Alhaji Jamiu Olokotintin V. Saamu Sarumi & Ors (1996)
LawGlobal-Hub Lead Judgment Report
OGEBE, J.C.A.
The appellant sued the respondents before an Ilorin High Court claiming in paragraph 13 of the statement of claim as follows:-
“whereof the plaintiff claim (sic) against the defendants the following:-
a. A declaration that the plaintiff is the occupier/holder of the said piece of land lying and situate at Ile-Olokotintin Ilorin.
b. Perpetual injunction restraining the defendants, their servants and agents from any act of trespass on the said land; and
c. One thousand Naira (N1,000.00) general damages for the said trespass.”
The respondents in their statement of defence denied the claim and summarized their defence in paragraph 23 thereof as follows:-
“In further answer to paragraphs 13(a)(ii) and (iii) of the statement of claim, the defendants aver that the plaintiff is not entitled to the reliefs sought therein and that they are not in any way or manner liable to him in the sum of N1,000.00 or any other sum at all. Whereof, the defendants pray this Honourable Court to dismiss the plaintiff’s claim in its entirety as same is frivolous, vexatious, fishy and an abuse of the court’s process.”
The appellant gave evidence and called 2 witnesses to prove his claim. He stated in evidence that the disputed land belonged to his father, and that the original owner was his grand father Alhaji Abdullahi Assau Olokotintin. He said that the 1st respondent sold his land to the other 2 respondents and that was the basis of his claim. On the description of the land his exact words are as follows:-
“The land is situate at Okelele near Abayawo in Ilorin. It is along Osibi Road before getting to Okelele Secondary School and extends to Odi-Abayawo. The land is between these areas mentioned above. The land is 800ft. by 600ft. The land is called Olokotintin land.”
He did not state under which customary law he was claiming the land nor did he give a clear historical evidence of how his father founded the land.
The 1st respondent gave evidence and tendered 2 exhibits, D1 and D2. Exhibit D1 is a certified true copy of the judgment of the Ilorin High Court sitting on appeal in suit No. KWS/8A/84 in which it reversed the judgment of an Ilorin Upper Area Court which had earlier set aside the decision of an Area Court Grade 2 which dismissed the claim of one Ambali Olokotintin, the alleged privy of the present appellant claiming the same piece of land.
The 1st respondent gave an account of how the land came to be vested in his family. He said that the land in dispute was given to his grand father Ologbondoko by Abdul Salasi, a one time Emir of Ilorin as a reward for his being a warrior and fighting a war on behalf of the Emirate and it got to him through inheritance. He was the oldest member of the family and was vested with the land on behalf of his family. He gave evidence of how he has sold parcels of land to various people from the family land. He said that one Ambali had sued him in respect of the same land and he won as shown by Exh. D1.
At the close of the case for the parties the court in the presence of the respective parties visited the locus in quo. The parties submitted written addresses and the trial court on the 3rd of March 1994 adjourned the matter for judgment to the 26th of April 1994. The judgment was eventually delivered on the 28th of July 1994 after a period of roughly 4 months and 3 weeks from the date when the judgment was reserved. The main reason for the delay was that the trial Judge’s wife was sick and eventually died in the interval. He obtained the consent of both parties before he delivered the judgment after 3 months of its being reserved. In the judgment the trial Judge dismissed the appellant’s claim on 2 grounds, firstly that he failed to establish by sufficient and credible evidence his claim before him, and secondly the matter was caught by the principle of res judicata. It is against that judgment that the appellant appealed to this court on 3 original grounds of appeal and with the leave of the court 2 additional grounds of appeal. In accordance with the rules of this court the appellant filed his brief in which 5 issues for determination were formulated as follows:-
“1. Whether the learned trial Judge was right in holding that the doctrine of res judicata applied to the facts of this case. (Ground 1)
- Whether the learned trial Judge was right in holding that the land in dispute was the same land with the one determined in Exhibit D1. (Ground 2)
- Whether the judgment of the learned trial Judge was not against the weight of evidence. (Ground 3)
Issue No.4
Whether the learned trial Judge was right in giving judgment in the case well over 3 months stipulated by the Constitution of the Federal Republic of Nigeria and whether such error had occasioned a miscarriage of justice. (Ground 4)
Issue No.5
“Whether the learned trial Judge was right in relying on the descriptions of the land in dispute made by the parties and his personal observations at the locus, and on which he found that the land in dispute is the same with the one as determined in Exhibit D1.
(Ground 5).”
The respondents also filed their own brief in which they identified the following 5 issues for determinations: –
“i. Whether the learned trial Judge was not right in holding that Exhibit D1 constituted estoppel per rem judicata against the appellant herein. (Grounds 1 & 2).
ii. Whether, at whatever event, the plaintiffs/appellant’s case was not rightly dismissed by the learned trial Judge. (Ground 3).
iii. Whether the failure of the learned trial Judge to give judgment before the expiry of the statutory three months has occasioned a miscarriage of justice and whether the appellant is entitled in law to complain about this failure. (Ground 4).
iv. Whether the judgment of the trial court is vitiated by the issue of the visit to the locus in quo.
On the 1st Issue the learned Senior Advocate for the appellant submitted that the trial Judge erred in law and on the facts in holding that the doctrine of res judicata applied to the land in dispute as the land was the same with the one disputed in Exh. D1 for the following reasons:-
(i) The res is not the same, the appellant claimed a piece of land measuring 800ft. by 600 ft. whereas the land determined in Exh. D1 by the trial Area Court measured 378ft. in length, 254ft. in breadth and 349ft in width.
ii. It is trite law that where a present suit involves a large area of land which includes a smaller area of land earlier awarded to a party, res judicata can only apply to the smaller area awarded in the previous suit.
iii. The issue is not the same. In the present case the issue is for declaration that the appellant was the occupier/holder of the land in the present suit. Perpetual injunction and damages for trespass whereas in the case determined in Exh. D1 the claim was for ownership of the land in dispute simpliciter.
iv. The parties are not the same. In the present case the appellant claimed in his personal capacity for his father’s land whereas in the case determined in Exh. D1 the plaintiff thereof claimed for himself and on behalf of his family, Olokotintin family.
He referred to the case of Amos Aro v. Fabolade (1983) 2 S.C. 75; (1983) 1 SCNLR 58.
In reply to this issue the learned counsel for the respondents submitted that the trial Judge was right to hold that the dispute was caught by the doctrine of res judicata as it was clear that the appellant’s elder brother Ambali had sued the 1st respondent over the same land and lost as per Exh. D1.
Both sides are agreed that for the principle of res judicata to apply, the res must be the same, the issue in controversy must be the same and the parties must be the same. See the cases of Amos Aro v. Fabolade (1983) 2 S.C. 75; (1983) 1 SCNLR 58 and Udo v. Okupa (1991) 5 NWLR (Pt.191) 365. In the present appeal the appellant sued the respondents that he be declared occupier/holder of a piece of land situate in Ile-Olokotintin.
In Exhibit D1, one Ambali Olokotintin the elder brother of the present appellant sued the 1st respondent in the Area Court Grade 2 No.1, Ilorin claiming on behalf of his family a piece of land situate at Ile-Olokotintin Okelele, Ilorin and lost. It is not disputed that that judgment is binding on the appellant since his elder brother sued on behalf of the family.
What is seriously disputed is that the disputed land is not the same. I have examined Exhibit D1 very carefully and I observe that there is nothing in it to show the description of the land in dispute in that claim to enable the trial court to reach the conclusion that it was the same land being disputed before it. The trial court was therefore wrong to apply the doctrine of res judicata to the case.
This issue is resolved in favour of the appellant. However, it does not dispose of the appeal as the trial court dismissed the appellant’s claim not solely on the basis of res judicata but also on the failure of the appellant to prove his claim on satisfactory evidence.
Issue 2 in the appellant’s brief is virtually the same as issue 1 and will not be treated separately. Indeed the learned senior advocate adopted his argument in respect of issue 1 and issue 2.
On the 3rd issue the learned Senior Advocate submitted that the judgment was totally against the weight of evidence as there was nothing on the record of appeal to show that the trial Judge recorded what was shown to him by the parties at the locus in quo. He admitted that what the learned trial Judge did was a violation of section 77(d)(ii) of the Evidence Act by failing to record the proceedings at the locus in quo. He relied on the cases of Chukwuogor v. Obuora (1987) 7 SCNJ 191 at P.210 lines 38 to 43 and P.193 lines 1 to 20; (1987) 3 NWLR (Pt.61) 454; Bello v. Kassim (1969) 1 NMLR 148. It was further argued that the learned trial judge did not decide the matter on the evidence before him, rather in his summing up he mixed up the evidence given by the 1st respondent with the evidence of P.W.3, and this has led to a miscarriage of justice.
On this issue the learned counsel for the respondents replied as issue 4 in the respondents’ brief and submitted that the purpose of the visit to the locus in quo was for the singular purpose of ascertaining whether or not both parties were referring to the same land, that is the land in dispute. The visit therefore was not undertaken for the purpose of taking evidence but for inspection which was permissible by virtue of section 77(d) (ii) of the Evidence Act. This practice was endorsed by the Supreme Court in the case of Briggs v. Briggs (1992) 3 NWLR (Pt.228) 128. The learned counsel submitted that the trial court made a note of its visit to the locus in quo on 3/3/94 as follows:
“3/3/94
Parties present.
A.U. Amuda for the plaintiff.
Akeem Ijaiya for the defendant.
Court: we have been to locus in quo and the parties were present with their counsel. The plaintiff pointed out to his land while the defendant claimed that the whole land belongs to him. Case is adjourned to 26/4/94 for judgment
(SGD)”
Learned counsel submitted that the notes are sufficient for the purpose of inspection.
Section 77(d)(ii) of the Evidence Act, 1990 is relevant to this issue and it reads:-
“If oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection, or may inspect or may order or permit a jury to inspect any movable or immovable property, the inspection of which may be material to the proper determination of the question in dispute and in the case of such inspection being ordered or permitted, the court shall either be adjourned to the place where the subject-matter of the said inspection may be and the proceedings shall continue at that place until the court further adjourns back to its original place of sitting or to some other place of sitting, or the court shall attend and make an inspection of the subject-matter only, evidence, if any, of what transpired there being given in court afterwards; in either case the accused, if any, shall be present.”
In the case of Briggs v. Briggs (1992) 3 NWLR (Pt.228) 128 at P.149, the Supreme Court interpreted section 77(d)(ii) in the following words as per Olatawura J.S.C:”
The purpose of a visit to the locus in quo is not to recite the evidence already led but to clear doubt which might have arisen about the conflicting evidence or apparent misrepresentation of fact by either side. Where there is conflicting evidence in relation to the objects, boundaries: natural or man-made in respect of a land in dispute or in relation to where an accident had occurred e.g. motor vehicle offences or any other criminal offences where the issue of relative positions of witnesses are concerned, the court ought to resolve the conflict by a visit to the locus. What looks convincing or inconclusive on a plan may affect the justice of the case unless the court, the parties and their counsel and witnesses go to the site. What is frowned upon when such a visit takes place is for the judge making himself a witness. The judge’s observation on such visits will definitely be accorded respect as to the true position of what he saw on the ground.”
At P.152 Akpata J.S.C. made the following remarks:-
“in the instant case, the learned trial Judge considered the inspection of the subject-matter “material to the proper determination of the question in dispute.” It is clear from the provision of proviso (ii) of section 76 that there are two alternative methods of carrying out an inspection to a locus in quo, namely:-
(a) The court shall either be adjourned to the place where the subject matter of the said inspection may be and proceedings shall continue at the place until the court further adjourned back to its original place of sitting; or
(b) The court shall attend and make an inspection of the subject matter only, evidence, if any, of what transpired there being given in court afterwards.
The learned trial Judge followed the second alternative method. He went to the locus in quo and made an inspection of the subject matter only, that is, the landed property in dispute. It was not necessary for the court to reassemble in court and receive evidence, unless something else transpired apart from the inspection, that was carried out.”RSY
It is quite clear from the record of the trial court that the purpose of the visit to the locus in quo was to enable the judge to satisfy himself that the parties were quarrelling over the same piece of land. It was not necessary for him to take elaborate notes of evidence in that situation. The appellant has not shown that the failure to take evidence at the locus in quo or subsequently prejudiced his case.
I have looked at the evidence of P.W.3 Alhaji Gbalowo Adisa at P.68 of the record and the summary of the evidence by the trial Judge at P. 113 of the record and it is clear that the first part of the summary of the evidence of the trial Judge is correct. It is the latter part which reads:-
“The land is called the land of Olokotintin is situate and lying from Ile Eleku to Epe up to Moro-Osibi town. There is a common boundary with Osibi town. There are locust bean trees, there are erected wall around the land called ado Sarumi Ologbondoko. There is Al-Abodiyya School on the land.”
which is incorrect and was actually lifted from the evidence of the 1st respondent. The question is, does this mistake seriously affect the judgment of the trial court? It is not every mistake by a trial court that can result in its judgment being allowed. In this particular case I consider the mistake to be minor see John Bankole & Ors. v. Mojidi Pelu & Ors. (1991) 8 NWLR (Pt.211) 523 and Chief Onwuka Kalu v. Chief Victor Odili (1992) 5 NWLR (Pt.240) 130.
If one takes a hard look at the evidence of the appellant and his witnesses, which I have done, it will be clear that he failed woefully to establish his case before the trial court. He failed to establish under which law he was claiming the land and he also failed to establish with certainty the land he was claiming. He did not tender any survey plan of the disputed land. I have earlier in this judgment given his vague description of the land which is totally inadequate. It is trite law that the first duty of any claimant to a piece of land is to describe the land with certainty. See Akeredolu v. Akinremi (1989) 3 NWLR (Pt.108) 164 and Olusanmi v. Oshasona (1992) 6 NWLR (Pt.245) 22. I am therefore of the firm view that the trial Judge was right in holding that the appellant failed to prove his claim before him and he rightly dismissed it. See Green v. Green (1987) 3 NWLR (Pt.61) 480 and Olujitan v. Oshatoba (1992) 5 NWLR (Pt.241) 326.
On the 4th issue the learned Senior Advocate submitted that the learned trial Judge was wrong in failing to deliver his judgment within three months of reserving the same, contrary to section 258(1) of the 1979, Constitution as amended. He said that as a result of the delay the trial Judge mixed up the evidence of the 1st respondent and that of P.W.3 and then held that the land disputed in Exh. D1 was the same as the land presently disputed. He referred to the case of Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360.
In reply to this the learned counsel for the respondents arguing under his own issue 3 submitted that the failure of the trial court to deliver its judgment within the statutory period of three months did not occasion any miscarriage of justice. He said that the section has been amended to allow an appeal court to examine the judgment and determine whether or not there has been a miscarriage of justice. He relied on the following cases:- Ojokolobo & Ors. v. Alamu & Anor(1987) 2 NSCC 991 at 1001; (1987) 3 NWLR (Pt.61) 377; Gafari v. Johnson (1986) 5 NWLR (Pt.30) 66 and Kpema v. The State (1986) 1 NWLR (Pt.17) 396.
The law is quite clear now that the mere fact that the judgment is delivered after the three months’ period stipulated by section 258 of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Amendment Act No. 17 of 1985 which added a new subsection (4) that an appeal court can look at such a judgment, and if satisfied that the party complaining has not suffered a miscarriage of justice allow the judgment to stand. That sub-section reads:- .
“The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provision of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice by reason thereof.”
This sub-section has been interpreted in the following cases:- Ojokolobo & Ors. v. Alamu & Anor. (supra); Gafari v. Johnson and Kpema v. The State (supra).
From the record of appeal at P.108 the trial Judge was unable to deliver his judgment primarily because his wife died when the case was reserved for judgment. In the judgment itself he stated the reasons for the delay at P.120 as follows:-
“In ending this judgment I have to remark that this case has been over-due for delivery of this judgment owing to my incessant travels from Ilorin to Lagos and back since October, 1993 while my wife was seriously ill in the Hospital as a result of which she died on 4/4/94.
Before he delivered the judgment he asked learned counsel on either side whether he could still deliver it since it was out of time and both of them had no objection to his delivering the judgment, that note is at P.109 of the record. Whether or not the parties agreed to the judgment being delivered out of time is not what makes it valid. From the Constitution itself, before a judgment delivered out of time can be declared a nullity, the appellant must show that he has suffered a miscarriage of justice as a result. In this case my attention has not been drawn to any miscarriage of justice occasioned the appellant. His only complaint was a small mix up in the evidence of P.W.3 and the 1st respondent which I had earlier on held in this judgment not to affect the merit of the case.
In summary, it is my view that none of the complaints of the appellant in his brief is sufficient for me to interfere with the decision of the trial court. As has been demonstrated earlier on, the appellant was unable to establish his claim before the trial court and that court rightly dismissed it. Consequently, I see no merit in this appeal, and I hereby dismiss it with N1,000 costs in favour of the respondents.
Other Citations: (1996)LCN/0229(CA)
