Jinadu Ajao & Ors V. Bello Adigun (1993)

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BELGORE, J.S.C. 

The appellants were plaintiffs before the High Court of Oyo State sitting at Ogbomosho and claimed against the respondent as defendant, damages for trespass to a piece of land at Ajeja (Adeja) Otafa, Ogbomosho and perpetual injunction to prevent further trespass on the same land by respondent. The appellants were suing on behalf of themselves and Alasa family.

At the end of all evidence after the pleadings by the parties, trial Judge dismissed the appellants’ case holding that they failed to prove their case. An appeal was thereupon lodged before Court of Appeal Ibadan Branch, which in a considered judgment allowed the appeal in part by holding that trial Judge erred in rejecting in evidence a document, marked “Exhibit A Rejected”, being a document setting out the holdings of each party after a previous case between the other parties on adjoining land.

The document seems to explain the portion of a wider land perhaps including part or whole of the land now in dispute. The trial Court held it was a document caught by Land Instruments Registration Law of Oyo State in section 2 thereof wherein it is provided as definition of registrable instrument as follows:

“….2 a document affecting land in the State whereby one party (hereinafter called the grantor) confers, transfers, limits, charges, or extinguishes in favour of another party (hereinafter called the grantee) any right or title to or interest in land in the State and includes –

(a) an estate contract;

(b) a certificate of purchase;

(c) a power of attorney under which any instrument may be executed:

(d) a deed of appointment or discharge of trustees containing expressly or impliedly a vesting declaration and affecting any land to which section 27 of the Trustee Law extends but does not include a will;”

Secondly, the trial Court was urged by the appellants to visit the locus in quo so as to have a proper grasp of the situation of the land in dispute. The Court rejected the application without any cogent reason. The Court of Appeal found these two matters if admitted into evidence might probably have tilted the decision the other way rather than the verdict of dismissal it returned and ordered a retrial. Kehinde Sofola, Esqr. SAN, for the appellants before us formulated three issues as follows for determination:

ISSUES ARISING FOR DETERMINATION IN THE APPEAL:

(1) In the appellants view the following issues arise for determination by the Supreme Court in this appeal.

(a) Whether the non-admission in evidence of the agreement dated November 9, 1956, and marked. A’ Rejected by the learned trial Judge was such that would properly have led to the Court below ordering a retrial of the whole suit.

(b) Whether the learned trial Judge was in error for refusing to accede to the request made by the Respondent to the learned trial Judge to make a visit to the locus in quo in all the circumstances of this case, and whether the Court below was right to have sent the case back to the High Court for trial de novo because of this.