IBRAHIM MAI ABINKUMI v M. KASIMU ( Lokoja Appeal No. JD/15A/1961) [1961] NGHC 18 (31 August 1961)

**IBRA****H****I****M** **MA****I** **A****BIN****K****UM****I** **(A****P****PEL****L****ANT****)** **_v._** **M.** **KA****SIMU** **(RESPONDENT)** **(****1962)** **N****.N.L.R.** **26** **(1961)** **All** **N.L.R.** **577** **Div****i****si****o****n:** High Court (North) **D****at****e** **o****f** **Judgment:** 31st August, 1961 **C****as****e** **Num****b****er:** Lokoja Appeal No. JD/15A/1961 **Before:** J. A. Smith, S.P. J. J. P. Smith, AG. J. Appeal from Customary Court. The respondent commenced an action against the appellant in the Kwara Customary Court. The action was subsequently transferred to the Provincial Court of Kabba Province. Some witnesses, including one Madam Yartukura did not give evidence before the Provincial Court, and the record of evidence given by her at the Kwara Customary Court was read by the Judges of the Provincial Court and taken into consideration in arriving at their decision. **_HELD_**** _:_** A court is not entitled to consider as evidence before it the record of evidence given before another tribunal by a witness, who is, or could be made, available to give oral testimony. _Ap_ _p_ _e_ _a_ _l_ _a_ _l_ _l_ _o_ _w_ _e_ _d_ _:_ _R_ _et_ _r_ _i_ _a_ _l_ _o_ _r_ _d_ _e_ _r_ _e_ _d_ _._ _Cas_ _e_ _ref_ _e_ _rr_ _e_ _d_ _to_ _:__-_ _C_ _h_ _i_ _e_ _f_ _Y_ _a_ _w_ _Da_ _m_ _o_ _a_ _h_ _v_ _._ _C_ _h_ _ie_ _f_ _Ko_ _f_ _i_ _T_ _ai_ _b_ _i_ _l_ 12 W.A.C.A. 167. APPEAL from Customary Court. _Fajemisin_ for Appellant. Respondent in person. Smith, S.P.J., delivering the Judgment of the court:- This is an appeal from the decision of the Provincial Court of Kabba Province dated 4th January, 1961, in favour of the plaintiff-respondent, M. Kasimu. The plaintiff-respondent claimed ownership of a house at No. 11 Temple Street, Lokoja, and he brought his case in the Kwara Native Court. Some witnesses gave evidence in that court, including Madam Yartukura. While the suit was still part-heard it was transferred by the Resident for hearing and determination from the Kwara Native Court to the Provincial Court. The Provincial Court only heard the oral evidence of the defendant (now appellant) and his witnesses. The allegation of the plaintiff-respondent was that he bought the house from Madam Yartukura; the defence of the defendant-appellant was that he bought the house from Nnamadi, Madam Yartukura's son. The Provincial Court adjourned the hearing of the suit in November for these two persons to be brought before the court as witnesses. Neither of them appeared. They apparently resided in Jos. On 4th January, 1961, the Provincial Court proceeded to Judgment without hearing the evidence of either of these persons. The court was entitled to come to Judgment on such evidence as there was before it without adjourning further for the appearance of Nnamadi or Madam Yartukura. But the Provincial Court should in their Judgment only have considered the oral evidence of witnesses who appeared before them. It is agreed by the parties to the appeal before us that the evidence which Madam Yartukura gave orally in the Kwara Native Court and which was recorded in writing in that court, was read by the judges of the Provincial Court. It is also apparent that the Provincial Court was influenced in its Judgment by what the judges had read of the evidence of Madam Yartukura in the Kwara Native Court. It is a fundamental principle that the same court consisting throughout of the same judges should see and hear all the witnesses who are to give evidence before the court from the beginning to the end of the case. It is not permissible for one court to read the evidence given by a witness before another court and to take that evidence-of witnesses whom it has neither seen nor heard-into account in coming to its decision. We would quote the direction of Harragin, C.J. in Chief _Yaw_ _Damoah_ _v._ _Chief_ _Kofi_ _Taibil_ , 12 W.A.C.A. 167 at 168, where the Native Court, in order to save time and with the consent of the parties read over evidence already taken before different judges:- It is with great regret that we find ourselves obliged still further to prolong this litigation particular y as it is difficult for illiterate people to understand what they will undoubtedly imagine to be the unnecessary technicalities of British justice, but it is a principle from which no Court could ever depart. We are aware that most of the Native Courts appreciate the fact that those giving Judgment must have taken part in the whole trial and in fact from a perusal of the record in this case it is clear that this particular Native Court was well aware of that ruling, but failed to appreciate the difference between having evidence read to them and listening to the oral evidence from witnesses in the box. One of the principal duties of a court of first instance is to form an opinion as to the credibility of witnesses by their demeanour in the box, which is quite impossible if the evidence is read. And lastly, should this procedure be permitted the next development would be that one of the parties would send his evidence already written out and, if there was no objection by the other side, the court would proceed to adjudicate upon the matter and learned Counsel would endeavour to support this procedure by arguing that it was never objected to by the other side. For the same reason we allow the present appeal and order a retrial before the Provincial Court, Kabba Province. By retrial we mean that the Provincial Court must hear the oral evidence of each of the witnesses from the beginning to the end. _Ap_ _p_ _e_ _a_ _l_ _a_ _l_ _l_ _o_ _w_ _e_ _d_ _:_ _R_ _et_ _r_ _i_ _a_ _l_ _o_ _r_ _d_ _e_ _r_ _e_ _d_ _._