Jonathan Enigwe & Ors Vs Kenneth Akaigwe (1992)

LawGlobal-Hub Lead Judgment Report

L. UWAIS, J.S.C

Two actions were filed in the High Court of Onitsha as suits Nos.0/18/71 and 0/133/71 by the parties in this appeal. In suit No. 0/18/71 Michael Akaigwe on behalf of himself and the members of Akaigwe family sued Jonathan Enigwe and 7 others in their personal capacities, claiming declaration of title to a piece of land called “Okpuno Maduabuchi”, N200.00 damages for trespass and a perpetual injunction restraining the defendants, their servants and or agents from further trespass to the land in question as shown in a survey plan No.SE/EC/27/71. In suit No.0/133/71 Molokwu Enigwe and Godfrey Udoka for themselves and on behalf of the members of Ezuka sub-family of Umueze family of Alor sued Kenneth Akigwe and 5 others personally, claiming against them declaration of title to a piece of land called “Eziama Ogbuka Eneluwa” shown in survey plan No.EC/165/71; N200.00 damages for trespass; forfeiture and perpetual injunction.

After pleadings were filed in each case, suit No.9/18/71 came up on the 3rd day of May, 1972. Mr. Anah appeared for the plaintiffs and Mr. Obianyo for the defendants. The latter stated that the fanner had written him agreeing that suit No.0/133/71 be consolidated with suit No.0/18/71. Thereupon Egbuna J, declared the suits consolidated as earlier agreed by counsel to the parties. Hearing of evidence began on the 18th day of September, 1980 before F.O. Nwokedi, J., who found that although the parties called the land in dispute different names, the land was one and the same in the dispute.

The plaintiffs case is that the land in dispute was possessed by their father Akigwe Metu, as owner, from time immemorial and that they inherited it from him. The plaintiffs contended that the defendants who originally descended from a woman who begat their (defendants’) ancestor through illicit association with an unknown man could not by Alor native law arid custom possibly own any land in Alor. The plaintiffs alleged that the defendants were known as “Umunwayim” due to their dubious paternity and origin. The word “Umunwayim” literally means children of a woman without a known father. The plaintiffs claimed that the portions of the land in dispute occupied by the relations of the defendants were granted to the former by the plaintiffs’ father. One of such relations was called Maduabuchi. Another relation of the defendants who was a brother of Maduabuchi called Okeke Enyi was similarly granted a portion of the land in dispute to live on. The conditions for both grants was that if both grantees died without surviving male issues, the land would revert to the plaintiffs’ family. Maduabuchi died leaving a son called Ikediobi who predeceased his uncle – Okeke Enyi – without any issue, Okeke Enyi later died also without any male child. Consequently, the land in dispute reverted to the plaintiffs’ family.

The plaintiffs claimed that they had since remained in possession of the land in dispute and that the defendants did not disturb them. In addition, portions of the land in dispute had at various times been granted to other people by the plaintiffs on payment of tribute to the plaintiffs’ family. It was in 1968 that the defendants invaded the land in dispute and reaped economic fruits and claimed the land as theirs (defendants). The claim was resisted by the plaintiffs who made report to Nnewi Police. Members of the defendants’ family were arrested by the police and prosecuted for stealing and were convicted by the Magistrate’s Court, though they were released on appeal to the High Court. In 1969, the dispute between the plaintiffs and the defendants was referred to the tribunal of Umunambu Village by the then Civil Defence Committee. Both the plaintiffs and the defendants were represented by their members before the tribunal. Witnesses gave evidence before the tribunal which inspected the land in dispute. The tribunal gave its verdict in favour of the plaintiffs.

The defendants’ case is that the land in dispute was originally the family land of Umu Ezuka, which is bounded in the north by the compound of Michael Akaigwe (1st plaintiff) which is located on a piece of land granted to Metu (who was the grandfather of the 1st plaintiff) by Ohazume who was a member of the defendants’ family. Emeluwa inherited the land in dispute from his father Egbuke. Emeluwa had two sons, namely, Maduabuchi and Okeke Enyi. On his death the sons inherited his land. Later both Maduabuchi and Okeke Enyi died without surviving sons and their lands devolved on Ikejiofor, Ejikwalu and Obazulume who were brothers of Emeluwa. The defendants are the descendants of Ikejiofor. The portion of land now occupied by the plaintiffs was in fact granted to Metu’s wife by the defendants ancestor for the purpose of farming. Metu was the grandfather of the defendants. In 1969, the Civil Defence Unit in the defendants’ area referred their dispute with the plaintiffs to the meeting of Umunambu Village for settlement but the meeting did not take place because of a dispute over the choice of a chairman to preside over the meeting. As a result the defendants walked out of the proposed meeting and the settlement did not occur.

After addressed by counsel to the parties and a visit to locus in quo, the learned trial judge found for the plaintiffs by accepting their traditional evidence and holding that there was a meeting of the Umunambu Village in which the defendants participated and that the arbitration at the meeting went in favour of the plaintiffs against the defendants. Judgment was, therefore, entered for the plaintiffs, by the learned trial judge, in the following terms –

“On the whole, I prefer the story of the plaintiffs to that of the defendants as to the origin of the land in dispute. In view of the foregoing, I hold that the plaintiffs have proved their case. There will therefore be judgment for the plaintiffs in respect of Suit No. 0/18/71. The plaintiff’s cross-action in (Suit No.0/133/71) is hereby dismissed.”

The defendants, being aggrieved by the decision, appealed to the Court of Appeal complaining inter alia that the visit to locus in quo took place after final addresses by the parties and after judgment had been reserved by the trial judge. It was also canvassed that the trial court was wrong in holding that the settlement by the meeting of Umunambu Village was binding on the parties.

In dismissing the appeal the Court of Appeal (Coram: Aseme, Aikawa and Sulu-Gambari, J.J.C.A.) held, per Aseme, J.C.A., first that what happened at the locus in quo did not occasion miscarriage of justice so as to disparage the judgment of F.G. Nwokedi, J. Secondly, that the settlement award made by the meeting of Umunambu Village was not illegal by reason of the fact that the dispute by the parties was referred to the Umunamba Village meeting by the Civil Defence Committee which existed in Biafra at the time of the Nigerian Civil War.

It is against that decision that the appellants brought the appeal in this Court raising the following questions for determination –

“(i) Whether the judgment of the High Court given as it was in matters which were improperly consolidated for trial ought to have been upheld by the court below.

(ii) Whether, in the absence of an application by either party to visit the locus in quo the trial, judge is entitled to decide to make such visit.

(iii) If the answer to Question (ii) is in the negative what is the effect of the decision by the trial judge to visit the locus in quo. suo motu.

(iv) Whether the Court of Appeal ought to have upheld the complaints of the appellants on the issue of the alleged findings or award of the arbitration,”

The respondents accepted the issues for determination as formulated by the appellants. Canvassing the first question, Chief Williams, learned Senior Advocate, for the appellants, accepted the accuracy of the statement by Aseme, J.C.A. on consolidation of the parties actions to the effect –

“…..the learned Judge consolidated the two suits without considering the prerequisites of an order for consolidation. In practice where it is apparent from the pleadings that the primary issues involved are between the two plaintiffs consolidation cannot be ordered. ”

The submission is based on the provisions of paragraph 4/9/1 of the 1988 Edition of the White Book, where it is stated that –

“Two actions cannot be consolidated where the plaintiff in one action is the same person as the defendant in another action, unless one action can be ordered to stand as a counter-claim or third party proceedings in another action.”

Consequently, it was contended that the order for consolidation of the two actions for trial was improper and ought not to have been made. It was then submitted that the error in consolidating the actions had vitiated the trial.

In reply, Mr. Anyamene, learned Senior Advocate, for the respondents, submitted that the quotation from paragraph 4/9/1 of the White Book was taken out of con. He referred to the statement from which the quotation was extracted, which reads in full as follows –

“The main purpose of consolidation is to save costs and time, and therefore it will not usually be ordered unless there is some common question of law or fact bearing sufficient importance in proportion to the rest of the subject matter of the actions” to render it desirable that the whole should be disposed of at the same time. Where this, is the case, action may he consolidated where the plaintiffs are the same and the defendants are the same or where the plaintiffs or defendants or all are different.

There may, however, be further circumstances which will militate against an order being made…. Two actions cannot be consolidated where the plaintiff in one action is the same person as the defendant in another action…………..

Mr. Anyamene referred further to Order 11 rule 7 of the High Court Rules, Cap. 61 of the Laws of Eastern Nigeria, 1963 applicable to the case and submitted, relying on the decision in Prince Adigun & Ors. v. A.-G. of Oyo State & Ors.,” (1987) 2 NWLR (Pt.56) 197, (1987) 4 S.C 272 at 345, that where our Rules of Practice cover a given situation it is not necessary to have recourse to English rules of practice.

Now, in my opinion, the starting point in dealing with the issue should be the specific provisions of the High Court Rules, Cap.6 of the Laws of Eastern Nigeria, 1963. By Order II rule 7 thereof –

“Causes or matters pending in the same Court may by order of the Court be consolidated, and the Court shall give such directions as may be necessary with respect to the hearing of the causes or matters so consolidated:’

It is very clear from these provisions that the only condition imposed by the Rule for the consolidation of actions is that the cases to be consolidated must be pending in the same court. Furthermore, by the Rule, it is discretionary for the court to grant application for consolidation. There is, therefore, a marked, difference between the provisions of Order 11 rule 7 of the High Court Rules, Cap. 61 and those of Order 4 rule 10 of the Rules in England (see paragraph 4/10/1 of the 1979 White Book) which reads –

“10. Where two or more causes or matters are pending in the same Division, then if it appears to the Court-

(a) that some common question of law or fact arises in both or all of them, or

(b) that the rights to reliefs claimed therein are in respect of or arise out of the same transaction or series of transactions, or

(c) that for some other reason it is desirable to make an order under this rule the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until after the determination of any other of them,”

It can now be seen that in interpreting the provisions of Order II rule 7 extreme care must be taken to avoid interposing on the provisions the conditions laid down by the English Rules which are indeed alien to Order II rule 7. In addition, the fetter under section 16 of the High Court Law, Cap. 61 of the Laws of Eastern Nigeria, 1963 which reads –

“16. The jurisdiction vested in the Court shall be exercised (as far as regards practice and procedure) in the manner provided by this Law and in any other written law or by such rules and orders of Court as may be made pursuant to this Law or any other written law, and, in default thereof: in substantial conformity with the law and practice for (sic) observed in England in the High Court of Justice, on the thirtieth of September, 1960.”

and the decisions of this Court in Laibru Ltd. v. Building and Civil Engineering Contractors (1962) 1 All N.L.R. 387 (1962) 2 SCNLR 118 and Prince Adigun’s case (supra) at p.345, must be borne in mind also.

It is pertinent to observe that the High Court Rules of erstwhile Western and Mid-Western Nigeria contained no provisions for consolidation of actions by order of Court but disjoinder of actions. It was legitimate, therefore, in cases coming from those States to have recourse to English Rules on the issue of consolidation.

In the light of the aforesaid, I am of the opinion that a consolidation of actions may be ordered either by consent of the parties or as a matter of expediency. If the judge before whom the cases are to be tried feels that costs and time will best be saved by hearing the cases together – see Obiekweife v Unumma, (1957) 2 F.S.C. 70 at 71, (1957) SCNLR 331 and Diab Nasr v. Complete Home Enterprises (Nigeria) Ltd., (1977) 5 S.C. 1 at 11. In the present case it was with the consent of the parties that the two actions were consolidated. Therefore, none of the parties can be heard to resile from the consolidation by arguing that it was wrongly or erroneously ordered, as learned counsel for the appellants has submitted – see Ojiegbe & Anor. v Okwaranyia & Ors., (1962) 1 All N.L.R. (Pt. 4) 605 at p. 608.

On question for determination No. (iv) the appellants complaint is that there was no voluntary submission by the parties to the arbitration conducted by the community of Umunambu Village. To support the contention, the appellants’ brief of argument referred to the testimonies of Felix Udeze (P.W.2) and Benson Onyebuchi (P.W.3) who said that it was the Civil Defence Committee that referred the dispute to the Village Meeting for settlement. It was, therefore, argued that both the trial Court and the Court of Appeal erred when they held the award or the decision in the arbitration was binding on the parties in the dispute.

In reply, the respondents argued in their brief of argument that it was not the case of the appellants in either the High Court or the Court of Appeal that they did not submit to arbitration whatsoever, but that there was an arbitration and they walked out of the arbitration. It is then submitted on the authority of Kwasi & Ors. v. Larbe, (1951) 13 W.A.C.A. 76, that walking out of an arbitration by a party does not prevent an award to be made by the tribunal. And where such award is made it is binding on the party that walked out. Attention is then called to exhibit K, which is a letter which was written by Mr. G.N. Udoka, an Inspector of Police, to the Umunambu Village meeting protesting to the meeting about a fine imposed on him by the former, and referring to two previous occasions when the meeting fixed but postponed its delivery of verdict. As Mr. G.N. Udoka is a member of the appellants family, it was argued that that fact established that the appellants’ had voluntarily submitted to the arbitration.

I agree with the point made by the respondents that it was not the appellants’ complaint in the lower courts that they did not submit to arbitration but rather that after submitting to the arbitration they walked out of it before the verdict was given.

The lower courts, in fact, found that there was submission to the arbitration by the appellants and that they did not walk out of it. These are findings of fact and as they were concurrently made, it is now settled that this Court will not interfere unless exceptional circumstances are shown for us to do so. However, no such circumstances have been shown here by the appellants. Moreover, the argument that there was no submission by them to the arbitration is a new point, for which no leave of this Court had been obtained to argue it. It should, therefore, be discountenanced. In any case, the concurrent findings of the lower courts are that the appellants did participate in the arbitration.

Finally, the appellants contend that the trial judge decided suo motu to visit the locus in quo after the parties had concluded their addresses. Relying on the provisions of section 76 of the Evidence Act, Cap.62 of the Laws of Nigeria, 1958, it is submitted by the appellants that a view or inspection of locus in quo is part of the evidence in a case. It is then argued that only the parties to a case can call for the view or inspection and that the court cannot decided on its own to make the inspection. The cases of Seismograph Services (Nig.) Ltd. v. Ogbeni, (1976) 4 S.C. 85 (1976)1 N.M.L.R. I98atp.215 line 13 to p.219 line 9 per Obaseki, J.S.C.,Goold v. Evans, Co.(1951) 2 T.L.R. 1189 per Denning L.J. (as he then was) and Tito v Waddell (1975) 1 W.L.R. 1303 per Mcgarry, J. (as he then was), and In re Enoch & Zarethsky, Bock & Co’s Arbitration (1910) 1 K.B. 327, have been cited. It is further contended that a judge has no power suo motu to call a witness or tender any evidence at all in a case that is before him. It is then submitted that the evidence on the locus in quo was recorded and submitted that it could hardly be regarded as a record of proceedings since there was no indication in the record as to who called the witnesses at the locus in quo which the learned trial judge took into consideration was for that reason inadmissible. The appellants also attacked the manner in which what happened at the locus in quo or why they were called. Furthermore, the parties had not been given the opportunity of hearing the additional evidence through the witnesses nor were they given the opportunity to cross-examine them and comment on the visit as laid down in the case of Seismograph Service Ltd. v. Onokposa, (1972) 1 All N.L.R. (Pt.!) 343 at 352 per Sowemimo, J.S.C. (as he then was).

The respondents contend in their brief of argument that the appellants did not, in the Court of Appeal, raise the point that the trial judge by visiting the locus in quo without application by either party erred in law. The point is, therefore, new and no leave of this Court had been obtained to argue it.

This contention was replied to in the reply brief jointly filed by Chief Williams, SAN and Chief Onyiuike, SAN on behalf of the appellants. They referred to ground of appeal 2 (a) in the Court of Appeal and issue No.(b) (i) which was formulated in that Court in support of the ground of appeal as well as the oral argument canvassed on behalf of the appellants. I am satisfied that the point arose at the Court of Appeal and is not, therefore, a new point to call for our leave before it could be argued.

In further reply, the respondents argue that it is not correct to say, as contended by the appellants, that except on the application of a party a trial court cannot suo motu visit a locus in quo since there is nothing in section 76 (ii) of the Evidence Act, Cap. 62 to support that proposition. Nor is it correct to say that a trial judge cannot make a visit to locus in quo after final addresses because that was what happened in Arutu v. The Queen (1959) SCNLR 1574 F.S.C 66 and Nwizuk & Ors. v. Eneyok & Ors. (1953) 14 W.A.C.A. 354 and was approved by the Federal Supreme Court and the West African Court of Appeal, respectively. With regard to the conduct of a visit to locus in quo, the respondents submitted that the locus classicus as stated in the case of Ojiegbe & Ors. v. Okwaranyia & Ors. (supra) at 608 is the judgment of the West African Court of Appeal in Nwizuk & Ors. (supra). It is further argued that in the present case the correct procedure at the scene of the locus in quo had been followed as shown in the judgment of the trial court. Attention was then drawn that the appellants made the following statement in the Court of Appeal on the visit to the locus in quo –

“There was nothing in the visit to the locus in quo that could have improved the case of the respondents; on the contrary, the visit to the locus in quo supported the case of the appellants.”

It was then submitted that the appellants cannot reprobate before us on that statement, by attacking the conduct or matter of the visit, since that is the attitude which had been deprecated by this Court in the case of Ojiegbe & Ors. v.Okwaranyia & Ors., (supra). Finally, the respondents submitted that the present case is distinguishable from the case of Seismograph Services (Nig.) Ltd. v. Onokposa, (1972) 1 All N.L.R. (Pt.1) 343 where the trial judge substituted the evidence adduced with his view at the locus in quo contrary to what happened in the present case.

Now, what actually took place in the present case was that on the 20th day of July, 1982, the final addresses were concluded and the learned trial judge reserved judgment. The record of proceedings shows next that the Court held at Alor instead of Onitsha, and its record was headed – “Locus Report in Re – 0/18 & 133/71; Akigwe & Ors. v. Enigwe & Ors.” The plaintiff testified and was cross-examined by counsel for the defendants. Next, P.W.2 Felix Udeze testified but was not cross-examined. A defendant (no name mentioned) testified and he was cross-examined by the plaintiffs’ counsel. Another witness, simply called Udoka, finally testified but was not cross-examined. The record was then dated 19th October, 1982. It is significant that it was not signed by the trial judge.

The High Court resumed on the 20th day of October, 1982 but it is not clear at where, since the record heading was merely marked – “Resumed on Wednesday, the 20th day of October, 1982.” The following minute then appears: –

“COURT: On Monday the 18th of October, 1982 the Court visited the locus in quo at Alor in Idemili Division and their inspection of the land in dispute in the presence of the parties and their Counsel made certain observations which were recorded by the clerk of court. Evidence was taken there and Counsel for both parties were given opportunity to lead evidence and cross-examine the principal witnesses. What transpired at the locus in quo was read in the open Court on the following Wednesday and both parties and Counsel confirm the correctness of the proceedings.

COURT: Judgment was reserved to the 9th of November, 1982.

In dealing with the foregoing submission, I think it is necessary to state the general principles of visit to or inspection of a locus in quo. These are –

1. There is no rule of law which determines at what stage in a trial a visit of inspection must be made – see Ejidike & Ors. v. Obiora, (1951) 13 W.A.C.A. 270 at 273.
2. A Court should undertake a visit to the locus-in-quo where such a visit will clear a doubt as to the accuracy of a piece of evidence when such evidence is in conflict with another evidence – see Seismograph Services (Nig.) Ltd. v. Ogheni, (supra).
3. Where there are two conflicting evidence adduced by parties to a case, it is necessary to visit the locus in quo if such a visit can resolve the conflict in the evidence – see Seismograph Service (Nig.) Ltd. v. Akporovo, (1974) 6 S.C 119 at 128.
4. Where a trial judge makes a visit to locus-in- quo it is not proper for him to treat his perception at the scene as a finding of fact without evidence of such perception being given by a witness either at the locus or later in court after the inspection – see Seismograph Service Ltd. v. Onokpasa (supra).
5. On a visit to a locus-in-quo it is necessary for the trial judge to make a record in the course of the proceedings of what transpires at the scene. However, if the trial judge failed to make the record but made statement in his judgment about the visit, such statement would be taken as accurate account of what happened and therefore final, unless of course the contrary can be established by the party that impugns the record – see Nwizuk’ s case (supra) and Maji v Shafi, (1965) N.M.L.R, 33 at 35 and Bello v. Kassim. 1969 1 N.M.L.R, 148.
6. Where a visit is made to a locus-inquo evidence of witnesses can be received at the scene or in Court later. But the parties, in that case, must be given the opportunity of hearing the evidence of the witnesses and where necessary be offered the opportunity of cross-examining the witnesses and commenting on the evidence – see Seismograph Service Ltd. v. Onakpasa, (supra) at pp. 134-135.

In addition, I think it is pertinent to refer to my observation in Chukwuogor v. Obuara, (1987) 3 N.W.L.R. (Pt. 61) 454 at 473, wherein I said-

“his clear from the parts italicised above that the Evidence Act laid down two procedures for visit to a locus in quo. That is the court may adjourn to the locus and continue sitting there in the normal way by hearing and taking evidence of witnesses or it may just move to the locus to inspect the subject-matter of dispute and return to the court room for evidence of the inspection to be adduced. From the reference made by the learned trial judge in his judgment it seems that the second procedure was half-heartedly followed by him. The record merely reads –

“In the presence of the parties and their counsel. I visited the road in dispute. The road was correctly described as track by the higher technical officer, for my inspection clearly showed that it is a road through which the defendant has access from his compound to the Awka-Onitsha main road…………….”

Ambrose Ezeani, D.W. 4 was the Higher Technical Officer who had, earlier testified before the inspection. The above quotation does not show that evidence of the inspection was given in court. This may not be fatal to the proceedings in view of the decision of this Court in Musa Maji v. Mallam Shewu Shafi, (1965) N.M.L.R. 33 at 34 and the decision of the West African Court of Appeal in Chief Aaron Nwizuk & Ors. v. Chief Warribo Eneyok & Ors., (1953) 14 W.A.C.A. 354.

In Ejidike & Ors. v. Obiora, (1957) 13 W.A.C.A 270; Mwizuk & Ors.’ case (supra) and Adeleke Arutu v. R. (1957) SCNLR 4 F.S.C, 77 visits to locus in quo were carried out after judgment had been reserved (as was done in the present case). The visits were not considered void but as part of the proceedings at the trial, so that the proceedings did not actually terminate with the addresses of counsel which were taken on the 9th of April, 1981. If, therefore, counsel had wanted to address the court thereafter, they would have been entitled to do so. And that would have been the “final addresses” before judgment was delivered, As it were, there were no final addresses after the inspection which was as integral part of the procedure for adducing evidence.”

What is striking, and indeed startling, in the present case is the following remark made by the learned trial judge

“At the close of evidence, learned counsel for both parties addressed the court extensively. After considering the evidence canvassed by both sides, I had very little to choose between the evidence of both sides. I thereof, decided to pay a visit to the locus in quo to see things for myself…” (Italics mine).

First of all it is difficult to say that the proceedings at the locus in quo as recorded above conform with the general principles enunciated earlier. Some of the witnesses were not cross-examined and there is no explanation on the face of the record as to why they were not cross-examined. The questions that arise are; were the parties given the opportunity to cross-examine the witnesses and they declined to do so Or were the parties denied that right There are no answers to these vital questions. Secondly, there were no addresses by the parties on the additional evidence adduced at the locus-in-quo. With that state of the record of proceedings, it is not possible to say if the parties were given the opportunity to do so, by the trial judge, before he proceeded to deliver his judgment. This, I think, offends the principles of fair trial.

Of greater importance though is the reason given by the learned trial judge for undertaking the visit to the scene. It is significant that it was none of the parties, as is usually the practice that invited him to inspect the scene. At the stage when the learned trial judge decided that he had “little to choose between the evidence of the parties” he should have either dismissed their claims or non-suited them, as the case may be, but this did not happen. Instead he proceeded to rely on the evidence adduced at the locus in quo and what he also personally observed thereat to give judgment for the respondents in their case against the appellants and dismissed the claim of the appellants as plaintiffs in the cross-action. In this respect, the present case appears, as submitted by the appellants, to be on all fours with the case of Seismograph Service Ltd v. Onokposa (supra) at 131 or (1972) N.S.C.C. 231 at 235 where this Court, Per Sowemimo, J.S.C. (as he then was) made the following remarks –

“We consider it pertinent at this stage to refer this portion of the judgment where the learned trial judge stated thus –

“During the period of adjournment (for judgment after the addresses of Counsel) having perused the entire proceeding in the course of wanting to write the judgment, I found that in view of the expert evidence adduced by either side as to the cause of the cracks in the walls of Plaintiff’s buildings and the evidence as to the value, it was necessary for me to visit the College premises to inspect the buildings in order to find out which side was speaking the truth.”

The Counsel for the appellant contended, and quite rightly in our view, that it must be accepted, that the learned trial judge had impliedly found that on the completed evidence before him the Plaintiff had not established the liability of the Defendant. At the stage the learned trial judge should have dismissed the Plaintiffs’ claim.”

In the present case the remark made by the learned trial judge at the end of the final addresses was that he had “little to choose between the evidence of both sides”. This statement is not tantamount to final rejection of the parties’ cases.

It seems to me to imply that the case of one party was more cogent than that of the others, but that the cogency was not preponderant enough to justify the grant of the claims on the balance of probabilities. To which of the parties that specifically applies, I cannot say. Consequently, it is impossible for this Court to determine on which side the scale of justice should tilt. Accordingly, the order to be made in the circumstances is, in my opinion that of non-suit as urged by the appellants, so that the consolidated actions may be heard de novo. I am not unaware of the fact that the actions in this appeal were instituted about 22 years ago and in the interest of all concerned, the cases should have been disposed of long before now. However, the order which I intend to make is the only one available to this Court for the reasons already aforementioned.

In the result, the appeal succeeds and it is hereby granted. The decisions of both the High Court and the Court of Appeal are hereby set aside. In their place I non-suit the plaintiffs in each of the 2 cases which constitute the consolidated action. Costs assessed at N1,000.00 are awarded in favour of the Appellants against the Respondents.

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Other Citation: (1992) LCN/2490(SC)