James Ogundele V. Dare Julius Fasu.(1999)

LAWGLOBAL HUB Lead Judgment Report

O. AYOOLA, J.S.C

The appellant whose claim (as plaintiff) against the respondent (as defendant) for damages for trespass on land claimed to be the appellant’s family land and an order of perpetual injunction restraining the respondent from further acts of trespass on the land, was dismissed by the High Court of Ondo State, and whose appeal from the decision of that court was dismissed by the Court of Appeal, has brought a further appeal to this court.

Ojuolape, J., who heard the case at the High Court was of the opinion, on the pleadings, that it was common ground that the parties had their respective farmlands from the same grantor who was their common ancestor,that they had a common boundary and that the main issue for determination in the case was: “where lies the common boundary between the two parties” after which the subsidiary issue would arise whether the respondent had crossed that boundary. Having considered the evidence adduced by both parties, the learned trial judge came to the conclusion that the appellant’s story that the land in dispute belonged to his family was not true having regard to the totality of the evidence. He came to this conclusion after setting out the principle that should guide him when parties rely on conflicting traditional history as set out in Kodjo v. Bonsie (1957) 1 WLR 1223. In accordance with that principle, he tested the traditional history by reference to the facts in recent years as established by evidence. It was clear from the judgment of the trial judge that the evidence he relied on was the oral evidence of the witnesses who testified. It has not been suggested on this appellants that he was wrong in believing or disbelieving any of the witnesses.

In the course of his judgment, the judge in several places made mention of an inspection of the land that he conducted “with the parties and their counsel as well as some of the witnesses”. Extracts from the judgment show that: (1) The inspection covered about four hours during which the judge and the parties, their counsel and some of the witnesses went round various location on the land in dispute, (2) The court observed that: “the ancient footpath which runs through exhibit ‘A’ is the one along the yellow line and which represents the common boundary between the plaintiffs land and that of the defendant. The defendant’s family land is on the Western side of the yellow line while that of the plaintiff is on the Eastern side of the yellow line”; (3) The court observed: “the defendant’s family members’ farms were found scattered all over the area B.”

The trial judge held that the appellant was not in exclusive possession of the land in dispute and dismissed the appellant’s claim. On the appellant’s appeal to the Court of Appeal, several issues were canvassed by counsel on his behalf. At the end of the day, that court was of the view that the two substantial issues in the case were whether there were violations, as alleged by the appellant, of “section 154 (sic) of the 1979 Constitution” and of section 77 (d)(ii) of the Evidence Act.

The first issue identified by the Court of Appeal arose because the trial judge delivered his judgment outside the three months limit prescribed by the 1979 Constitution for delivery of judgments. The fact was undisputed that although evidence and addresses were concluded in the case on 7th March. 1989 judgment was not delivered until 10th July. 1989, that is to say, months and a few days after the conclusion of evidence and addresses. The second issue arose because the judge did not invite parties and witnesses to testify on what they saw during the visit to the locus in quo.

Ogundere, J.C.A. who delivered the leading judgment of the Court below with which Adio, J.C.A. (as he then was) and Akpabio J.C.A. agreed, dismissed those issues, he being of the opinion, as to the former, that no miscarriage of justice had been occasioned and as to the latter that whatever error had occurred did not affect the trial judge’s conclusion. In the event, the Court of Appeal dismissed the appellants’, appeal. The appellant appealed.

On this further appeal from the decision of the Court of Appeal, heard pursuant to 0.6 r. R of the Supreme Court Rules as having been argued by the parties, the appellant persisted in the complaints which he had raised, on the briefs filed, albeit without profit, in the court below. The two grounds of appeal raised by his notice of appeal complained of errors in law respectively as follows: First, that the Court of Appeal erred in law in “dismissing the appellant’s appeal notwithstanding the violation of section 257(1) (sic) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Amendment Act No. 17 of 1989 sub-section 4 of section 258 and section 76(ii) of the Evidence Act.”, and secondly, that the Court of Appeal erred in law in dismissing the appeal after it had held that the trial judge had erred in making references to certain facts which he personally observed during the visit to the locus in quo. It was given as one of the particulars of error that a miscarriage of justice had been occasioned in that the appellant was “denied the right to give evidence to testify and address Court on this relevant issue i.e. visit to locus in quo after inspection.”

It is pertinent to observe, with some dismay that the particulars of error given in regard to the first ground of appeal related to the alleged irregularity occasioned by the inspection of the land. There was no attack on the opinion held by the Court of Appeal that: “the appellant did not show what miscarriage of justice was occasioned by the one month lateness in the delivery of the judgment of the lower Court in excess of the three months Constitutional time.”

Although section 258(1) of the 1979 Constitution provided that every court established under the Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses, a new subsection had been introduced by Decree No. 17, of 1985 which provided that the decision of a court shall not be set aside or treated as a nullity on the ground of the provisions. inter alia, of section 258(1): “unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof’.

It is clear that for a party who establishes that a judgment has been delivered outside the period set by the Constitution for delivery of judgments to have such judgment set aside on the ground that it has been delivered outside such period. It is not sufficient to establish a contravention of the Constitutional provision. He must also establish that a miscarriage of justice has been occasioned in regard to him by reason of the contravention.

On this appeal, it has not been shown that the Court of Appeal was wrong in holding that the appellant had not shown what miscarriage of justice was occasioned by delivery of the judgment a month after the prescribed period. The appellant had tried to show that an alleged irregularity in the course of the trial i.e. in the visit to the locus in quo, had occasioned a miscarriage of justice. It is clear that the miscarriage of justice that is relevant in regard to section 258(4) of the 1979 Constitution (as amended) (and, I dare say, section 294(5) of the 1999 Constitution) is miscarriage of justice suffered by the party complaining by reason of contravention of that section, and not a miscarriage of justice that may have occurred by reason or an irregularity in the course of the proceedings. I hold that the appellant’s first ground of appeal and the second issue on this appeal based thereon are misconceived and without substance.

The first issue raised on this appeal is couched thus:

“Whether the Court of Appeal was justified in dismissing Plaintiff/Appellant’s appeal having held as follows:

‘Admittedly, the learned trial Judge erred in his reference in the judgment to certain facts which he personally observed during the visit to the Locus in Quo” contrary to section 76(d)(ii) of the Evidence Act Cap. 112 Laws of the Federation, 1990 having regard to the Statutory Right or provisions (sic) of the plaintiff contained in section 76(d)(ii) of the Evidence Act” and the Supreme Court Judgment in Ifezue v. Livinus Mbadugha & Anors. (1984) 5 SC 70, at 89 and Chukwuogor v. Obuora. 1987 NSCC part 11 Vol. 18 at page 1063 and 1071 and at page 1063 and 1064, held in (1) & (2).”

I have quoted the issue as formulated extensively because, surprisingly, it was formulated in a brief of argument under the signature of a Senior Advocate of Nigeria who by virtue of his status in the legal profession would be expected to regard it as a duty to this court to be careful and precise in his formulation of issues. In this issues, it is difficult to comprehend what the learned Senior Advocate meant by “the Statutory Rights or provisions of the plaintiff contained in section 76(d)(ii) of the Evidence Act.” when that section prescribed no rights. Furthermore, the case of Ifezue v. Mbadugha (wrongly referred to as Ifezue v. Livinus) had nothing to do with inspection of locus in quo but, rather, related to judgments delivered outside the Constitutional period, and was delivered before the 1979 Constitution was amended.

Notwithstanding the lack of precision and accuracy in the formulation or the first issue, the issue is considered on its merits. The Court of Appeal having held that the trial judge erred in his reference in the judgment to certain facts which he personally observed during the visit to the locus in quo, the limited question that arises on this appeal is as to the consequence of that error. The appellant contends that it should lead to the upholding of his appeal by the Court of Appeal and, I presume, the setting aside of the judgment of the trial judge.

However, the opinion of the Court below was that the observations which came at the end of the trial judge’s “in depth appraisal of the evidence in the case did not materially affect his decision, which rested primarily on the failure to call necessary evidence in proof of his claim. Without the said observation the decision would still be the same’”

The authorities are now clear that such error as is held committed by the trial judge in referring in his judgment to certain facts observed by him in the inspection on which there was no evidence on record, would not vitiate the decision in so far as conclusions drawn from those observations did not materially affect the judge’s decision. The law is well put in Ejidike & Ors. v. Obiora 13 WACA 270 cited with approval by this court in Olubode & Ors. v. Salami (1985) 2 NWLR (Pt.7) 282: (1985) 1 NSCC 392, 401 as follows:

“Although the judge may have erred in referring in his judgment to certain facts observed by him in the inspection, of which there was no evidence on record and had drawn certain conclusions therefrom, the court was not satisfied that these conclusions materially affect his decisions, or that if he had not made such observation he could have come to a different conclusion’”

On this appeal, the appellant’s counsel, rather than show that the Court of Appeal was wrong in its conclusion that the error made by the trial judge did not affect his decision. side-tracked that issue and referred to the case of Chukwuogor v. Obiora (1987) 2 NSCC 1063: (1987) 3 NWLR (Pt.61) 454 which is hardly relevant to this case. That was a case which dealt with the effect of an inspection on the commencement of time within which the court should deliver its judgment pursuant to the Constitution. The only proposition of law that can be extracted from that case is that the effect of the decision of a trial judge to visit the locus in quo may be to postpone the commencement of the period prescribed by section 258(1)of the 1979 Constitution to the date of the inspection or, as the case may be, of a subsequent address following the inspection, if any. That proposition has no relevance to this appeal.

In this case, the inspection took place before the parties addressed the court. Counsel for the respondent referred to the inspection in the course of his address at trial without any objection or response from the appellant’s counsel. Counsel for the appellant was thus not correct when he submitted on this appeal that the appellant and his Counsel were deprived of their right to address the court after inspection of the locus in quo.

Whichever way one looks at it, this appeal is utterly devoid of merit. In the result I would dismiss it. The appeal is accordingly dismissed with N10,000 costs to the respondent.

SC.179/1993