Madam Oredola Ogunameh & Ors V. Olugbenga Adebayo (2007)
LawGlobal-Hub Lead Judgment Report
AUGIE, J.C.A.
Madam Ashabi Adebayo, the late mother of the Respondent herein, was the Plaintiff at the Shagamu High Court of Ogun State, where she had instituted an action against five Defendants, including the Appellants herein, claiming – a declaration that she was entitled to the grant of a statutory right of occupancy to a piece of land along Olutayo Ogunyanwo Street, Makun, Shagamu; N500,000.00 as special and general damages; and perpetual injunction restraining the Defendants, etc., from further trespass to the land.
At the trial, Madam Adebayo testified as PW2 and called two other witnesses – PW1, Sunmola Sanni, the Asipa of Koyelu Family, who testified that the Family sold the land in dispute to her and acknowledged his signature on the Purchase Receipt (Exhibit A), and PW3, Amos Ade Onabote, her Bricklayer.
Kolawole L. Ayanwale, a Registered Surveyor, was the 1st Defence Witness, and his testimony and Survey Plan (Exhibit E) led the learned trial Judge, Hon. Justice B. O. Ogunade, to order a visit to the locus. He had observed –
“At this stage It seems to me that having regard to the state of the conflicting evidence fed by the parties so far in respect of the site in dispute a visit to the locus will be beneficial’. (Italics mine)
At the locus in quo, the learned trial Judge recorded his observations, which was read out In Court and “both counsel agreed that the record is correct”.
Thereafter, the 1st Appellant testified that the land in dispute was allotted to her as a member of the same Koyelu Family and that she was given Exhibit F, a Land Agreement dated 13/4/77, as evidence of the grant. Sule Bakare, another member of the Koyelu Family testified as DW3 that the land belonged to the 1st Appellant and while he was in the witness box, the Appellants’ counsel applied and was granted leave to amend their Statement of Defence.
DW3 completed his testimony and the 3rd Appellant then testified as DW4.
Thereafter, counsel addressed the Court and in his Judgment delivered on the 4th of December 1997, the lower Court held as follows on the issue of title-
“After weighing all the evidence led by the parties on an imaginary scale as suggested in MOGAJI vs. ODOFIN (1978) 4 S. C. 91. I have come to the conclusion that more weight ought to be ascribed to the evidence of the Plaintiff and her witnesses on the issue of who has a better title to the land in dispute. I therefore hold that the Plaintiff has proved a better title than the 1st Defendant and those who are relying on her claim to title”. (Italics mine)
Dissatisfied with the decision of the lower Court, the Appellants appealed to this Court with an Amended Notice of Appeal containing 4 Grounds of Appeal.
In line with the Rules, briefs of arguments were duly filed and exchanged and in the Amended Appellants’ Brief prepared by Chief Lanre Akintola, it was submitted that the following Issues call for determination in this appeal –
- Whether from the totality of the evidence adduced by both parties the lower Court used the proverbial scale of justice, vide Odofin & ors V. Mogaji & ors (1978) 2 NSCC275 before it entered Judgment on favour of the Respondent.
- Whether it was right for the lower Court to substitute its own observations of what happened at the locus in quo and pointed out certain features of the land in dispute and everything else said by witnesses at the locus.
It was however submitted in the Amended Respondent’s Brief prepared by Olu Adenowo, Esq., that the Issues for Determination are as follows-
- Whether on the totality of the evidence on record the trial Judge arrived at a proper decision in the Judgment delivered in favour of the Respondent.
- Whether by the visit to the locus in quo, the notes of inspection recorded by the trial Judge and the subsequent procedure adopted there was a fundamental breach, which occasioned miscarriage of justice in the entire consideration of the case.
In my view, there is not much difference between the Issues formulated by the parties – they both draw attention to the Appellants’ grouse, which is that the lower Court failed to evaluate the evidence before it properly and did not apply the correct procedure at and after the Court’s visit to the locus in quo.
On the first issue, I must quickly point out that when it is alleged that a trial Court failed to properly evaluate evidence or that its Judgment is not based on the weight of evidence, the Appellant must strive hard to show which admissible pieces of evidence the lower Court rejected or inadmissible evidence it relied upon and the extent, if at all, to which such misdirection in law resulted in a miscarriage of justice in the matter – see Akinfe V. U.B.A. Plc (2007) 10 NWLR (pt. 1041) 185. In this case, the Appellants hinged their grievance on the importance the lower Court placed on the evidence of PW1. It is their contention that an “Asipa” is a just a “messenger of the family”, and the lower Court was therefore wrong to attach any importance to the evidence of PW1 and find in favour of the Respondent. They submitted that evidence elicited from an opponent during cross-examination goes to no issue, citing Woluchem & ors V. Gudi & ors (1981) NSCC 214; that the inference drawn from the position of an “Asipa” influenced the lower Court’s finding that PW1’s evidence should be accorded some importance, which thereby occasioned a miscarriage of justice; and that as a messenger, PW1’s evidence had no probative value, which is why he had no knowledge of the important details of the transaction between the family and the Respondent.
The Respondent however argued that it is “derogatory” to describe an “Asipa” as a “messenger”, as both in the family and community set up in Yoruba land the office (or title) of ASIPA is an important office, quoting from The History of the Yoruba by the Reverend Samuel Johnson; that the Appellant’s counsel stated the obvious when he said Asipa is an important officer of the Koyelu Family; and that PW1’s evidence on oath was rightly accepted by the Trial Judge, not only because of the importance of his office/title in the family but more importantly on the straight forward manner in which he lucidly testified; and that the evidence of PW1 was believed on its merit before any consideration of his office as the Asipa came into play. I agree with him.
As the lower Court rightly said, the Issue before it was – who had a better title to the land in dispute between Madam Adebayo and the Appellants since they both traced their claims on the land in dispute to the same Koyelu Family.
Madam Adebayo claimed that the Koyelu Family sold the land in dispute to her on the 7th of February 1977, and the Purchase Receipt (Exhibit A) issued to her by the Family was admitted in evidence through PW1. It reads in part-
“LAND PURCHASE RECEIPT made the 7th day of February 1977 between: – (1) Alhaji Alii Jileya (Head of Family); – – (4) Mr. Sunmola of Koyelu Compound – and accredited representatives of Koyelu Family AND Madam Asabl Adebayo AND WHEREAS the purchaser has approached the Vendors for an absolute sale to her and the Vendors have agreed to sell and did sell to the purchaser on the payment of the purchase price fn the sum of Two Thousand five hundred Naira (N2, 500.00) to the Vendors (the receipt whereof the Vendors hereby acknowledge) the Vendors as the Beneficial owners hereby sell to the purchaser and put her in possession of all THAT piece or parcel of land situate at Koyelu Family Land, Ajaka.”
PW1, the said Asipa of the Family, testified as follows in his evidence in chief-
“Koyelu Family sold the land to her about 18 years ago; the land belongs to Koyelu Family. She paid for the land. The Family acknowledged the payment in writing. I know some of those who were signatories to the acknowledgment; they are Alli Jileya, Sadiku Adaran, Emmanuel Adeniyi, Sunmola Sanni (myself), Mukaila Adeniyi –
I see the document shown to me (Exhibit At It is the document by which the Family acknowledged Receipt of the purchase money.”
Under cross-examination by the Appellants’ counsel, he replied as follows-
“I cannot tell you the dimension of the land sold. I do not know exactly how much she paid; payment was made to the elders of the family. I agree with you that as an Asipa I hold an Important position In the family’. (Italics mine)
The Appellants however claimed that the land in dispute was allotted to the 1st Appellant by the Koyelu Family since she is a member of the Family, and in her evidence she tendered a Land Agreement (Exhibit F), which reads –
“An AGREEMENT hereby made and entered this 13th day of April 1977 between the Koyelu Family – – (hereinafter called the Guarantors) and Oredola Jileya (hereinafter called the Guarantee). Whereas, the (Guarantee) requested and the Guarantors agreed to grant to the said Guarantee (herein above mentioned) a piece or parcel of landed property measuring 100 ft by 100.” (Italics mine)
Under cross-examination by the Respondent’s counsel, the 1st Appellant said-
“Alhaji Alli Jileya should be over 100 years of age. I agree with you that Alhaji Alli Jileya has for many years been representing my own branch of Koyelu Family at meetings of that Family. Alhaji Alli Jileya has been out branch representative for over forty years.”
After a thorough review of the evidence, the lower Court observed at p. 116 –
“1st P. W. Sunmola Sanni, one of the signatories to Exhibit A (the Purchase Receipt) testified in respect of the sale by Koyelu Family, the payment of the purchase price and possession of the land by the Plaintiff. This witness has been described as an important office holder of Koyelu Family by learned counsel for the Defendants under cross examination.
In my view, this makes his evidence to be accorded some importance. His evidence in respect of the sale was not shaken under cross examination. He testified that at the time of the sale to the Plaintiff Alhaji Alli Jileya is the Head of Koyelu Family and that he had been for over 30 years. He categorically denied the sale of the land to the 1st Defendant.” (Italics mine)
And held as follows at p. 118 of the Record –
“I also accept the evidence of the Plaintiff coupled with the several admissions as to the importance of Alhaji Alli Jileya within Koyelu Family at least for over forty years that as at the time of sale of land to the Plaintiff in 1977 Alhaji Alli Jileya was the Head of the Koyelu Family. I reject the evidence of the 1st Defendant and that of 3rd D.W. that one Adeyiga Sontan was the Head of Koyelu Family in 1977 when land was sold to the Plaintiff”. (Italics mine)
I do not see how the lower Court’s conclusion can be faulted. To start with, it is clearly not true as the Appellants submitted that PW1, the Asipa “was not a signatory to the Purchase Receipt, Exhibit ‘A’ but recognized some of the signatories to the Exhibit”; and that “none of the signatories to Exhibit A testified for the Plaintiff/Respondent”. The Asipa as PW1 not only listed himself as one of the “signatories to the acknowledgment” (see p. 35), it is there in black and white that he signed Exhibit A as one of the “Accredited Representatives of Koyelu Family” who sold the said land to the Respondent.
They also argued that he did not know the dimension of the said land and the price paid by the Respondent, but that is neither here nor there, the furnishing of particulars by a witness is not a measure of its veracity, particularly in this case where parties have tendered relevant documents, “which represent evidence of some more or less permanent or perhaps unassailable character” – see Olujinle V. Adeagbo (1988) 2 NWLR (pt. 75) 238 where the Supreme Court per Nnaemeka-Agu, JSC further observed-
“But in a case like this in which documentary exhibits have been admitted in evidence, demeanor plays an insignificant, if any, role.
The documents tendered in this case should have been used as a hanger with which to assess oral testimony”. (Italics mine)
And that is what the lower court did in this case; base its assessment of the evidence adduced by the parties on the documents they presented before it.
The evidence of the “Asipa” of the Koyelu Family as PWI may have been “accorded some importance’ by the lower Court but at the end of the day, it is Exhibit A, the Purchase Receipt issued to Madam Ashabi Adebayo, that weighed heavily on the scale of justice and clinched the case in her favour.
To this end, the lower court held as follows at pages 118 – 119 of tile record-
“The Plaintiff has not pretended that that Exhibit A is her root of title but she has tendered it as evidence of payment. A receipt does not have to be registered in order to be admissible under the Lands Instrument Law, Laws of Ogun State. On the other hand, the 1st Defendant appears to base her claim to the land in dispute on Exhibit F. It is not registered as required by Section 7 of the (Lands Instrument Law), its admissibility is consequently prohibited by Section 16 of the same Law. I shall be acting within the powers of the Court to reject the evidence led on Exhibit F even at this stage. I therefore expunge all the evidence fed In respect of Exhibit F”.
Again, its reasoning and conclusion cannot be faulted, as it is definitely right.
An “Instrument” is a document affecting land whereby one party called the grantor confers, transfers, limits, charges or extinguishes in favour of the grantee any right or title to or interest in land – see Section 2 of the Land Instruments Registration Law. In other words, once a document purports to transfer and/or confer any interest in land, it becomes an instrument, which must be registered – see Niger Construction Ltd. Raphael Waka Ogbimi (2001) 18 NWLR (pt- 744) 83; Ikonne V. Nwaclwkwu (J991) 2 NWLR (pt.172) 214. In determining whether a document is an instrument or not, the Court will look at the contents of the document and determine what the document is supposed to achieve; if the transfer of the right or title to land is effected by the document, then it is an instrument – see Ogun V. Asemah (2002) 4 NWLR (Pt. 756) 208- Uzoegwu V. Ifekandu (2001) 17 NWLR (Pt.741) 49 & Oredola Okeya Trading Co. V. A,-G. Kwara State & Anor (1992) 7 NWLR (Pt. 254) 412 SC; where Nnaemeka-Agu, J.S.C. observed –
“The fact that a document is called an agreement or estate contract will not exempt it from the requirement of registration if from its contents it is an instrument of grant What matters is the true import of the document”. (Italics mine)
In this case, the last paragraphs of the Appellants’ Exhibit F, reads as follows-
“That consequent upon this Agreement, the peace (sic) and parcel of the Land automatically become the unencumbered property of the said Guarantee (sic) and his/she (sic) heir or heirs any Next of kin or Representatives a legally binding for ever (sic). (Italics mine)
There is no question about it, and the lower Court was therefore right to find and to hold that Exhibit F is an “Instrument” within the provisions of the Law.
Once a document qualifies as an instrument, it remains ineffectual unless and until It Is registered – see Okafor V. Soyemi (2001) 2 NWLR (Pt. 698) 465.
An unregistered instrument can not be pleaded or tendered or produced in evidence. If it is admitted through an oversight or inadvertence or because no objection was raised, it still stands to be expunged since its exclusion is enjoined by law – See Savannah Bank V. Ibrahim (2000) 6 NWLR (Pt.662) 585; Reg. Trustees M.M.H.C V. Adeagbo (1992) 2 NWLR (Pt. 226) 690.
At the end of the day, Exhibit A – the Purchase Receipt issued to the Respondent by the Koyelu Family, was the only document standing and the lower Court was also right to hold that it did not require registration in law.
A receipt for the purchase-money of land is not an “instrument” but merely evidence that there was an agreement for sale and that the price had been paid by the purchaser – see Coker v. Ogunye, (1939) 15 W.A.CA 57; Yaya v. Mogoga (1947) 12 W.A.C.A. 132. And where a person pays for land and obtains a receipt, followed by going into possession and remaining in possession, equitable interest is created for him in the land – see Kachalla V. Banki (2006) 8 NWLR (Pt. 982) 364 where the Supreme Court held –
“In property law, many different question of priority may arise; these may concern rival conveyances of property, or as in this case competing interests in the holding of the right of occupancy. The fundamental rule is that competing interests will generally rank according to the order of their creation”. (Italics mine)
In this case, the lower Court held as follows on the issue of priority-
“In case I am wrong in the conclusion I have reached I would like to consider the issue of priority since all the parties, except the 5th Defendant, have traced their root of title to Koyelu Family. Exhibit A shows on the face of it that the transaction between the Plaintiff and Koyelu Family took place on 7/2/77 while the transaction between Koyelu Family and the 1st defendant took place on 13/4/77, I am satisfied that the Plaintiff had established the fact that she bought the land on the 7th February 1977. The grant to the 1st Defendant by a group within the Family excluding the head of Family took place in April 977 – two months after the sale to the Plaintiff; assuming – that the equities are equal, which is not conceded- the Plaintiff’s equity is first in time and it shall prevail. I should add at the time the group -granted the land in dispute to the 1st Defendant, Koyelu Family no longer has any interest it could validly vest in the 1st Defendant”.
Again, the lower Court is right; where two contesting parties trace their title in respect of the same piece of land to the same grantor, the applicable principle of law has always been that the latter in time of the two parties to obtain the grant cannot maintain an action against the party who first obtained a valid grant of the land from such a common grantor – see Olumide V. Ajayi, (1997) 8 NWLR (Pt. 517) 433 & Tewogbade v. Obadina (1994) 4 NWLR (Pt. 338) 326 SC; where the Supreme Court further explained as follows.
“The reason is obvious as a grantor having successfully divested himself of his title in respect of the disputed piece or parcel of land by the first grant would have nothing left to convey to a subsequent purchaser under the elementary principle of nemo dat quod non habet as no one may convey what no longer belongs to him”.
In any event, the Appellants’ claim to the land in dispute could not have prevailed over that of the Respondent because the simple truth is that the evidence in favour of the Respondent far outweighed their own, which was quite negligible to support their case, and the lower Court was right to hold –
“There is a lot of evidence led on their acts of possession but acts of possession alone will not be enough when there has not been satisfactory evidence of valid grant by Koyelu Family. The Defendants could have at feast called one of the Grantors to prove the grant but they did not; failure to call that evidence is fatal to their claim”.
Again, that is the law; if a party relies on, and pleads a grant as his root of title, he is under a duty to prove such grant to the satisfaction of the Court.
Other evidence of acts of possession after the grant will merely go to strengthen the grant. However, where, as in this case, the alleged grant has not been established, the bottom is knocked out of the Appellant’s claim – see Yusuf V. Adegoke (2001) 11 NWLR (pt, 1054) 332 SC & Odofin V. Ayoola (1984) NSCC 711, where Ayoola, JSC put it this way. “When his root ceases to stand, the stem and branches will fall with the root.” In other words, where the radical title pleaded is not proved, it is not permissible to support a non-existent root with acts of possession- it is not permissible to substitute a root of title that has failed with acts of possession which should have derived from that root, which is what the Appellants attempted to do in this case.
Apart from Exhibit F, which was expunged from the record, and rightly too, they did not adduce any other evidence to prove the alleged grant to the 1st Appellant, which would have acted as a mainstay for their acts of possession.
The outcome, as the lower court rightly held, is that they failed to discharge the evidential burden on them to prove that the grant to the 1st Appellant is better that the sale made to the late Madam Adebayo by the Koyelu family, and even though they alleged in paragraph 15 of their Amended Statement of Defence that the Respondent prepared the Purchase Receipt in 1990 and backdated it to 7thFebruary 1977 “for the purposes of the Land Use Decree of 1978”, I will agree with the lower Court and dismiss the allegation because –
“It is their duty to proffer evidence In support of that allegation; there is not an iota of evidence in respect of that averment. The legal consequence is that the averment goes to no issue”. (Italics mine)
I must also add that the allegation is one of a criminal nature and Section 138 (1) of the Evidence Act clearly stipulates that – “if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt”, In this case, the Appellants did not even adduce any evidence in proof of their averment in the said paragraph 15 not to mention proving same beyond reasonable doubt.
The Appellants further argued that the lower Court failed to draw the correct Inference from PW2’s evidence that her son fanned on the land in dispute while another person was given permission to pack broken vehicles on it, especially as they were not called to testify, which meant that the burden of proof placed on her by Section 135 of tile Evidence Act was not discharged; and that she only prayed the Court for a relief as follows – ” I claim against the Defendants according to my claim’; when the usual practice is for the Plaintiff to enumerate the specific relief claimed and to pray the Court accordingly. The Respondent however submitted that one solitary witness is enough If his evidence proves the essential issue in dispute and if he is believed, citing Adelunmola V. The State 19883 SC 114; that the Respondent satisfied the said Section 135; that the lower Court meticulously and painstakingly weighed the evidence of both parties on the imaginary scale before arriving at its conclusion in line with Mogaji v. Odofin (supra). and that the principle of law that evidence must be led to support averments does not require a Plaintiff to recite viva voce by heart each item of the reliefs he seeks in his pleadings, citing Jekpe & ors v. Alokwe & ors (2001) 19 WRN 105 SC.
I agree entirely with the Respondent. To start with, Section 179 (1) of the Evidence Act specifically provides that – “no particular number of witnesses shall in any case be required for the proof of any fact”, thus, a Plaintiff does not have to call a host of witnesses to prove his case; it suffices if he calls one credible witness whose evidence proves the essential issue in dispute, because there is no rule of law or evidence which requires that all persons who know about a particular fact must be made witnesses to testify on the issue before it could be proved – see Osazuwa V. Isibor (2004) 3 NWLR (pt 859) 16; Alao V. Akana (2005) 11 NWLR (pt, 935) 160 SC; & AD v. Fayese (2005) 10 NWLR (Pt. 932) 151. secondly, nothing would have been achieved by calling the said persons to prove acts of possession because it is now settled that where the root of title proved is Sale, the Plaintiff wins and there is therefore no further need to probe his acts of possession – see Balogun V. Akanji (1988) 1 NWLR (pt. 70)301, where Oputa, JSC said-
“The opinion held that every land case where the title is in issue the dictum in Ekpo v. Ita supra (that the onus is on the Plaintiffs claiming a decree of declaration of title to land to prove acts of possession and/or ownership) applies, is erroneous. That dictum will only apply where the Plaintiff’s root of title is acts of possession. It will not apply where the root of title pleaded is Sale and Conveyance nor will it apply where the root of title pleaded is Traditional History.
In either case acts of possession may be exercised subsequently and consequentially to the primary root of title relied upon. In such cases, once, and where, the primary root of title had been successfully established, the Plaintiff wins and there will be no further need to probe his acts of possession. One does not lose title to land which he bought and which was properly conveyed to him because he has not shown numerous and positive acts of possession in addition “:
In other words, the late Plaintiff was under no obligation to call her son or any other witnesses to prove acts of possession, as argued by the Appellants.
Finally, the law did not say that she must recite all her claims to win her case.
This was made clear in Jekpe V. Alokwe (supra) where Uwaifo, JSC said –
” It was – surprising that the trial Judge thought that if a Plaintiff did not in his oral evidence enumerate all the reliefs he sought he had not led evidence to support his claim and would therefore lose his action. –
– The itemization of the reliefs sought does not require – oral evidence for the purpose of applying the principle in Mogaji V. Odofin”.
Obviously, this issue must be resolved against the Appellants; the reasoning and conclusion of the lower Court cannot be faulted and must be applauded.
The Appellants’ 2nd Issue is hinged on the Court’s visit to the locus in quo, and here the onus is on them not only to identify the wrong procedure followed by the lower Court in conducting the visit to the locus in quo but also to show how the wrong procedure gave undue advantage to the other party- see Adesina V. Afolabi (2002) 13 NWLR (Pt. 783) 200. In this case, the Appellants say they have no quarrel with the motivation for the lower Court’s visit to the locus which it spelt out as follows in its Judgment at p. 100-
“Further hearing was adjourned to the locus in quo to clarify the seemingly conflicting evidence of the witnesses of the parties in respect of the situation of the ground at the site”. (Italics mine)
They however argued that there was nothing on the record to show places pointed out and everything else said by witnesses at the locus, which must be confirmed by evidence on oath, citing Section 77 (d) (ii) of the Evidence Act and Aguda’s Book on Evidence, and that the lower Court substituted its own observation thus placing itself in the position of a witness, which thereby occasioned a miscarriage of justice. The Respondent however submitted that the lower Court read the observation recorded at the locus and they all agreed that it was correct, therefore none of them can challenge it because parties are precluded by their acquiescence from later challenging procedure adopted by a trial Judge, citing Olubode v. Salami (1985) 4 S. C. 41. Yes, a trial Court on a visit to a locus in quo is enjoined to avoid putting itself in a position of a witness and arrive at a conclusion based upon its own personal observation, however, it is also correct to say that where witnesses have testified at the time the Court embarks on an inspection of the locus in quo and the sole purpose of the inspection is to clear doubt as to the accuracy of the pieces of evidence at the locus, there would be no need for oath-taking or cross-examination of the witnesses. see Baba-Iya V. Sikeli (2005) 3 NWLR (Pf. 968) 504 Okunrinmeta V. Agitan (2002) 2 NWLR (Pt. 752) 555.
Besides, the Supreme Court held in Orugbo V. Una (2002) 15 NWLR (pt.792) 175 SC; that where parties are given equal opportunity at the locus to show boundaries and landmarks, an Appellate Court will not throw out the findings of the trial Court merely because it failed to comply with technicalities here and there relating to the inspection; but it will interfere where they are not given equal opportunity to showcase their matter by evidence as pleaded.
In this case, the lower Court decided to visit the locus in quo after the Plaintiff had closed her case and DW1, a Licensed Surveyor had tendered Exhibit E, a Survey Plan he prepared, and replied as follows under cross-examination.
“I see Exhibit B (Plaintiff’s Survey Plan), I agreed with you that the land comprised in Exhibit B is similar to the land sandwiched between A and B in Exhibit E. The defendants were the persons who told me that they own the buildings in Areas marked A arid B. I did not see any wall fence surrounding the land between Areas marked A and B when I visited the land. I reject your suggestion that I did not visit the land. The buildings on A and B were at lintel level when I visited the site while the one between them was just at foundational level”.
The lower Court recorded its observation at the locus in quo. It reads in part-
“The entire land in which the three structures shown in Exhibit E has showed at its Ogunsana Avenue side has a wall fence which encompasses it. On its Olutayo Ogunyanwo Street side it has the High Tension wire and a disused Lagos State Coloured Bus outside the triangular fence on its left side. On one side of the wall fence on Ogunsona Avenue is an inscription “This land belongs to Madam Oredola Olusanya Jileya Ejaomi”. The Plaintiff pointed to a point on the said wall fence which she described as the point of a gate”.
In the Court, the record shows that “the observation was read and both counsel agreed that the record is correct”, which is nearly on all fours with Igwe v. Kalu (2002) 5 NWLR (Pt. 761) 678, where the Supreme Court held-
“It is permitted at the visit to the locus in quo for the learned trial Judge to take notes of inspection and ask questions about the features he had been told by witnesses – to exist on the land. The Court recorded all what transpired there and when. It reassembled, the notes were read to the hearing of all the parties and their respective counsel.
Both counsel said that the notes were correct. I have not seen anything wrong with this procedure”. (Italics mine)
Obviously, the decision I must take has been laid out for me; I do not need to say much except – this Issue must be resolved against the Appellants.
There was nothing prejudicial in the procedure adopted by the lower Court that could remotely lead to a miscarriage of justice against the Appellants.
The end result of the forgoing is that the Appeal totally lacks merit and it is hereby dismissed by me with N30, 000.00 costs in favour of the Respondent.
Other Citations: (2007)LCN/2529(CA)
