NANEVIE AND ANOTHER v. AGBOYIBOR AND OTHERS

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. [His lordship narrated the facts and outlined the earlier proceedings. He then continued:] There are in this appeal two matters which are objections in limine against the judgment of the trial native court; they are both connected with the inspection or the locus in quo. It is disclosed both in the report of the inspection that at two stages of the inspection, while the appellants were pointing out their land to the members of the trial native court, persons who were not parties or witnesses in the case intervened and gave the native court some information material to the issues before the native court; and also that at some stages of the inspection the parties themselves gave some further information on their case to the native court. When the native court re-assembled to continue its sitting before giving judgment it did not recall the parties and their witnesses to record on oath the matters they had alleged at the inspection, and did not get those non-witnesses who had interrupted at the inspection to state on oath the allegations and objections they had made to the inspection. Rather two of the three members of the native court went into the witness-box, one after the other, and made a report of the inspection on oath.

Although the information given to the native court at the inspection was not repeated on oath and recorded as part of the evidence in the case, it is quite clear from their judgment that the native court made use of those materials as part of the evidence for arriving at their decision. This practice has been condemned now and again. In Gblevi Family v. Amanie1 the facts in which were to some extent similar to those in the present appeal, the Court of Appeal in their judgment held that a judgment delivered in such circumstances is irregular and should be set aside and a re-trial ordered. They said, "It was imperative for the trial native court to take steps in order to have on record the facts collected at the inspection before grounding their judgment on them." Talking about what the Land Court as a court of appeal from a decision of the native court should do in such a case, the Court of Appeal said:

"We are of the opinion that the proper course for him to adopt in the interest of justice was to remit the case to the trial native court for a rehearing with a direction that evidence of what took place at the inspection should be recorded."

In that case