"The grouse of the appellant on this issue is that one Fabian Okwara who was disqualified from taking part in the hearing of the suit at the trial Court defied the order of the Customary Court of Appeal and continued to participate until the judgment stage.
The Respondent on the other hand contended that Fabian Okwara never participated in the proceeding at the trial Court after the order of the lower Court. My lord, the record of proceedings is the only indication of what took place in Court. It is binding on the parties and the Court. See FAWEHINMI CONSTRUCTION CO. LTD. V O.A.U. (1998) 5 NWLR (Part 553) 171, DANLADI V DANGIRI & ORS (2014) LPELR - 24020 (S.C.) and CHIEF FUBARA & ORS V CHIEF MINIMAH & ORS (2003) 5 S.C. NJ.142 at 168.
I have carefully combed through the record of proceedings at the Court of trial from 30/10/2001 to 24/4/2002 when the trial Court delivered its judgment MR. F OKWARA did not participate in the proceedings and Hearing of witnesses actually commenced on 30/10/2001 and only Mr. Nnakwe G.N and Mr Obioha S.A. sat on the panel. By S. 3(2) the Customary Court (Amendment) Edict No.6 of 1987 where"For the purpose of hearing any case or matter in the Court, the three members will be present.
(i) Where it is impossible for the three members to be present any two members shall lawfully constitute a full Court and shall lawfully sit and hear and determine any case or matter.
(ii) Where any two members constitute a full Court the chairman shall preside at the hearing of any case or matter.
(iii) Where any two members (not including the Chairman) constitute a full Court for the purpose of hearing a cause or matter the two shall select one of their members to preside, and the presiding member shall have all the powers of the chairman. 2) Where two members have started hearing a case or matter, the third member shall not join in the hearing of that case or matter until it is determined."
In view of the above provision of the Customary Court law, I am of the firm view that the proceedings of Customary Court of Ideato South Local Government Area holden at Isiekenesi, between 30/10/2001 and 24//4/2002 were legal and valid as the said trial Court was properly constituted. The contention of the appellants under this issue is in direct conflict with the contents of the record of proceedings of the trial Court. Learned Appellants' counsel ought to have challenged the authenticity and correctness of the record before raising this issue. See In OGLI OKO MEMORIAL FARMS LTD & ANOR V NACB LTD & ANOR (2008) 12 NWLR (PT 1098) 412 Onnoghen J.S.C. (as he then was) had this to say on this point.
"Any person who is contending that the record of proceedings before an appellate Court is not a fair record of what happened at the Court of first instance must formally impeach the record of proceedings where the record of proceedings is not formally impeached; it is not open to the appellate Court to speculate that other things happened in the trial Courts which were not recorded in the record of proceedings.
In the instant case, the respondent failed to impeach the record of proceedings before either the Court of Appeal or this Court. It was not shown that the record was not a full and complete minutes of all that transpired in the Court of first instance - See YARAZABAINA VS KANO N.A. (1961) 1 S.C.N.L.R 244; PANALPINA VS WARIBOKO (1975) 2 S.C. 29, STATE VS AIBANGBEE (1988) 3 NWLR (PT. 84) 548; ANIMASHAUN VS UNIVERSITY COLLEGE HOSPITAL (1996) 10 NWLR (PT. 476) 65; OGIDI VS STATE (2005) 5 NWLR (PT. 918) 286 @ 309." The contention of learned appellants' counsel on this issue therefore holds no water."
Per AWOTOYE, J.C.A. OHIAERI & ANOR v. ORISAKWE CITATION: (2018) LPELR-45019(CA)
