Popoola Olubode & Ors. V. Alhaji Akinola Salami (1985)

LawGlobal-Hub Lead Judgment Report

O. COKER, J.S.C. 

The parties in this appeal were neighbours, occupying adjoining compounds at Oja ‘gbo, in Ibadan, and a common boundary separated them. The Plaintiffs, the Olubode family, are the Appellants, while the Defendant, Alhaji Akinola Salami, a member of the Agoro family, is the Respondent.

These proceedings were commenced in the former Western State of Nigeria High Court, Ibadan Judicial Division. The Olubode family, through their representatives, claimed against the defendant, declaration of title to a parcel of land, alleged to be part of their compound.

They also claimed damages for trespass and an order of injunction. Pleadings were ordered and filed. Each party filed a plan of the land showing several structures and other features thereon. The case was first heard by Aguda, J., as he then was, and resulting from appeals against his judgment, the case was heard de novo by Ayoola, J., in the High Court of Oyo State.

In a carefully considered judgment delivered after an inspection of the locus in quo, he dismissed all the three reliefs claimed by the Plaintiffs. The Plaintiffs appealed to the Court of Appeal and, on the 1st June, 1982, the two grounds of appeal argued were dismissed. This appeal is from that decision.

There are two grounds of appeal, which followed the same line as the two grounds argued before the Court of Appeal. The first ground is related to the weight of evidence while the second is the alleged wrongful use made by the trial judge of the Inspection Report.

Uche Omo, J.C.A., delivering the leading judgment of the court below stated inter alia on the first ground of appeal:-

“After a careful consideration of the points raised, I do not think it is necessary to set them out seriatim and pronounce on them, having come to the conclusion that they in no way affect both the findings of fact and the final conclusion arrived at, in his rather meticulous judgments (sic) by the learned trial judge. There is no substance in this ground of appeal which therefore fails.”

As to the second ground, the Court of Appeal found as follows:-

“There is no doubt at all that all the distinguishing features set out by the respondents’ Counsel are correct; what has to be determined is whether they justify in law the action of the trial judge and the overall effect of such action on the verdict he delivered.

The decision in Onokpasa’s case was based partly on a consideration of the provisions of section 76 of the Evidence Act which the trial judge in that case did not comply with. It provides, inter alia, that where the Court attends and makes inspection of the subject-matter only, evidence of what transpired should be given in Court afterwards. Where oral evidence refers to a fact, which could be seen, it must be the evidence of a witness who actually saw same. The learned trial judge in the present case quite clearly did not comply with these provisions of the Evidence Act. Although his behaviour was otherwise impeccable, no evidence was subsequently led in support of the facts therein stated. It has to be admitted that he was acting on what was not in evidence by a witness in Court, but on his own evidence.”

The learned Justice of Appeal then considered two other decisions, namely, Ejidike & Ors. v. Obiora 13 WACA 270, and Aaron Nwizuk & Ors. v. Emeyok & Ors. 14 WACA 354, and after considering other important findings of the trial judge which were made without reference to the visit to the locus in quo, agreed with the decision that the Plaintiffs failed to prove their case and dismissed the appeal.

I shall deal with the first ground of appeal in this court. It reads:

(i) The Federal Court of Appeal erred in law in failing to set out the issues raised in ground one (that the decision is against the weight of evidence) and pronounce on them seriatim when it was shown that the Learned trial Judge: