternly direction, then northwards up to Kanga stream which is by the motor road which passes from Ikoro town through the land in dispute to Imesi. On a close study of the Plan, Exhibit ‘C’, I am inclined to prefer the evidence of the Plaintiffs that the land of the Ajero extends northwards all along the east of the Oshun river.
The learned trial Judge then gave judgment for the plaintiffs after finding as follows:-
“Besides the efforts of the Plaintiffs to establish that Oshun river is the boundary between the land of Ijero and the land of the Olojaoke, oral evidence was also led to show that the Okemesi farmers who have been farming on the land east of the Oshun river have been doing so as customary tenants of the Ajero. The Plaintiffs have also supported this oral evidence with Exhibits ‘F’ and ‘G’ to which I have referred above, and Exhibit ‘N’.
I am satisfied from the totality of the evidence before me that the land referred to in Exhibits ‘F’, ‘G’ and ‘N’ is the same land now in dispute; and that the Okemesi people had at one time acknowledged the Ajero as their landlord and paid ishakole to him or to Ikoro people.
I disbelieve and reject the evidence of Omikunle on this point, a point on which he prevaricated a great deal before answering questions. In my view the acts proved by the defence are acts of possession and not necessarily acts of ownership. The case for the Plaintiffs is that when the Defendants crossed over to the east of Oshun river and objection was raised, the defendants started to pay ishakole, and that this action had to commence when they stopped paying ishakole and started claiming the land as their own. If they had been tenants on the land, naturally the Defendants would be in possession, and in my view all the acts proved before me are consistent with possession only and not with ownership.
As for the contention that the plaintiffs have not proved acts of ownerships, the plaintiffs have led evidence which I believe that the Okemesi people had once acknowledged the Plaintiffs as their landlord and had paid ishakole to them. This is a positive act of ownership which the Defendants should not have attempted to challenge.
On the traditional evidence led by both parties learned trial Judge declared:-
“Finally on the traditional evidence I am satisfied that the Okemesi people originally had no land near Oshun river, that they migrated from Imesi Ipole and settled on land West of the Oshun river, given to them by the Ajero and the Alaye. As I said earlier it is not disputed that the Ijero-Ikoro people had been on the east of Oshun River before the Okemesi migrants came around. It is of no consequence, therefore as to how long ago they settled east of the Oshun river. I am satisfied also from the evidence before me that not having sufficient land to farm on, the Okemesi people decided to cross over to the east of the Oshun river. I do not believed that they had been farming east of the river as of right.
I prefer the traditional evidence given by the plaintiffs to that given by the defendants and I accept it. The oral evidence adduced by Plaintiffs is, in my view, adequately supported by Exhibits ‘F’, ‘G’, ‘K’ and ‘N’ and they have also given greater weight in my mind to the Plaintiffs’ evidence .
I shall therefore enter judgment for the Plaintiffs against the Defendants for a declaration of title to the land verged green in Exhibit ‘A’. (The underlining is ours).
With respect to the other claims of the plaintiffs, the learned trial Judge declared that the defendants have forfeited their rights as customary tenants on the land granted to them as customary tenants and lying east of the Oshun River and particularly verged yellow on the plan Exhibit ‘A’. He dismissed the claim for damages for trespass which he found to have been abandoned. The learned trial Judge, however, refused the claim of possession on the ground that the defendants have been farming on the land in dispute for a considerable length of time.
He nevertheless, ordered, in lieu of forfeiture, that the defendants should pay to the plaintiffs annual tribute of 500pounds and also a penalty of 500pounds for denying the title of their landlords.
Being dissatisfied with the judgment, the defendants (that is, the Okemesi people) appealed to the Western State Court of Appeal. For the sake of brevity and since the court has ceased to exist, we will hereinafter refer to it simply as the Court of Appeal.
One of the grounds of appeal argued before the Court of Appeal and the only ground on which the appeal was allowed and a retrial ordered by a majority of the members of the court reads:-
“The learned trial Judge erred in law in basing his judgment on extraneous matters, that is to say Exhibits F and G.(Intelligence Reports) which are res inter alios and thereby came to a wrong conclusion”
In a reserved judgment, the Court of Appeal referred in detail to the contents of Exhibits F and G. In view of the findings of the court on the validity of their admissibility, we set out hereunder the parts or portions of the exhibits which the court highlighted in the judgment. It reads:-
“Before making our observations on the submissions of both counsel we wish to dilate on the contents of Exhibits F and G which form the gravamen of the 6th ground of appeal. Both Exhibits F and G were certified true copies by the Director of National Archives.
Exhibit ‘F’ is styled “An Intelligence Report on the Oke-mesi District in the Ekiti Division of the Ondo Province”. It was prepared on 29th September 1934 by one Mr. R. A. Vosper a former Assistant District Officer. In its judgment, the court below considered paragraphs 9, 18, 22, 23 and 24 of Exhibit F. Those paragraphs read as follows:-
80. The Okemesi people are exception to the peaceful and law abiding communities found in the Ekiti Division. They are lovers of rural life but their farm land is somewhat restricted owing to the situation of the district, and a great part of such land is rented from neighbouring villages and divisions. They are not over fond of litigation. They show a real interest in local politics and their local administration. They have little ambition, they do not intrigue and strive for power over land which does not belong to them.
They are content to be controlled by their chiefs who attain their position by hereditary claims and not by accumulating wealth. The family forms the closest bond of union. Land is family land, titles are family titles.
18. The district is well watered by the River Oshun which forms the boundary between Okemesi and Ijero and flows south and south-west along the Ijero-Ara boundary. There is no lack of drinking water anywhere during the dry season.
22. The people of Okemesi lay claim to a descent from the mythical cradle of Ife. They originally settled at Imesi Ipole (Ife Division) and the present people of Okemesi are an off-shoot of Imesi Ipole – Ipole means homestead. A hunter named Edemorun was sent out from the mother town and he found the present site of Okemesi and he sent back to his people, and one Agodongbo came with “70 people and one dog”. Agodongbo was the first Oloja-Oke. On his arrival the Alaye of Effon and the Ajero of Ijero sent their representative the Obaloja with a gift of a sheep. Presents were duly exchanged.
23. Okemesi claim to be the original founders of their present site but it generally recognised that the people of Okemesi did not own the land but were colonists on Ajero and Effon land.
24. No claim is made in respect of Imesi-Ipole who are now said to be under the Owa of Ilesha. There is no crowned Chief in Ipole today. The reason given for the secession from Imesi Ipole is, that the then Oloja of Imesi Ipole quarrelled with the then Owa of Ilesha and decided to migrate as soon as possible, leaving behind a few old men and women who were either unable or declined to follow Agodongbo.
Exhibit ‘G’ is a Provincial Administration File No. E.D. 511 of the Ekiti Administrative Division. It contains a number of letters or correspondence. The court below considered pages 26, 27, 32-38 of Exhibit G which are letters of correspondence between the District Officer, the Ajero of Ijero and the Oloja of Okemesi regarding the questions of (i) Okemesi-Ijero boundary and (ii) the payment of ishakole by certain Okemesi farmers to their Ijero landlord. As an illustration of the contents of Ex. G we set out as follows its pages 26-27:-
-No. E. D. 511/27
Ado-Ekiti, 4th July, 1940
1. The Ajero of Ijero
2. The Oloja of Okemesi.
My Good Friend,
Boundary Dispute between Ijero
I forward herewith a copy of the observation made by the Assistant District Officer, Mr. J. M. Cruddas in connection with the above boundary dispute.
2. Please acknowledge receipt.
District Officer, Ekiti Division-
‘”This boundary was visited a second time on June 7th and various farms were inspected with representatives of both sides.
2. As a result of information acquired during these visits and also after inspection of old records in the District Office, I have no doubt in my mind that the River Oshun has always been the boundary between Ijero and Okemesi.
But as a result of the smallness of their district a considerable number of Okemesi farmers have been farming over the Oshun for a very long time.
3. The Ajero has no desire to ask these farmers to quit their farms (and in any case he could not do so), provided they recognise the land is his and pay ishakole yearly.
4. The Okemesi people farmers state they have not been paying ishakole in the past and in consequence are unwilling to do so now. Certain of the farmers in the land in dispute have however, been paying and there seems to be no reason why they should not all pay.
5. I suggest that the Olojaoke makes an agreement with the Ajero in the form of an agreement already existing between Mr. D. I. Ayeni, the Ado Native Court Clerk, who has a farm in the area, to pay a certain amount of ishakole yearly on behalf of all farmers in the area in dispute. This will then relieve over 100 farmers of the necessity of bringing ishakole to the Ajero yearly. Instead they would take their contribution to the Olojaoke.
6. Finally if Okemesi people are contemplating an action in the court, I would strongly advise them not to adopt such a course as in my opinion they have not good claims to the land.
J. M. Cruddas
A. D. O.
The court below admitted Exhibits F and G in evidence pursuant to Section 38 of the Evidence Act which provides:-
“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.”
Thereafter, the Court of Appeal allowed the appeal and ordered a retrial before another judge after observing as follows:-
“We agree with the submissions of Alhaji Babalakin that Exhibits F and G taken as a whole constitute res inter alios acta because the contents of those two exhibits were not made on oath and the makers of them (particularly Mr. R. A. Vosper) were not called as witnesses to be subjected to cross-examination during the trial of the case in hand. The gist of the maxim “res inter alios acta” is that objection is raised to a piece of evidence as hearsay on the ground that the particular statement was made or given without oath and without any opportunity to cross-examine the maker of the statement by the party prejudicially affected by such hearsay evidence – See paragraph 647 of Phipson on Evidence, 11th edition at page 278.
It is not our duty to speculate on whether or not Exhibits F and G could have been admissible under other sections of the Evidence Act apart from Section 38; nor do we think it is proper for us to “x-ray” each of the individual letters or correspondence in Ex. G in order to find out which of them is admissible or which is inadmissible under the various sections of the Evidence Act or which of them constitutes estoppel on the part of the defendants. The parties fought the admission of Exhibits F and G solely on the basis of Section 38 of the Evidence Act and that section is what this court and the court below must look at in determining whether or not Exhibits F and G are admissible.
It is not the duty of any court to formulate evidence for any of the parties before it. The duty of a court is to adjudicate i.e. to reach a decision or make an order applying the appropriate law after ascertaining the issues and the facts. It is trite law to say that a document may be admissible for one purpose and inadmissible for another purpose under the law. Admissibility of evidence is entirely a question of law and must be determined by consideration of a particular provision or provisions of the law. Section 226(1) of the Evidence Act provides:
“The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.”
In Delesolu v. Latunde (1973) 3 WSCA 170 this court disapproved of the practice whereby the contents of a book of history by a Dr. Barbara Lloyd was used by a trial court to discredit the evidence of the case for the defence in a civil case involving questions of customary title to land and injunction.
In reading the judgment of the learned trial judge in the case in hand we are left in no doubt at all that he, among other things, heavily relied on Exhibits F and G in preferring the “traditional history”of the Plaintiffs to that of the Defendants as a result of which preference he gave judgment for the Plaintiffs.
As we cannot say what the judgment would have been if Exhibits F and G had not been admitted under Section 38 of the Evidence Act, we hereby allow this appeal. We accordingly hereby set aside the judgment of Odumosu, J., delivered in Ekiti High Court together with the penalty and costs awarded therein. We order that this case be sent back to the High Court Ado-Ekiti to be retried by another judge.
Both sides were dissatisfied with the judgment and have now appealed further to this court. In short, the complaint of the defendants/respondents (Okemesi people) is that the Western State Court of Appeal should have dismissed the plaintiffs/appellants claim (as was done in the dissenting judgment) after allowing the appeal instead of sending the case back to the Ado-Ekiti High Court for retrial. The plaintiffs/appellants on the other hand, complained that the court was in error in allowing the appeal on the sole ground that Exhibits F and G were wrongly admitted.
In the course of his argument before this court, Chief Williams, who appeared for the plaintiffs/appellants submitted that since there was no objection by the defendants to the admission of the two documents (Exhibits F and G) when they were tendered in evidence before the learned trial Judge, the Court of Appeal should not have allowed the defendants/respondents to raise the issue as to their admissibility on appeal and then base their decision on that issue. In support of this submission we were referred to two cases, namely – Okeke v. Obidife (1965) NMLR 113 at page 115 and Thanni v. Saibu (1977) 2 S.C. 89 at page 112-113. Learned counsel then submitted that the Intelligence report (Exhibit F) and the reports and letters written by headchiefs of the two communities to the Assistant District Office, and to themselves with copies in some cases to the Assistant District Officer, were public documents and that since their contents were relevant to the matters in issue, they were rightly admitted by learned trial Judge. Chief Williams further observed that quite apart from the documents (Exhibits F and G) there was also the Federal Surveys Plan of Ekiti Division (Exhibit K) which shows that the Oshun river is the boundary between the land of the plaintiffs/appellants and that of the defendants/respondents.
He also referred us to another letter (Exhibit N) written by the Headchief of the defendants/respondents to the Headchief of the plaintiffs/appellants. He then submitted that although these two documents clearly supported the claims of the plaintiffs/appellants and the traditional evidence adduced by them in support, the Court of Appeal made no reference to them although it is clear from the record that the learned trial Judge relied heavily on these documents as well.
Finally, Chief Williams contended that in view of the overwhelming evidence, both oral and documentary, which the learned trial Judge considered in great detail before finding for the plaintiffs/appellants, the Court of Appeal should not have allowed the appeal and set aside the judgment solely on the alleged wrongful admission of the documents (Exhibits F and G), particularly as there was no objection to their admission at the trial.
In his reply, Mr. Lardner, who appeared for the defendants/respondents, conceded that the Court of Appeal, in coming to the decision to allow the appeal, did not consider the other two documents (Exhibits K and N). He also conceded that if these two documents were held to refer to the land in dispute their contents would be damaging evidence indeed. He however, submitted that they did not refer to the land in dispute. When it was pointed out to him that the learned trial Judge found that they did he replied that he (the Judge) was in error in doing so.
Learned counsel then contended that the two documents (Exhibits F and G) did not comply with the requirements of Section 38 of the Evidence Act and that the Court of Appeal was right in holding that they were wrongly admitted in evidence under that section of the Evidence Act.
In support of the cross-appeal filed by the defendants/respondents, Mr. Lardner submitted that if the documents were excluded as the Court of Appeal had done, that meant that the plaintiffs/appellants have not proved what they had claimed. In that case, the plaintiffs/appellants claims should have been dismissed instead of being sent back to the court below for retrial. He thereupon submitted that the Court of Appeal was in error in ordering a retrial.
Before examining the complaints of learned counsel for the plaintiffs/appellants we would like to point out that if a document, (tendered in evidence in a civil case and admitted without objection), is clearly admissible under the provisions of a particular written law but is admitted by a trial Judge wrongly under the provisions of another written law, it will be grossly unjust for a Court of Appeal to hold, in an appeal against the judgment of the lower court which admitted the document, that the document has been wrongly admitted and to allow the appeal on that ground. By doing so, that Court of Appeal will be denying the party which tendered the document in the court below substantial justice based on a mere technicality.
Moreover, in Okeke v. Obidife (1965) NMLR 113, where an appellant complained about the admissibility of a document to which he raised no objection during the trial in the court below, this court observed at page 115 as follows:-
“Secondly, the Appellant submits that the Judge ought not to have treated the statement contained in the police file as admissible evidence, on the ground that the officer to whom it was made was not called as a witness. In a criminal case this would be a valid objection, but in a civil case formal proof of a document can always be waived. One of the first questions which a lawyer instructed for the defence in a running-down case might be expected to ask his client is whether he had made any statement about the accident and it would have been open to the defence to ask for discovery of any documents on which the Plaintiff intended to rely.
In our view the Appellant must be treated as having waived any objection to the statement , though we would add that the correct course would have been for the witness producing the file to draw attention to the statement, which appears to have been the only thing in the file which was relevant evidence in the case.”
(The underlining is ours).
The above decision was referred to by us with approval in Thanni v. Saibu (1977) 2 S.C. 89 at page 112-113.
In view of what we have said above, we do not think it was right and proper for the justices of the Court of Appeal to have allowed the issue of the admissibility of the Exhibits (F and G) to be raised and argued on appeal. However, since the point had been taken and adjudicated upon, we will proceed to consider whether their decision on it is valid or not.
In determining whether the Court of Appeal was right in holding that the Intelligence Report (Exhibit F) and the file of correspondence (Exhibit ‘G’) were wrongly admitted in evidence by the learned trial Judge, we have considered it necessary to have a close look at the provisions of Section 38 of the Evidence Act under which the documents were admitted. The relevant part of the section reads:
“38. An entry in any public or other official …………………. record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty ……………. is itself a relevant fact.”
There can be no doubt that Exhibit ‘F’ an Intelligence Report compiled in 1934 by one Mr. R. A Vosper, an Assistant District Officer in Ekiti Division at the material time, is an official record. The contents are therefore, entries in an official record. The same applies to page 27 of Exhibit ‘G’ which contains a report made in 1940 by one Mr. Cruddas, another Assistant District Officer in Ekiti Division; Exhibit G also contains correspondence exchanged by the headchiefs of the communities concerned, copies of which were sent to the Assistant District Officer, and the official replies to these letters.
However, since both Mr. Vosper and Mr. Cruddas were members of the public service of Nigeria at the time they compiled their report, they are both public servants within the meaning of Section 38 of the Evidence Act. (See also the definition of ‘public officer’ in Section 18(1) of the Interpretation Act (No. 1. of 1964).
It is also manifest that the reports and the correspondence, which contain relevant facts which are in issue in the case in hand were made by the two public servants in the course of their official duties at a time when no litigation was pending.
Presumably, that is how the reports and the letters found their way into the National Archives from where the certified copies tendered in evidence were obtained. It, therefore, follows that the documents are in themselves relevant facts. If they are, then they are admissible in evidence by virtue of the provisions of Section 6 of the Evidence Act so long as the facts do not appear to be too remote. In this connection, we would refer to the decision of the West African Court of Appeal in Onyeanwusi v. Okpakpara 14 WACA 311, where that court held that an entry in the minutes book of the Aguata Native Authority in which was recorded a decision, relevant to the facts in issue and made at a meeting of the Authority, was rightly admitted in evidence under Section 38 of the Evidence Act. It only remains for us to add that the admissibility of Exhibits F and G in the present case is on much stronger footing.
Quite apart from the fact that the two documents are admissible under Sections 6 and 38 of the Evidence Act, it is our view that they are also admissible under the provisions of the Public Archives Act (Cap. 163, Laws of the Federation of Nigeria). Admittedly, the attention of the Court of Appeal was not drawn to the provisions of that Act which are relevant to the case in hand. This omission does not, however, affect the relevancy of this Act to the case in hand. Our reasons for this view are these. It is common ground that the two documents (Exhibits F and G) were at all material times in the National Archives of Nigeria.
It was in fact produced in evidence from there. It is therefore, pertinent to refer to Section 4 under which they were acquired by the Director of the National Archives. The section reads:-
4.(1) The Director and any other officer of the Department of Federal Archives authorised by him shall have power to examine any archives which are in the custody of any public office, and shall advise such office as to the care, custody and control thereof; Provided that this subsection shall not empower the director, or an officer authorised by him, to examine any archives relating to matters which, by statute or otherwise, are forbidden to be communicated to him.
(2) The archives which are in the custody of any public office shall be transferred periodically to the National Archives in accordance with regulations made under the provisions of this Ordinance.” (The underlining is ours).
Furthermore, Section 6(2) of Cap. 163 states that the Director of Federal Archives shall make available for the use of the public all information in records and other materials in the National Archives by furnishing them such records or other materials or copies thereof. That the documents, Exhibits F and G are public records is made abundantly clear by the definition of the word “archives” in Section 2 of the Act. In that section the word “archives” is defined as –
“All public records, documents and other historical matter of every kind, nature and description which are in the custody of any public office or which may after the commencement of this Act be transferred to or acquired by the National Archives of Nigeria.”
As to the admissibility of archives in judicial proceedings, we refer to the provisions of Section 7 of Cap. 163 which reads:-
“The Director shall have an official seal which shall be judicially noticed. When any copy or reproduction of a document in the custody of the Director is certified to be a true copy by the Director or by an officer of the Department of Federal Archives authorised in that behalf and is authenticated by such official seal, such copy or reproduction shall be admitted in evidence as proof of the contents of the original document as if it were the original document.”
It only remains for us to add, at this juncture, that the documents (Exhibits F and G) were duly certified by an officer of the National Archives and authenticated by the official seal of the Director of Federal Archives. It seems to us, therefore, that quite apart from the provisions of Section 38 of the Evidence Act (Cap 62), the two documents (Exhibits F and G) are also admissible in evidence as public records by virtue of the provisions of Section 7 of the Public Archives Act. We wish to point out, however, that although the two Exhibits (F and G) are admissible under either the Evidence Act or the Public Archives Act, the weight to be attached to their contents is another matter.
Nevertheless, it cannot be gainsaid that the learned trial Judge attached much weight to them. Be that as it may, and bearing in mind the other evidence, both oral and documentary such as the Federal Surveys map of the area (Exhibit K) and the letter dated 29th October, 1962 written by the Olojaoke (the defendants’ headchief) to the Olukoro of Ikoro (the headchief of the Ikoro people) (Exhibit N), which were also considered in detail by him, it seems to us that he was justified in doing so.
For these reasons, we think the justices of the Court of Appeal were in error in holding as they did that the documents (Exhibits F and G) were wrongly admitted in evidence by the learned trial Judge.
The appeal, therefore, succeeds and it is allowed. The judgment of the former Western State Court of Appeal including the order made as to costs, is hereby set aside. Instead, we restore and affirm the judgment of the learned trial Judge delivered in the High Court of the former Western State of Nigeria at Ado Ekiti in the two consolidated actions on 20th December, 1968.
We also affirm all the consequential orders, including the order as to costs, made by him pursuant to that judgment. Although we have some reservations about the propriety of the order of the learned trial Judge quantifying, of his own volition and in cash, the amount of tribute payable by the defendants/respondents when there was no evidence of its form or value, we have no alternative but to confirm the order as there has been no appeal against it. Because of our decision on the main appeal the order of retrial complained of in the cross-appeal has ceased to exist.
There is, therefore no point in considering the arguments put forward in respect of the cross-appeal which is accordingly struck out. Finally, the plaintiffs/appellants are awarded costs of this appeal assessed in the lower court at N100.00 and in this court at N290.00.
Chief F. R. A. Williams, SAN, (with him, O. Esan and J. A. Kester)…..For Appellant
Mr. H. A. Lardner, (with him, C. O. Oye)…..For Respondent