Month: March 2021

From time immemorial, dispute is one of the things that has permeated human existence. They are bound to ‘happen’ due to our daily interactions with natural and juristic persons. In law, these disputes could be a breach to perform one’s obligation in contract to the assertion of one’s right in Human Rights, or even inheritance under Succession, etc.

In land matters, most disputes arise to determine the person who possesses the valid ownership of a land. There exist several ways of settling this dispute and Oath-taking under traditional customary arbitration is one of the ways employed by people, especially in the Eastern part of the country.

Oath-taking is a valid process under customary law arbitration and it is one of the methods known to customary law for establishing the truth of a matter. Once it is established that the parties to any case had earlier voluntarily submitted their dispute to traditional arbitration and had accepted its verdict and agreed to be bound by it, provided it is not repugnant to natural justice, equity and good conscience, the courts have always refused to let any parties back out of the decision. See Onyenge &Ors V. Ebere & Ors (2004) LPELR-SC.117/2000.

THE FACTS OF THE CASE
The Respondents, descendants of one Chibunze, are a lineage of Umu-Ofuonye larger family. The Appellants are also members of the said Umu-Ofuonye family.

In 1940, a dispute over a land arose between the Umu-Ofuonye family and Umu-Ogbocha family. The elders intervened and successfully arbitrated in the dispute. The parties submitted to the arbitration and the oath-taking procedure was adopted. The Umu-Ogbocha agreed that if the Umu-Ofuonye family successfully took the traditional oath the land became theirs. The Umu-Ogbocha placed juju on the land. Within the Umu-Ofuonye family, only Chibunze agreed to take the oath as others were afraid.

He eventually took the oath and survived. Thereafter the said Chibunze and his descendants had laid claim to the ownership of the Isi-Ekpe land to the exclusion of other members of the Umu-Ofuonye family (represented by the Appellants herein) who insist that the land remained the joint property of the entire Umu-Ofuonye family.

The rules of the custom of oath-taking in Amansea according to the evidence of the respondents are that if a person removed a juju placed on a disputed land and survives after twelve days, he will barb his hair. If he survives after twenty-one (21) days, he will go to the market to celebrate his survival, and thereafter he will be declared to be the owner of the land in dispute. One man can take oath in Amansea. If one man takes oath and survives the oath, he becomes the owner of the property in respect of which the oath was taken. If the person is supported by his relations the land will become family land or property.

After the evaluation of the evidence adduced by both parties regarding the proof of the ownership of the land in dispute via the customary rules of oath-taking applicable in Amansea, the Trial Court believed the evidence of the respondents which he preferred to that of the appellants. Consequent upon that, declared that the Respondents are entitled to the customary right of occupancy over the land in dispute. Also, the Court of Appeal reaffirmed the Trial’s Court decision. Aggrieved, the appellants furthered appealed to the Supreme Court.

THE DECISION
At the supreme court, the appellants’ case fell through as the Apex Court, in a concurring judgment, upheld the decisions of the Courts below. First off, the court resolved the issue of adducing evidence in proving ownership of land.

It is a trite and quite settled that in a claim for declaration of title of land, the onus is on the plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the defendant. The Appellants, who were defendants in the court of first instance, vehemently argued that there is no custom in the land which states that a family member who defends family land by oath-taking without the support of members of the family automatically becomes the exclusive owner of such family land.

However, they didn’t prove this assertion. This runs contrary to Section 16 (1) and (2) of the Evidence Act, 2011. The court held that ‘Customary Law is a question of fact to be proved by evidence. Indeed, with the firm standing of the plaintiffs/respondents, the burden shifted to the appellants as defendants to dislodge the assertion of the plaintiffs that one man could not take over ownership of family land in a given circumstance such as happened here. Therefore, since the appellants did not cover that lacuna, the position put across by the respondents remained the state of affairs acceptable to the Court.’

On the issue of admissibility of customary oath-taking, the Court, per Mary Peter-Odili (J.S.C) held that: I need to place on record in reiteration that where parties who believe in the efficacy of a juju resort to oath-taking to settle a dispute they are bound by the result and so the common law principles in respect of proof of title to land no longer applies since the proof of ownership of title to land will be based on the rules set out by the traditional arbitration resulting to oath-taking. See also Onyenge &Ors v Ebere & Ors (Supra).

In conclusion, the courts will accord judicial recognition to Oath-taking and admit it as evidence once it is shown that the requirements are fulfilled.

Thank you for reading. See you next week❤.

Generally, there are two kinds of proceedings in the Nigeria Legal System. These are criminal or civil proceedings. These proceedings are mutually exclusive. However, there is a possibility of an action being both a crime and a civil wrong at the same time. For instance, assault, defamation, and false imprisonment are all civil wrongs and crimes by virtue of Sections 252, 373, and 365 of the Criminal Code respectively.

Putting it into a perspective, let us say Mr. A engaged the services of Mr. B to build a house. Due to Mr’s B mischievous nature, he used materials lower in quality in the construction of the house. Upon completion, the house collapsed leading to the death of some persons. In this scenario, Can Mr. B be charged with an offence of Murder and also be liable to pay damages for the breach of his contract with Mr. A?

If this question were to be asked a few years ago, the answer would have been a resounding NO because of the common law rule in Smith v Selwyn (1914) 3 KB 98. This principle of law established in that case was that where a civil wrong is also a crime, prosecution of the criminal aspect must be initiated, or reasons for default of prosecution given, before any action filed by the plaintiff in the civil court can be heard.

However, at this time, the answer will be a welcoming YES because the rule of Smith v Selwyn has become obsolete and no longer applicable in Nigeria. There are cornucopia of statutory provisions and judicial pronouncements which have made the rule inapplicable in Nigeria. The latter is Section 6(6) (b), 17(2) (e), 46(1), and 315 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), Section 8(2) of the Interpretation Act. The rationale behind this is that a person’s right of access to court is guaranteed under the Constitution and the act of non-simultaneous prosecution of a criminal charge and a civil suit runs contrary to it.

Regarding judicial authorities, Justice Niki Tobi (as he then was) in Veritas Insurance Co. Ltd. v. Citi Trust Investments Ltd held that: ‘It appears that the decisions to the effect that the rule (in Smith v. Selwyn) applies in Nigerian law were made per incuriam. It is my view that the rule is not applicable in Nigeria in view of the very clear two local statutory provisions. Section 5 of the Criminal Code Act is one, section 8 of the Interpretation Act is another…. Apart from the clear position of our law, it does not even seem to be a sensible thing to stop a plaintiff from instituting an action merely because the criminal action on the same matter has not been prosecuted. Certainly, a man who is aggrieved should have nothing to do with a criminal matter before instituting a civil action. The criminal matter is the concern of the State, so to say, while the civil matter is the concern of the aggrieved individual.’

In conclusion, a strict adherence to the rule of Smith v Selwyn will occasion hardship, consequently being a clog in the administration of the wheel of justice. The abolition of the rule is a welcome development. On this, the determination of a criminal case is time-consuming. Thus, waiting for the completion of a criminal case before the commencement of a civil action could be likened to Waiting for Godot. Even when it is finally settled, being that a crime is tried at the instance of the State, the victim will only get an appeasement, which in most instances, is not usually enough to cover the injury suffered by the victim. Hence, the abolition of the rule allows the plaintiff to bring a civil action for monetary compensation, specific performance, injunction, etc depending on the fact of each case.

Thank you for reading. See you next week❤.

Though all men are created equal by God, the law doesn’t view everybody as equal. They are certain categories of vulnerable persons whose special provisions have been made for them to protect their interest while entering into a contract. These are Infants, Illiterates, Drunkards, etc.

Our focus today will be on the capacity of an illiterate to enter into a contract. In law, an illiterate is someone unable to read with understanding and to express his thoughts by writing, in the language used in the document made or prepared on his behalf. See the case of Otitoju v Governor of Ondo State & Ors (1994) LPELR-SC.269/1990. With this, a professor of English may be illiterate in a contract written in German provided he doesn’t understand the language.

Since an illiterate is not be able to read, write and understand a document; such a person will need the assistance of a literate person. Hence, the need for an illiterate Jurat. An illiterate Jurat is someone who writes the document on behalf of the illiterate person. Section 3 of the Illiterate Protection Act makes provision for this and listed out the requirements that must be fulfilled by the writer. It provides; “any person who shall write any letter or document at the request, or on behalf or in the name of illiterate person shall also write on such letter or other document, his own name as the writer thereof and his address and his so doing shall be equivalent to statement”.
(a) That he was instructed to write such letter or document by the person to whom it purports to have been written and that the letter or document fully and correctly represents his instruction;
(b) If the letter or document purports to be signed with the signature or mark of the illiterate person that prior to its being so signed, it was read over and explained to the illiterate person and that the signature or mark was made by such person.

The purpose of the said provisions under Section 3 of the law is also to ensure in furtherance to the said protection of illiterate that the writer of such document is identified or traced. Implicit in that Section is that where there exists a doubt or a denial as to the correct statements that were made by the illiterate, the writer will be traced to show whether the contents of the document represent the veracity of what the illiterate asserts. In other words, the protection singularly enures only to the illiterate.

Furthermore, it is the trite principle of law that the court cannot presume illiteracy on behalf of a party. Rather, it must be established in evidence with the burden on proof being on the party who asserts it. See the cases of Ezeigwe v Awudu (2008) ALL FWLR (Pt.434) 1529. Kumo Furniture co v BOI LTD (2019) LPELR-SC 48080 (CA).

Also, the issue of capacity in the Illiterate Protection Act and laws of different states in Nigeria will arise only where the contract is in a written form. It doesn’t apply to oral contracts. This is because illiteracy does not necessarily suggest infirmity.

In conclusion, capacity to contract is one of the essential elements of a valid contract. The absence of which is fatal in a contract. In order to ensure that the illiterates are not defrauded during contractual relationships, there are several principles of law to be taken into consideration prior to the formation of a contract with an illiterate.