Oba E.A. Ipinlaiye II V. Chief Julius Olukotun (1996)
LAWGLOBAL HUB Lead Judgment Report
IGUH, J .S.C.
In the Ekiti Judicial Division of the High Court of Justice, Ondo State, the plaintiff, who is now appellant, for himself and on behalf of the entire Igasi community instituted an action against the defendant, now respondent, for himself and on behalf of the entire Ahan community, claiming as follows-
“(a) Declaration of title to a piece or parcel of land situate, lying and being at ULOGO FARMLAND in IGASI-AKOKO Division.
(b) N600.00 general damages for trespass committed by the defendants and their agents on the said piece of land.
(c) An injunction restraining the defendants and/or their agents from committing further acts of trespass on the said piece of land.”
Pleadings were ordered in the suit and were duly settled, filed and exchanged.
At the subsequent trial, both parties testified on their own behalf and called witnesses. The learned trial Judge, Ogundare, J. as he then was, at the conclusion of the addresses of learned counsel for the parties inspected the land in dispute in the presence of the parties and their counsel.
The contest over the land in dispute is between the two communities of Igasi in Akoko Division and Ahan in Omuo-Ekiti Division, both of Ondo State. Both parties, for their root of title, relied on traditional evidence and claimed to be the original owners of the land in dispute from time immemorial. Each side claimed that his ancestor was the first person to settle on the land and that they had since been exercising various acts of ownership and possession thereon without let or hindrance from any quarters.
Both parties also claimed to have granted parts of the land in dispute to the other party on payment of rent. These claims were denied severally by each of the parties. Of significance, however, is the letter, Exhibit A, which admittedly was written by the plaintiff to the defendant. Its contents, inter alia, are acknowledgement by the plaintiff that members of his community were farming on the land in dispute which belonged to the defendant.
This letter, dated the 10th September, 1972, was written in Yoruba language and was tendered with its English translation, without objection, as Exhibit A, A1. It was tendered during the cross-examination of the plaintiff for the purpose of discrediting his entire testimony.
At the conclusion of hearing, the learned trial Judge after an exhaustive review of the evidence on the 7th day of July, 1978 found for the defendant and dismissed the plaintiff’s claims in their entirety.
Dissatisfied with this decision of the trial court, the plaintiff lodged an appeal against the same to the Court of Appeal, Benin Division. The said Court of Appeal, in a unanimous judgment on the 4th day of July, 1988 dismissed the appeal and affirmed the decision of the trial court.
Aggrieved by this decision of the Court of Appeal, the plaintiff has further appealed to this court. I shall hereinafter refer to the plaintiff and the defendant in this judgment as the appellant and the respondent respectively.
The parties, pursuant to the rules of this court, filed and exchanged their written briefs of argument. The seven issues identified on behalf of the appellant which this court is called upon to determine are as follows-
“2.1. Whether the appellant taking into consideration the onus of proof in civil cases has not proved his case
2.2. Whether Exhibit A was an admissible evidence in law
2.3. Whether the admissibility of Exhibit A under cross-examination was proper for the lower court to have heavily relied on the contents of same in determining the traditional evidence
2.4. Whether the learned Justices of the Court of Appeal were correct in law in holding that the contents of Exhibit A amounted to an admission by the appellant of the ownership of the land in dispute by the respondent in view of the appellant’s averments in his statement of claim
2.5. Whether the learned Justices of the Court of Appeal were not in error in holding that even though he (the learned trial Judge) did not proceed correctly in his locus in quo inspection, the observations of the learned trial Judge did not constitute a substitution of evidence in court with his personal observations, but were correct and do not appear to be capable of occasioning a miscarriage of justice
2.6. Whether the learned Justices of the Court of Appeal were not wrong in law in holding that the averment that some part of the land in dispute was granted to the respondent was not supported by evidence showing which part of the land was in fact so granted
2.7. Whether the learned Justices of the Court of Appeal misdirected themselves in law and on the facts in holding that there is no substance in the other grounds of appeal which were not considered at all by them”
The respondent, on the other hand, submitted five issues in his brief of argument as arising in this appeal for determination. These are –
“2.1. Whether this is a case in which judgment ought to have been in favour of the appellants in view of their disbelieved and unsupported claims.
2.2. Whether the trial Court was right to have admitted and made use of EXHIBIT “A and A1″.
2.3. Whether the Court of Appeal did consider all the grounds of appeal.
2.4. Whether the visit to locus in quo led to a miscarriage of justice.
2.5. Whether the issue of identity of land not raised in any of the two lower Courts could be raised in this Honourable Court.”
I have closely examined the issues set out in the respective briefs of the parties and it is clear to me that the five issues identified in the respondent’s brief are adequately covered by the issues raised in the appellant’s brief which I find sufficiently comprehensive for the determination of this appeal. I shall, therefore, adopt in this judgment, the set of issues formulated in the appellant’s brief for my consideration of this appeal.
At the oral hearing of the appeal, learned counsel for the appellant, H. A, Lardner Esq, S.A.N. was absent but had written to the court apologising for his absence and indicating that he was fully adopting his written brief on behalf of the appellant. Chief J.O.A. Adebo, for his own part, similarly indicated that he was relying on his written brief on behalf of the respondent. I will examine issues 2, 3 and 4 together as they all revolve around the admissibility in evidence, effect and the weight of Exhibit A, A1 in the proceedings.
The contention of the appellant on these issues is that the document, Exhibit A, A1 not having been pleaded by the respondent in his statement of defence was inadmissible in evidence. It was argued, relying on the decision in N.I.P. Co. Ltd. v. Thompson Organisation Ltd & others (1969) NMLR 99 at 103-104 and Idahosa v. Oronsaye (1959) SCNLR 407 4 F.S.C. 166 at 179 that it did not matter that the appellant did not object to the admissibility of the document at the time it was being tendered. The submission was that the document having been wrongly received in evidence ought not to have been acted upon by the courts below as it could not be regarded as legal evidence. The decisions in Ajayi v. Fisher 1 F.S.C. 90 and Owonyin v. Omotosho (1961) 1 All NLR 304 at 308 were cited in support of this submission in the appellant’s brief. Learned appellant’s counsel then stressed the evidence in respect of matters not pleaded goes to no issue at the trial and that the court should not allow such evidence to be admitted in the proceedings. In this regard, he called in aid the decision of this court in Ogboda v. Adulugba (1971) 1 All NLR 68. He concluded by submitting that the appellant’s admission that he wrote the letter, Exhibit A, A1 in 1972 could not be said to amount to an admission of the respondent’s ownership of the land in dispute.
Learned counsel for the respondent in his brief argued that the trial court was right to have admitted Exhibit A, A1 in evidence. He submitted that the Court of Appeal was equally right to have upheld the admissibility of the Exhibit. He argued that the fact in issue in the case was the ownership of the land in dispute. On this, he claimed that the respondent copiously pleaded, not only ownership of the land in dispute in his community but that the respondent had granted permissions to the appellant’s people to cultivate the land as tenants on payment of Ishakole or land rent. He contended that the respondent was only obliged to plead material facts, such as he had done in the present case but not the evidence in proof of such facts. In particular, he argued that the respondent did not have to plead each and every fact with which to discredit or disprove the appellant’s case.
Learned counsel next pointed out that the appellant, when Exhibit A was tendered in evidence, did not object to its admissibility. On the contrary both learned counsel for the parties jointly engaged themselves in the interpretation of Exhibit A from Yoruba into the English language. The English translation was further tendered and admitted in evidence with the consent of both counsel as Exhibit A1. It was argued, relying on the authority of Chukwura Akunne v. Matthias Ekwuno & Ors. (1952) 14 WACA 59 that the Court of Appeal would not entertain argument on evidence being inadmissible when no objection had been made to it at the trial. It was finally submitted on behalf of the respondent that where documentary evidence is admissible under certain conditions and it is admitted with procedural defect but with the consent of the parties or without objection, a trial court may justifiably make use of it in arriving at a decision in a case.
Now, Exhibit A is a letter dated the 18th September, 1972 written under the hand and letter head of the appellant to the respondent – the Alahan. It is written in the Yoruba language but its English translation is Exhibit A1. I think it is convenient at this stage to set out the contents of Exhibit A1 fully that is to say –
“Greetings from me. It was quite a long time we saw last. I was very happy when I saw the people you sent to me in respect of my people working on your land.
I had rebuked my people very much and have questioned them as to their failure to inform me before going on to the land to work; that I could have sent them to approach you with respect for land to cultivate from your land.
Therefore, father, long live the Oba. May the Almighty God grant our Children long lives. May your towns continue to progress. I appeal to you strongly to forgive us this wrongful act committed by us this year. Next year, I will warn them to go to another farmland to cultivate.”
From the evidence before the trial court, Exhibit A, A1 was written by the appellant to the respondent in respect of the land in dispute. There can be no doubt that it contains a measure of admission on the part of the appellant over the ownership of the land in dispute by the respondent. It clearly admits that the appellant’s people were working on the respondent’s land.
This land, on the evidence before the court, is the land in dispute. It is also admitted that the appellant rebuked his people who cultivated the said land without obtaining the prior permission of the respondent. The appellant appealed to the respondent to forgive the appellant’s people for this wrongful act of trespass on the respondent’s land that material year, namely 1972. I think I should add that Exhibit A, A1 was written ante litem motam by the appellant to the late Chief Omonusi, the Alahan of Ahan, respondent’s late predecessor in office as Alahan who was originally sued as the defendant in this action.
It ought to be noted that Exhibit A, A1 was originally tendered during the cross-examination of the appellant to discredit his evidence that he did not write any letter to the Alahan in 1972. The relevant evidence of the appellant under cross-examination in this regard thus –
“Cross-examination by Chief Adebo: ………………………… I did not write any letter in 1972 to the late Chief Omonusi (the Alahan of Ahan, respondent’s late predecessor in the office of Alahan who was originally sued). I see this letter: the signature on it is mine. I admit I wrote the letter Chief Adebo seeks to tender dated 18/9/72 and written in Yoruba.
Chief Ogunleye does not object. Letter admitted in evidence and marked Exhibit A. I wrote the letter to the Alahan.” (Words in brackets supplied)
This was subsequently followed by a lengthy cross-examination on the document, the purpose of which, inter alia, was to raise the document to the status of an admission against interest which the respondent was entitled to rely upon to defeat the appellant’s claim. The real issue, however is whether or not the document is admissible in law. The main contention of the appellant is that the document, not having been specifically pleaded, was improperly admitted in evidence and consequently could not constitute legal evidence. He argued that it made no difference that no objection was raised against its admissibility by the appellant at the time it was tendered during the trial.
It is a cardinal rule of pleadings that material facts, to be admissible in evidence, must be pleaded. As a result, neither party will be allowed to raise at the trial of a suit, an issue of fact which he has not pleaded. See Domingo Paul v. George (1959) 4 F.S.C. SCNLR 510 (1959), Ajoke v. Amusa Oba & Another (1962); (1962) 1 SCNLR 137 1 All NLR 73 etc. Where therefore, such facts are not pleaded, (they are in law inadmissible in evidence and, where wrongly admitted, go to no issue and should be discountenanced as irrelevant to the issues properly raised by the pleadings. See J.O. Idahosa and Another v. D.N. Oronsaye (1959); (1959) SCNLR 407 4 F.S.C. 166, N.I.P.C. Ltd. v. Thompson Organisation Ltd & others (1969) 1 All NLR 138, George v. U.B.A. Ltd. (1972) 8-9 SC 264 at 274, Kalu Njoku and others v. Ukwu Eme and others (1973) 5 Sc. 293, Oke-Bola and others v. A.J. Molake (1975) 12 SC 61 at 62 etc. Documentary evidence, however, needs not be specifically pleaded to be admissible in evidence so long as facts and not the evidence by which such a document is covered are expressly pleaded. See Alhaji Babatunde Thanni & Another v. Sabalemotu Saibu & Others (1977) 2 SC 89 at 114, U.A.C. Ltd. v. Saka Owoade 13 WACA 207. Consequently, where the contents of a document are material, it shall be sufficient in any pleading to aver the effect thereof as briefly as possible without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material, such as in cases of libel. In the present case, it is the case of the defendant/respondent, and this is copiously pleaded all through his Statement of Defence, that the land in dispute did not belong to the appellant but to the defendant/respondent in whom the same is vested under native law and custom. The respondent pleaded that his people are the traditional owners of the land. More specifically, paragraphs 13 and 14 of the Statement of Defence aver as follows-
“13. The plaintiff and the Igasi people have come to beg for land in the area in dispute to make farms from the defendant and his people and some Igasi people had paid Ishakole (rent) to the defendant on the land in dispute.
- The plaintiff and his people also approached the Olomu to appeal to the defendant to give them land for cultivation in the area in dispute which is the subject matter of this case.”
It seems to me indisputable that the above paragraphs of the respondent’s Statement of Defence pleaded the facts that the appellant’s people farmed on the land in dispute as tenants after appealing to the respondent’s people for parts thereof. These same material facts constitute, in the main, the contents of Exhibit A, A1. The above notwithstanding, the Court of Appeal held as follows –
“It is factually true that the document was not pleaded and that it was elicited in the course of cross-examination.”
With profound respect, I am unable to accept the view that the document, Exhibit A, A1, can be said not to have been pleaded as was held by the Court of Appeal. This is because the material facts covered by the exhibit were expressly and fully pleaded by the respondent. I think that the Court of Appeal was in error when it held that the contents of Exhibit A, A 1were not pleaded in the respondent’s Statement of Defence and that the document would be inadmissible in evidence for the purpose of disproving the appellant’s case. In my view, the facts covered by Exhibit A, A1 having been pleaded, the document was rightly admitted in evidence by the trial court both for the purpose of establishing the respondent’s case and disproving the appellant’s case on the one hand, and discrediting the testimony of the appellant under cross-examination, on the other hand.
The Court of Appeal, however, upheld the admissibility of Exhibit A, A1 quite rightly, in so far as it was for the purpose of discrediting the evidence of the appellant that he did not write a letter to the Alahan in 1972. That court went further to hold that the conduct of the appellant before the trial court by not only failing to raise an objection to the admissibility of the document for any other purpose than discrediting the testimony of the appellant but helping in the translation of Exhibit A into the English language, would make it almost unconscionable to uphold his objection to the admissibility of the document. In this regard, I must say that I find myself in complete agreement with the Court of Appeal in this view.
In the first place, it ought to be emphasized that Exhibit A, A 1 was tendered in evidence by the respondent without any objection by the appellant. In general, where a party in a civil proceeding has consented to a procedure at the trial which is neither unconstitutional nor a nullity but merely wrong or irregular and infact suffers no injustice and no miscarriage of justice is thereby occasioned, it would be too late to complain on appeal that the wrong procedure was adopted simply because he lost the case in the trial court. See Akhiwu v. The Principal Lotteries Officer, Mid-Western State of Nigeria and Another (1972) All NLR (Pt. 1) 229 at 238, Ayanwale and others v. Atanda & Another(1988); (1988) 1 NWLR (Pt. 68) 22. 1 NSCC 1 at 9-10,(1988) 1 NWLR (Pt. 68) 22; Okwechime v. Philip Igbinadolor (1964) NMLR 132. In the present case, Exhibit A, A 1 when it was tendered was not objected to by the appellant, it was fully cross-examined upon and its admissibility was not put in issue at any stage of the trial. The document itself does not belong to the category which by law, is inadmissible in any court of law and in all circumstances although I will later in this judgment deal more fully with this aspect of the matter. It suffices at this stage to say that the court below was right in overruling the appellant’s submission on the inadmissibility of the document. See Chukwura Akunne v. Matthias Ekwunno (1952) 14 WACA 59 at 60.
I should, however, not be understood as propounding that once a document is received in evidence without objection by a party, then such a party is forever automatically estopped, even in the appellate court, from raising the issue of its inadmissibility. I make no such proposition. If a document is unlawfully received in evidence in the trial court, an appellate court has inherent jurisdiction to exclude and discountenance the document even though learned counsel at the trial court did not object to its going into evidence. See Mallam Yaya v. Mogoga (1947) 12 WACA 132 at 133. Accordingly, although a document was unlawfully received in evidence without objection by or on behalf of the appellant, it would still be open to the appellant in the appellate court, particularly where such an appellant has infact suffered injustice as a result, or a miscarriage of justice is thereby occasioned, to object to it since it is the duty of the appellate court to exclude inadmissible evidence which was erroneously received in evidence during the trial. See Ajayi v. Fisher (I956) SCNLR 279; 1 F.S.C. 97, Esso West Africa Incorporated v. Alli (1968) NMLR 414 at 423 etc.
In this connection, it has to be stressed that a court of law is expected in all proceedings to admit and act only on evidence which is admissible in law. Consequently if a court inadvertently admits inadmissible evidence, it has a duty, generally, not to act upon it. Where, however, inadmissible evidence is tendered, it is the duty of the other party or counsel on his behalf, to object immediately to the admissibility of such evidence. But where such other party fails or neglects to raise any objection as aforesaid, the trial court in civil cases may (and in criminal cases must) reject such evidence exproprio motu. On appeal, however, and provided the evidence complained of is one which by law, is admissible, under certain conditions, and the other party did not object to its admissibility., at the trial court, or, by implication, consented to its admissibility or, the evidence was legitimately used, say for the purpose of cross-examination (although the conditions precedent to its admissibility were not complied with), he cannot be allowed to raise any objection as to its admissibility in the Court of Appeal. In other words, in the cases where the evidence complained of is not, by law and in all circumstances inadmissible, a party may by his own conduct at the trial be precluded from raising objection to such evidence on appeal. In this category of civil cases, if the evidence was admitted in the trial court without objection or by the consent of the parties or was used by the opposite party (e.g. for the purpose of cross-examination) then it would be within the competence of the trial court to act on it and the Court of Appeal will not entertain any complaint on the admissibility of such evidence. In this class of cases, Cotton, L.J. In Gilbert v. Endean (1878) 9 Ch. D. 259 at 269 succinctly explained the situation as follows:-
“But I must add this: where in the court below, the evidence not being strictly admissible, not being that upon which court can properly act, if the person against whom it is read does not object, but treats it as admissible, then before the Court of Appeal, in my judgment, he is not at liberty to complain of the order on the ground that the evidence was not admissible.”
I am in respectful agreement with the above observations of Cotton, L.J. and fully endorse them as the correct position of the law. See too Chuhvum Akunne v. Matthias Ekwuno and others (1952) 14 WACA 59, Salau Olukade v. Abolade Alade (1976) All NLR 57 at 61-62 and Chief Bruno Etim and others v. Chief Okon Udo Ekpe & Another (1983) 1 SCNLR 120.
Where, however, the evidence complained of is by law inadmissible in any court and in all circumstances, it ought never to be acted upon by any court of law and it is immaterial that its admission in evidence was by the consent of the other party or his default in raising objection at the proper time to its admissibility. In this latter category of cases, the evidence cannot be acted upon even if the parties admitted it by consent and the Court of Appeal will entertain a complaint on the admissibility of such evidence by the trial court although the evidence was admitted in the trial court without objection. See too Salau Olukade v. Abolade Alade (1976) All NLR 57 at 68-629, Owonyin v. Omotosho (1961) 2 SCNLR 57 (1961) 1 All NLR 304 at 308, Yassin v. Barclays Bank D.C.O (1968) 1 All NLR 171, Alashe v. Olori Ilu (1964) 1 All NLR 390 at 397 etc.
Turning now to the facts of the present case, Exhibit A, A1, even if the appellant’s contention that it was not pleaded and that it is therefore inadmissible is sustained, and I have already pronounced this submission as misconceived, the document is not by law and in all circumstances inadmissible. All that the appellant contended is that the document would have been ordinarily admissible if it was pleaded. In other words, the appellant’s argument is not that Exhibit A, A1 is by law and in all circumstances inadmissible. It is that the document is admissible if the condition that it is pleaded was complied with. But as I have already observed, no objection as to the admissibility of Exhibit A, A1 was raised by the appellant or counsel on his behalf at the time it was tendered before the trial court. As a matter of fact, the document was received in evidence with the consent of the appellant’s counsel. It was fully cross-examined upon and the appellant’s learned counsel went further to help in the translation of Exhibit A into the English language (Exhibit A1).
It is the cardinal rule of evidence and practice in civil as well as in criminal cases that an objection to the admissibility of a document sought to be tendered in evidence is immediately taken when it is offered in evidence. Barring some exceptions where by law certain documents are rendered inadmissible (consent or no consent of the parties notwithstanding) for failure to comply with the provisions of such law (such as the provisions of Section 15 of the Land Instruments Registration Act) the rule remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document or other evidence, the document or evidence would be admitted and the opposing party cannot afterwards be heard to complain about its admission. See Chief Bruno Etim and others v. Chief Okon Ekpe and Another, supra at page 36-37. In all the circumstances of Exhibit A, A1, I am in complete agreement with the Court of Appeal that the document was admissible in law and was properly received in evidence by the trial court.
Still on the admissibility of Exhibit A, A1, attention may further be drawn to sections 199,209 and 210 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 which provide as follows –
“199. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters, in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
“209. A witness may be cross-examined as to previous statements made by him in writing relative to the subject matter of the trial, without such writing being shown to him, but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him:
Provided always that it shall be competent for the court at anytime during the trial, to require the production of the writing for its inspection and, the court may thereupon make use of it for the purpose of the trial, as it shall think fit.”
“210. The credit of witness may be impeached in the following ways by any party other than the party calling him or with the consent of the court by the party who calls him –
(a) ………………
(b) ………………
(c) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.”
(All Italics supplied for emphasis)
A close study of the above sections of the Evidence Act clearly discloses that the admission in evidence, under cross-examination, of Exhibit A, A1 by the trial court was completely permissible and unimpeachable as a statement previously made in writing by the plaintiff to contradict or discredit his evidence on oath before the court. In my view, it is beyond question that in so far as the document was to discredit the evidence of the appellant that he did not write a letter to the Alahan in 1972 and to impeach his claim of ownership of the land in dispute, it was clearly admissible in evidence and was properly so admitted.
There is finally the provisions of Order 14 Rule 15 of the High Court (Civil Procedure) Rules, 1977 of Ondo State which inter alia stipulate as follows –
“The defence of a defendant shall not debar him at the hearing from disproving any allegation of the plaintiff not admitted by the defence, or from giving evidence in support of a defence not expressly set up by the defence, except where ………………….
In this regard the Court of Appeal commented thus –
“This rule appears to provide a very wide umbrella for the admission of documents not previously pleaded, and the submission that Exhibits A and A1 are admissible under it would appear to be well taken since those exhibits seek to disprove the allegation that the appellant owns the land in dispute, which averment is denied by the respondent. The circumstances under which their admissions, can be excluded under the exception clause in the Rule, do not here apply”
There can be no doubt that the above Rule is as wide as it is all embracing and I agree entirely with the court below that it provides a wide cover under which Exhibit A, A1 became admissible in the proceeding since it sought to disprove the ownership of the land in dispute by the appellant, a claim set up by the said appellant in his pleadings and expressly denied by the respondent.
In the result, it seems to me that from whatsoever angle issues 2, 3 and 4 are examined, the answers thereto must be in the affirmative and I so hold.
The 5th issue is whether the court below was not in error when it held that any irregularity in the visit to the locus in quo by the court did not occasion a miscarriage of justice in the case. In this regard, the Court of Appeal had observed –
“Even though he did not proceed correctly in his locus in quo inspection, the observation of the learned trial Judge did not constitute a substitution of evidence in court with his personal observations, but were correct and do not appear to be capable of occasioning a miscarriage of justice.”
The point cannot be over-emphasized that the purpose of an inspection of a locus in quo by a court of law is not to substitute “the eye for the ear” but rather to clear any doubts or ambiguities that may arise in the evidence or to resolve any conflict in the evidence as to physical features. See Olubode v. Salami (1985) 2 NWLR (Pt. 7) 282 at 295, Joseph Olusanmi v. Dayo Oshasona (1992) 6 NWLR (Pt 245) 22. Where there is conflicting evidence from the plaintiff and the defendant as to the existence or non-existence of a physical feature on a land in dispute, it seems to me clear that the trial Judge, where there exists some doubt in his mind as to where the truth lies ought to visit the land in dispute with a view to resolving the issue one way or the other. See Chief Nwizuk v. Chief Waribo Eneyok (1953) 4 WACA 354 at 355,Abigail Briggs v. Nda Briggs (1986) 5 NWLR (Pt. 41) 362, Seismograh Service Ltd v. Akporovo (1974) 6 SC 119 etc.
As was pointed out, quite rightly, by the court below, it is preferable that a visit by the court to the locus in quo should be on the application of one or both of the parties and agreed to by all concerned. This procedure, however, should not prevent the trial court from deciding suo motu to visit the locus in quo without the prior consent of the parties if, in its view, such a visit is necessary for arriving at a correct and judicious decision on the case before it. Indeed in Nwizuk case, where there was conflicting evidence on the issue whether a house was damaged as a result of siesmic operations or not, this court had cause to observe as follows
“This in our view, is a case where the learned trial Judge ought to have visited the locus in quo in view of the conflict in the evidence of the parties. We are satisfied that on the conflict of the evidence before him, it was necessary that the conflicting issues should have been resolved by a visit to the scene. The failure of the learned Judge to do so in this case has caused to be undecided the issue as to whether these buildings were ever damaged at all.”
There can be no room for any doubt, therefore, that a trial court will be perfectly in order where, in the face of conflicts in the evidence of the parties, it decides suo motu to visit the locus in quo with a view to clearing any doubts or ambiguities that may arise in the evidence or to resolve any conflict in the evidence as to physical features as aforesaid. The appellant’s complaint to the effect that the decision and subsequent visit to the locus in quo in the present case was made suo motu by the learned trial Judge and not at the instance of the parties or their counsel cannot, therefore, be any matter of great moment, particularly as the trial Judge gave adequate and cogent reason for the visit. This, he observed, was for the purpose of resolving “the conflict in the evidence of the plaintiff on the one hand, and the defence on the other, as to the existence of cocoa and coffee plantations on the land in dispute ” I think the learned trial Judge was quite right in his decision suo motu to visit the scene without an application for such a visit coming from the parties or counsel on their behalf.
The one point that needs be stressed, however, is that in all cases of such visits, it is desirable that the purpose should be noted in the court’s record book before the inspection is undertaken and all parties, with their counsel should be invited to attend as it must not be lost sight of that the visit is a continuation of the court hearing of the case. This procedure was fully complied with by the learned trial Judge in the present case.
It seems to me also advisable that the visit be undertaken before the final addresses of counsel so that the evidence obtained therefrom may be the subject matter of comment by counsel if they so desire. In the instant case, the visit was undertaken after counsel’s addresses. But it is on record that after the inspection, counsel for both parties indicated that they did not intend to call any further evidence nor did they intend to address the court any further. This note was not challenged by either of the parties. The ideal practice, also, is for the court to record notes of the inspection in its record book. This, the learned trial Judge failed to do although he clearly set out this observation at the locus in quo in his judgment. I think it should be restated that absence of detailed record of the inspection of a locus in quo is not ipso facto fatal to the validity of an otherwise faultless judgment. See Chief Aaro Nwizuk v. Chief Waribo Eneyok, Musa Maji v. Shafa and Briggs v. Briggs, supra. The court however, is bound to record the fact of the inspection. See too Dza v. Komla (1956) 1 WALR 145 at 146; Kofi Badoo v. Ampong 12 WACA 439, Agbafun Ejidike v. Obiora 13 WACA 270 etc. And where the trial Judge merely stated in his judgment his observations at the locus in quo but did not record the note of inspection, the observations of the learned trial Judge in the judgment must be taken as the correct account of what transpired at the inspection. See Abigail Everett Briggs v. Nda Briggs (1986) 5 NWLR (Pt. 41) 362. Seismograph Service Ltd. v. Akporovo 6 (1974) SC 119.
In the present case, the learned trial Judge carefully set out his observations at the locus in quo in his judgment. None of these observations was questioned or attached as incorrect by either of the parties in the court below or before this court and I entertain no doubt that they must be taken as the accurate account of what transpired at the scene.
The real point, in my view, is that in all civil cases, where a visit to the locus in quo is made, the trial Judge should be careful to avoid placing himself in the position of a witness and arriving at conclusions based upon his personal observations of which there is no evidence in support upon the record . In other words, it is not open to him to substitute the result of his own observation for the sworn testimony nor to reach conclusions from his observations at the scene in the absence of any sworn testimony to the existence or non-existence of the facts he had observed. To do so would tantamount to converting himself as a witness at the trial, a position which he cannot, by law, assume and if his decision is materially affected by such conclusions, this may result in the reversal of his judgment or the order of a new trial.
The trial Judge must therefore arrive at his decision not on the impressions from the visit to the locus in quo of which there is no sworn evidence in support but upon its impression from the sworn evidence in court thus avoiding substituting
“the eye for the ear” as earlier on observed. See Dza v. Komla (1956) 1 WALR 145 at 146, Chief Aaron Nwizuk v. Chief Waribo Eneyok, Kofi Baddo v. Ampong, Agbafuna Ejidike and others v. Christopher Obiora, supra etc etc.
This proposition of law was succinctly put in the case of London General Omnibus Co. v. Lavell (1901) 1 Ch. 135 at 139 where Lord Alverstone, C.J. explained as follows –
“I have never heard it said and, speaking for myself, I should be very sorry to endorse the idea that a Judge is entitled to put a view in place of the evidence. A view, as I have always understood, is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply the evidence.”
I agree entirely with the above proposition of law and fully endorse the same. I will now examine the findings of the learned trial Judge at the locus in quo complained of. These findings, limited to three, are as follows –
(1) That there were cocoa, coffee and kolanut plantations growing on the land in dispute as claimed by the defendant/respondent but denied by the plaintiff/appellant.
(2) That there were infact no existing camps of the appellant’s alleged tenants on the land in dispute as claimed in their plan, Exhibit B but denied by the respondent.
(3) That Agbemopon rock said by the appellant to be within the land in dispute was infact outside it.
In this regard, it ought to be noted that conflicting oral evidence had been given in court about the existence and/or location of the three physical features concerned whereupon the learned trial Judge found it necessary, in the interest of a just determination of the issues, to visit the locus in quo and use his own observations to resolve the conflicts. See Agbafuna Ejidike and others v. Christopher Obiora, Chief Aaron Nwizuk v. Chief Waribo Eneyok etc. supra. In the former case, the West African Court of Appeal had held thus –
“When there is conflicting evidence as to physical facts. I have no doubt that he (meaning the trial Judge) may use his own observations to resolve the conflict……….. ”
(Words in brackets supplied)
The learned trial Judge was, in my view, in order by his visit to the locus in quo and I can find no error on his part which is capable of occasioning any miscarriage of justice in the case. Issue number five must accordingly be resolved against the appellant.
I will now consider issues 1 and 6 together. These deal practically with whether or not the appellant was able to prove his case against the respondent. It is not in dispute that the appellant’s case was based on traditional evidence that they were the original settlers on the land and on acts of possession and ownership of the land in dispute. It is equally clear that on the facts found by the learned trial Judge as affirmed by the Court of Appeal, the appellant abysmally failed to establish his claim under both heads. Quite apart from the admission in Exhibit A made ante litem motam by the appellant conceding ownership of the land to the respondent, the evidence of the appellant and his witnesses was so thoroughly discredited and unreliable that it was disbelieved by the trial court. The learned trial Judge painstakingly considered the evidence of the appellant and his witnesses one after the other and summarised as follows:-
“In conclusion, I find the evidence of the plaintiff so unreliable and so unsatisfactory that I cannot rely on it in finding in favour of the plaintiff……… I do not believe the traditional evidence adduced nor do I believe that Igasi community have ever exercised acts of ownership on the land in dispute prior to this action. Although the defendant’s traditional evidence is equally unimpressional, I am however satisfied that, on the evidence especially in the face of Exhibit A, the Ahan people have been farming on the land in dispute for fairly long time, I do not believe the evidence of the plaintiff and his first witness that Ahan community ever paid Ishakole to Igasi town …………….. ………………………… In the net result, I find that the plaintiff has failed to prove his title to the land in dispute either by traditional evidence or by evidence of acts of ownership, numerous and positive enough as to warrant the inference that he is the owner of the land. The claim for declaration of title must, therefore, fail”
Earlier on in his judgment, the learned trial Judge had considered and rejected the plaintiff’s claim that his community granted a part of the land in dispute to the defendant for farming purposes. Said the court –
“It is plaintiff’s case that his community granted a part of the land in dispute to the defendants to farm when they moved from Oke Ahan to join Igasi community at the present site of Igasi. After having carefully considered the evidence of the plaintiff, I must, with regret, remark that the plaintiff has not been candid with the court.”
The plaintiff’s claims for damages for trespass and perpetual injunction were also dismissed.
In the face of the above findings which, in my view, are clearly damaging and fully supported by evidence on record, the Court of Appeal had no option but to dismiss the appellant’s appeal. I have myself given very close consideration to the matters raised on issued 1 and 6 and must resolve the same against the appellant.
Turning finally to issue 7, the contention of the appellant is that the court below misdirected itself in law by holding that there was no substance in the remaining grounds of appeal filed and thereby failed to consider them. In the first place, the Court of Appeal is obliged to consider issues raised in an appeal and not the grounds of appeal filed.
This is because it is firmly settled that it is the issues raised from the grounds of appeal that are argued and not the grounds of appeal. See Chinweze v. Masi (1989) 1 NWLR (Pt. 97) 254, Western Steel Works Ltd v. Iron and Steel Workers Union of Nigeria (1987) 1 NWLR (Pt. 49) 284 at 304, Adelaja v. Fanoiki (1990) 2 NWLR(Pt. 131) 137 at 148, Anie v. Uzorka (1993) 8 NWLR(Pt. 309) 1 at 17 etc.
The court below was therefore not in error if it confined itself only to the issues raised in the appeal. Secondly, it cannot be disputed that the four issues raised by the appellant for the determination of the Court of Appeal were fully and exhaustively considered by the court below and I can find no reason for the present complaint of the appellant. Thirdly it is not every slip in a judgment, and I can find no substantial one in the judgment appealed against, that will result in the appeal being allowed.
It is only when such a slip or error is substantial in that it has occasioned a miscarriage of justice that the appellate court is bound to interfere. See: Onajobi v. Olanipekun (1985) 4 SC (Pt.2) 156 at 163. Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267 at 282, Azuetonma Ike v. Ugboaja (1993) 6 NWLR (Pt. 301) 539; Abiodu Amurati v. Madam Agbeke (1991) 5 NWLR (Pt. 89) 1 (1991) 6 SCNJ 54 at 64 etc. The appellant, has not been able to establish any miscarriage of justice or that the court below would have found otherwise had there been no error as alleged by him. In the circumstance issue 7 must also be resolved against the appellant.
All the issues having been resolved against the appellant, this appeal accordingly fails and the same is hereby dismissed with costs to the respondent against the appellant which I fix at N1000.00
SC.207/1992
