Opufaa Smithers Briggs V. Abigail Everett William Briggs (1992)
LawGlobal-Hub Lead Judgment Report
O. BABALAKIN, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Enugu Division dated the 22nd day of July, 1986 dismissing the defendant/appellant’s appeal against the judgment of Port Harcourt High Court delivered on 12th of December, 1974.
The facts and background of the case are that the Respondent as Plaintiff in the Port Harcourt High Court took action against the appellant as defendant for the following reliefs:
“(i) 3500 damages for trespass committed by the Defendant on the Plaintiff’s land which was the subject matter in the Kalabari Native Court Civil Suit No. 108/1961, Degema Magistrate’s Court Appeal Suit No. D/7, A/61 and in the Port Harcourt High Court Appeal Suit No. P/9.N1964.
(ii) A perpetual injunction restraining the Defendant, his agents and or servants from committing any further trespass on the said land.”
In the Port Harcourt High Court pleadings were ordered, filed and exchanged. After reviewing the evidence led by the two parties the learned trial Judge on 12th December, 1974 gave judgment in favour, of the plaintiff/respondent for N400.00 as damages for trespass and ordered that the defendant/appellant be restrained from entering the land of the plaintiff/respondent clearly demarcated on their plan Exh. K. from henceforth.
Dissatisfied with this judgment the defendant/appellant appealed to the Court of Appeal, Enugu Division where on 22nd day of July, 1986 his appeal was dismissed and the judgment of Port Harcourt High Court was confirmed.
Still dissatisfied with this judgment the defendant/appellant has further appealed to this court.
In this court briefs of arguments were filed and exchanged. In the brief of argument filed on behalf of the defendant/appellant the following issues for determination were formulated:
“(i) Is the Court of Appeal right to hold that the statement of a Judge in a “solemn” judgment must be taken as correct of what happened and therefore final, in relation to a visit to the locus in quo, even where there was no evidence from the Respondent on the observations of the Judge
(ii) Is the Court of Appeal right to hold that because the trial Court saw and heard the witnesses and visited the locus in quo, the Plan Exhibit K correctly portrays the Plaintiff’s case and that Exhibit L distorts the picture
(iii) Is the Court of Appeal right to hold that judgment in Native Court Suit 108/61 Exhibit A delivered on 10/6/61 was later in time to Exhibit G delivered on 8/11/63.”
The Respondent formulated the following issues for determination in the Respondent’s Brief:-
“1. Whether the procedure adopted by the trial court during and after the visit to the locus in quo amounted to a departure from established procedure and occasioned a miscarriage of justice.
- Whether the appellants were not bound by the previous decisions over the area now in dispute.”
Both parties adopted their respective briefs of argument at the hearing of this appeal before us.
The submission in the defendant/appellant’s brief are that the evidence at the locus in quo is testimonial evidence and that in visiting the locus in quo, the trial court must observe the conditions stipulated in Section 76 of the Evidence Act, particularly proviso (ii) to section (a) which reads:
“Oral evidence must, in all cases whatever be direct –
(a) If it refers to a fact which could be seen. it must be the evidence of a witness who says he saw that fact;
PROVIDED that
…………………………………………………………….
(ii) 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. 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.”
(Italics mine by way of emphasis).
That by the provisions of the above section of the Evidence Act it means that any material statement made in the course of the visit to the locus in quo must be recorded and the opposing party given the opportunity of testing that statement if need be by cross-examination. The case of Awoyegbe & anor. v. Chief Ogbeide (1988) NWLR (Pt.73) 695 at 709 was cited in support of this proposition of the law.
That the learned trial Judge must not refer in his judgment to certain facts of which there is no evidence on record, but to facts which he observed on the occasion of his visit and drew certain conclusions therefrom. He relies on the case of Ejidike & Ors. v. Obiora (1951) 13 WACA 270, as authority for this proposition.
That by the visit of the learned trial Judge to the locus in quo and by his findings there, in the circumstances of this case he substituted the result of his own observation for the sworn testimony of no witness and he made use of his finding in arriving at his conclusion when he said “I am satisfied therefore that exhibit K correctly portrays the Plaintiff’s case and that exhibit L tendered by the Defendant distorts the picture”. It was further contended in the said Appellant’s brief that cases of Siesmograph Services Ltd. v. Aporuovo (1974) 6 SC 119 and Nwizuk v. Eneyok (1953) 14 WACA 354 relied upon in upholding the judgment of the learned trial Judge by the Court of Appeal did not say that the Court will regard its observations at the locus in quo as real evidence to which no evidence was given and act on it to the prejudice of a party nor will Nwizuk v. Eneyok case apply where the statement made by the trial court in his “solemn” judgment was not a correct account of what occurred because no witness had given evidence. That if the observations of the learned trial Judge were expunged from the record there will be no finding of acts of trespass by the trial Court as confirmed by the Court of Appeal and to that extent the observations of the learned trial Judge have occasioned a miscarriage of justice. That in the circumstances this Court should set aside the judgment of the trial court and order a retrial of the case.
That the facts of this case come within the special circumstances where this, Court will disturb the concurrent findings of the two lower courts because such concurrent findings of facts here occasioned a miscarriage of justice and a serious violation of some principles of law or procedure which shows that the said findings are erroneous.
The brief further contended that the area alleged trespassed upon was not conclusively proved.
After referring to the evidence of P.W.1 and P.W.3 and P.W4 on the printed record of proceedings as well as plans exhibits K and L tendered in the proceedings the brief concluded that the area trespassed upon was not proved.
Finally it was contended in the brief that where there are conflict in consistent judgments of Courts with equal jurisdiction over the subject matter in dispute the rule is that the last decision operates as a bar – see Makanjuola v. Khalil (1957/58) WRNLR 82 at 84; (1958) SCNLR 193 Seriki v. Solaru (1965) NMLR 1 at 2 and Cardoso v. Daniel (1986) 2 NWLR (Pt.20) 1 at 38, 47.
That on the facts of this case it was erroneous for both the trial Court and the Court of Appeal to hold that the judgment of the High Court on 13/11/64 on appeal from native Court Suit 108/61 was later in time than the judgment in appeal No. D/5A/1960 exhibit dated 8/11/63 which limited the area of land granted to the Respondent to 18ft by 16ft 3 inches because the High Court judgment of 13/11/64 confirms the original judgment in Suit 108/61 delivered on 10/6/61.
The brief concluded that we should allow the appeal. In the brief of argument filed on behalf of the plaintiff/respondent the contentions of learned counsel for the plaintiff/respondent are that the position in this case was that after the addresses of counsel, the learned trial Judge adjourned for judgment to 12th November 1974. When the trial resumed on that day the judgment was not delivered and the judge made the following notes at page 33 lines 19-25 of the printed record of proceedings:
“I propose to visit the locus in quo for the purpose of locating the building of the defendant complained about on the land trespassed: also to know what is the area claimed by the plaintiff. It will be necessary for surveyor of both parties to be present. The inspection is to take place on the 30th November, 1974 at 10 a.m.”
At page 39 lines 12-15 the learned trial Judge recorded parties present as follows:
“Both parties and their Counsel were present together with the Surveyor of the plaintiff. The defendant’s Surveyor did not attend in accordance with my orders”.”
The learned trial Judge then gave reasons for his decision to visit the locus in quo as being (a) the denial of the defendant that he had not built on the area of land claimed by the plaintiff and (b) because of conflict in the plan filed by the parties.
At the end of the visit, the learned trial Judge stated his findings at P.39 lines 16 to 31 thus:
“I found that the defendant had erected a concrete building measuring 36ft by 8ft within the portion of land verged pink on Exhibit “K” and this building extends further to an area of land supposed to belong to Karibo Briggs who was not at the site during the inspection. Karibo’s land on which defendant’s building is erected extends 27ft 8 inches beyond the area of the plaintiff’s land. From the zinc building of the plaintiff to the end of the area verged pink west ward is 55ft”. The defendant also occupied thatch house of 3 rooms measuring approximately 17ft in length which is contiguous with the zinc building of the late Everett Briggs occupied by the plaintiff. There is an open space between the thatch building of the defendant measuring 18ft by 20ft and the building of Israel Bob-Manuel which is outside the area in dispute””…
The learned trial Judge went to clear conflict in the evidence led and plans tendered by the parties which is the right thing for him to do under the circumstances. He relied on the case of Seismograph Services (Nig.) Ltd. v. Esiso Akperuovo (1974) 6 SC 119 at 128.
That so long as the Appellant did not contend that the Judge’s observations were contrary to what the parties who were present with their solicitors observed at the locus in quo, there was no basis for the defendant/appellant’s complaint. That what the learned trial Judge did is covered by decisions in the cases Ejidike & Ors. v. Obiora (1951) 13 WACA 278 and Nwizuk & Ors. v. Eneyok & Ors., (1953) 14 WACA 254. That there was no basis for sending the case for retrial in the High Court as submitted by the defendant/Appellant in his brief of argument.
That by the state of pleadings and evidence led in this case it was shown that the judgment in Suit No. 108/61 was binding on the defendant/Appellant and that this judgment was later in time because its proceedings terminated in exhibit on 26th November, 1964. That the area trespassed upon by the defendant/Appellant was within the area of land measuring 70ft by 24ft granted to the plaintiff/Respondent by the said judgment which judgment is binding on the defendant/Appellant. That the whole proceedings taken as a whole shows that the established procedure adopted in this case has not resulted in a miscarriage of justice and this Court should not disturb the concurrent findings of fact by the two lower courts.
He urged us to dismiss the appeal.
The visit to the locus in quo by the trial court came about under the following circumstances. After the addresses of counsel the learned trial Judge adjourned for judgment to 12th November, 1974. When the trial resumed on that day the judgment was not delivered and the Judge made the following notes at page 33 lines 19 to 25 of the printed record of proceedings:
“I propose to visit the locus in quo for the purpose of locating the building of the defendant complained about on the land trespassed; also to know what is the area claimed by the plaintiff. It will be necessary for surveyor of both parties to be present. The inspection is to take place on the 30th November, 1974 at 10a.m.”
At page 39 line 12 to 15 of the record the learned trial Judge recorded as follows:
“Both parties and their Counsel were present together with the Surveyor of the plaintiff. The defendant’s Surveyor did not attend in accordance with my orders”.
Before the learned trial Judge stated his findings during the visit to the locus in quo, he restated his reasons for deciding to visit the locus in quo at page 38 lines 30 to 31 and page 39 lines I to 12 as follows:
“Further, following the denial of the defendant that he had not built on the area of land claimed by the plaintiff and the conflict in the plans of the parties Exhibits “K” and “L” and the submission of Mr. Whyte that the Plaintiff’s Plan Exhibit “K” does not clearly show that the trespass complained of is within the area marked pink on Exhibit “K”. I was obliged at the request of Mr. Whyte to travel to Abonema which is the locus in quo on the 30th November, 1974. I made it clear that the purpose of visit to the locus in quo was to locate the building of defendant if any within the area of the land claimed by the Plaintiff. Also to know the exact area claimed by the Plaintiff having regard to the judgment of the Native Court in Suit No. 108/61″.
At the end of the visit the learned trial Judge at page 39 lines 16 to 31 of the printed record of proceedings stated his findings, as follows:
“I found that the defendant had erected a concrete building measuring 36ft by 8ft within the portion of land verged pink on Exhibit “K” and this building extends further to an area of land supposed to belong to Karibo Briggs who was not at the site during the inspection. Karibo’s land on which defendant’s building is erected extends 27ft 8 inches beyond the area of the plaintiffs land. From the zinc building of the plaintiff to the end of the area verged pink west ward is 55ft. The defendant also occupied a thatch house of 3 rooms measuring approximately 17ft in length which is contiguous with the zinc building of the late Everett Briggs occupied by the plaintiff. There is an open space between the thatch building of the defendant measuring 18ft by 20ft and the building of Israel Bob Manuel which is outside the area in dispute”.
The two main purposes of this visit were to find out the area of land for which the plaintiff/respondent’s late husband got judgment in Suit No. 108/61. I pause here to say that Exh. A tendered in the proceedings conclusively shows the area for which judgment was given in the said suit No. 108/61 from the following extracts if the judgment. The said Exhibit is at page 42 to 57 of the printed record of proceedings. The claim read as follows:
“Claim: The Plaintiff’s Claim against the defendant is for a declaration of title to all that piece and parcel of land at Ikata Briggs Gate known as Oruwaribeyemieari-Kiri being the property of Plaintiff’s grand mother.
This piece of land is being claimed by the defendant as belonging to his father Erise.
The area of Oruwaribeyemieari-Kiri measures 70ft by 24ft out of this area the Plaintiff specifically claimed and was granted a declaration over an area measuring 18ft by 16ft 3 ins, in Suit No. 254/59.
The plaintiff therefore claims a declaration of title on whole area of Oruwaribeyemieari Kiri. Value of land estimated at 310.”
The most important evidence of the plaintiff in respect of the claim is found at page 43 lines 5 to 8 of the printed record of proceedings as follows:
“In my previous action in Suit No. 254/59 I did not sue for the whole land in dispute. It was a mistake on my part. I am now claiming the whole piece of land:
Judgment was given for this claim at page 56 lines 26 to the end to page 57 lines 1 and 2 as follows:
“Judgment: The plaintiff is granted the title of the land in dispute as claimed by him; measuring 70ft by 24ft. The defendant to pay 35 land inspection fee in one month. The defendant to pay 34 costs to plaintiff at once. The defendant to pay 33.3/97 cost of action at once. Exhibit returned to the owner.”
The only thing that could be said in favour of the visit to the locus in quo is that the learned trial Judge was able to see on the ground what he heard in evidence and saw on documents tendered.
On the second purpose of the visit to the locus in quo there was evidence on record that the defendant/appellant trespassed on the plaintiff/respondent’s land. What the visit enabled the learned trial Judge to do was to see the extent of the trespass physically on the ground. In sum, what the learned trial Judge did by his visit to the locus in quo was to enable him to clear doubt that he felt arose in evidence from the totality of the evidence about those two issues before him: In my view he has taken the right step. In similar circumstances in the case of Seismograph Services (Nig) Ltd v. Esiso Akporuovo (1974) 6 SC. 119 at page 128 this court stated that certain issues can only be resolved by a visit to the scene. Sowemirno J.S.C. (as he then was) stated at page 128 thus:
“At this stage, the learned trial Judge was faced with two conflicting evidence as to whether or not the buildings were standing or not.
The learned trial Judge could have resolved this conflict by a visit to the site at Umolo Village.”
It must be noted that the defendant/appellant is not disputing the contents of the observations of the learned trial Judge at the locus in quo witnessed by all the parties. All he is complaining about is that the learned trial judge recorded in the judgment certain facts of which there was no evidence judgment certain facts of which there was no evidence on record and that the procedure stipulated in Section 76 of the Evidence Act about the visit to locus in quo particularly proviso (ii) to Section(a) quoted above has not been complied with.
In the first place all the facts recorded in the judgment are based on evidence adduced in this case, In the second place no evidence taken at the locus in quo that calls for the court re-convening for cross examination of the opposing party as clearly no evidence was taken at all at the locus in quo. All evidence are already on record. What the learned trial judge did was to confirm what is already on record with actual physical inspection in keeping with the old adage that seeing is believing. He substituted the eyes for the ear.
The complaint that the learned trial Judge did not record what he observed at the locus in quo before using it in the judgment is not sustainable in view of the decision in the case of Chief Nwizuk v. Chief Eneyok (1953) 14 WACA 254. In that case the plaintiff claimed a declaration of title, damages for trespass and an injunction in respect of 18 islands in the Supreme Court of Port Harcourt (as it was then known).
The learned trial Judge after hearing evidence of both parties before delivering judgment embarked upon an inspection of the area in dispute after the conclusion of counsel’s address. When the parties realised that the court, at that stage, was about to substitute the eye for the car in the reception of the evidence it appears that both parties were not prepared to deceive the court further as to certain oral testimony already given regarding parts of the land in dispute. At the end of the visit to the locus in quo the learned trial judge concluded as follows:
“The inspection has shown me forcibly how much all the evidence of litigants in land cases can he relied upon by the court. Both sides in this case have lied to me, the Ogoni side (plaintiffs) far more horribly that the Adonis (defendants)”.
The plaintiffs claims were dismissed. The plaintiffs appealed to the West African Court of Appeal and one of the grounds of appeal was that the learned judge erred in law in taking into consideration statements made during (he inspection of the land in dispute without recalling those who made such statements for further examination. It was submitted that after the inspection evidence should have been taken on oath touching the above matter and that in the absence of such evidence of oath the learned judge permitted his mind to be charged with matters not properly proved and to the disadvantage of the appellants. The West African Court of Appeal held that these contentions disregarded the fact that the court did not cease to be a court because it was on an inspection away from a court house. The statements were as much oral admission by a party in court as if they had been made in a court room. They were matters before the court which the trial judge could take into consideration without the observations of Section 179 of the Evidence Ordinance which provides that oral evidence should, with specified exceptions, be taken on oath. It was also submitted that a separate record or note of the inspection should have been made by the trial court and that there should have been a record of the language in which the parties, being illiterates, addressed the court so that it may appear that the learned trial judge was satisfied that the statements were correctly conveyed to him. The court pointed out that in making these two statements learned counsel for the appellants explained that he did not impugn the learned judge’s narrative on what took place. That indeed he could not do so as no affidavit in contradiction of the incidents described has been filed but that he pointed out that the practice of the court is to record the note of an inspection at the first opportunity. The court then held that “while the usual practice may be as stated it is not necessary in every stage nor is the absence of such record necessarily a fatal defect. In the present case we consider that statements such as these by a judge in a solemn judgment of the court must be taken to be a correct account of what occurred and therefore final.”
It cannot therefore be said that by his visit to the locus in quo the learned trial judge substituted his own observation for the testimony of witnesses on the facts or this case. What can be said is that the visit put to rest matters about which conflicting evidence were led in this case beyond the realm of peradventure.
Finally from the above analysis I hold that the visit to the locus in quo by the learned trial judge has not engendered a miscarriage of justice in this case. The next issue for determination proffered in the defendant/appellant’s brief is an interesting one to wit:
“Is the Court of Appeal right to hold that because the trial court saw and heard the witnesses and visited the locus in quo the Plan Exhibit K correctly portrays the Plaintiff’s case and that Exhibit L distorts the picture”
The simple answer is that since one of the reasons of the visit to the locus in quo by the learned trial judge was to clear doubt about evidence of the trespass to the respondent’s lands which the Plan Exh. K produced by the plaintiff/respondent and Exhibit L the Plan produced by the defendant/appellant purported to show, and the learned trial judge on visit to the locus in quo found that the Exhibit K represented the true position and that Exhibit L did not and the Court of Appeal found that this finding of fact was properly and rightly made, the Court of Appeal was right to hold as it did. An examination of these exhibits and evidence led in support confirms the trial court’s and the Court of Appeal’s findings on them.
The last issue for determination raised in the defendant/appellant’s brief is put thus:
“Is the Court of Appeal right to hold that judgment in Native Court Suit 108/61 Exhibit A delivered on 10/6/6 I was later in time to Exhibit G delivered on 8/11/63.”
The position about the two Exhibits as it appears on the printed record of proceedings was ably analysed by the learned trial judge at page 35 line 19 to page 38 line 30. This was put in an abridged form by the Court of Appeal at page 243 line 20 to page 244 line 9 thus:
“Question number two relates to what the appellant referred to as inconsistent judgments of the Native Court in respect to the area of land claimed. It was contended in appellant’s brief that where there are conflicting judgments over the same subject matter in dispute the rule is that the later judgment operates as bar. It was submitted that judgment in Suit No. 018/60 Exhibit A was delivered on 8/11/63 limiting the right of respondent to 18ft x 16ft 3 ins, and that in the circumstance the later judgment in law prevails. It was further submitted that respondent’s claim for area of 70ft x 2ft was yet to be decided and that the conclusion of the learned judge was wrong when he said:
“With respect it is quite clear from his set out of the previous record of proceedings that the judgment of the Native Court awarding the plaintiff a larger portion of land in dispute was subsequent to the decision of the Magistrate Udo Aboh and cannot in law restrict the claim to 15ft x 16ft.”
But thanks to the illuminating arid masterly exposition of the sequence of the Native Court Suit in respondent’s brief showing that the final decision in Suit No. 108/61 was in fact later in time than the decision in exhibit G by the Magistrate on 18/11/63. This is so because after the Native Court had awarded a larger area in Suit.108/61 to the respondent, the appellant embarked upon series of attempts to set aside this judgment but failed. See exhibit B and C. The final attempt was made in the High Court before Butuel J. who dismissed the appeal on 13/11/64 leaving unimpaired the award of 70ft x 24ft by the Native Court. so that the decision of 8/11/63 which limited the award to 18ft x 16ft 3 ins was not later in time than the decision on 13/11/64 which ended the journey of Suit 108/61. This decision is binding on the parties. The answer to question two therefore is that the High Court Judgment on 13/11/64 on appeal in Native Court Suit 108/61 is later in time.”
I agree with this conclusion by the Court of Appeal having read the trial judge’s painstaking analysis. The answer to this issue is that the Court of Appeal was right to hold that judgment in Native Court Suit 108/61 Exhibit A delivered on 10/6/61 is later in time than Exhibit G. It must be borne in mind that the purpose of instituting suit 108/61 Exhibit A was for the plaintiff/respondent’s late husband to claim the whole piece or parcel of land covering 70ft by 24ft instead of the area of 15ft by 16ft 3 ins. previously awarded to him in the litigation contained in Exh. G as I have shown when discussing the first issue for determination in this appeal.
On the whole this appeal fails and 1 hereby dismiss same with N1,000.00 costs to the plaintiff/respondent. The judgment of the lower court delivered on the 22nd day of July 19S6 is hereby affirmed.
Other Citation: (1992) LCN/2488(SC)
