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

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:

(a) made errors of appraisal of the ample oral and documentary evidence before him;

(b) drew wrong conclusions from accepted and proved facts;

(c) approached the determination of the facts in a manner which the facts do not support;

(d) did not determine vital issues which depend on the appraisal and evaluation of the evidence.

PARTICULARS

(i) The Court of Appeal did not examine the issues raised and testified to in paragraph 5 of the Statement of Claim in relation to the exercise of numerous and positive acts of ownership.

(ii) The Court of Appeal did not consider available evidence in relation to the Plaintiffs’ plan on the alteration of the boundary between the lands of the parties and the positions of the mosque and houses as shown in the plan tendered by both parties.

(iii) The Court of Appeal did not consider the fact that the Respondent relied, as one of the props of his defence, on the equitable defence of laches, acquiescence and standing by, and, its effect on his claim that his family granted the land in dispute to the Appellants’ ancestors.”

In his Brief filed on behalf of the Appellants, Chief Chukwura set out a catalogue of a long list of pieces of evidence adduced by some of the witnesses which he submitted were not adequately considered by the trial judge.

These pieces of evidence covered practically all the evidence favourable to the appellants but they omitted the explanations and contradictory evidence of the Respondent and his witnesses as well as those of the Appellants’ own witnesses favourable to the Respondent’s case. Such evidence as he listed were completely quoted out of con in relation to the findings made by the trial judge.

To say the least, the matters raised by the Appellants’ Counsel did little or no justice to the trial judge for the pains in meticulously reviewing the evidence and making reasonable and specific findings on the evidence before him. What the learned counsel expected the Court of Appeal to do was to scrutinize, examine, reorganise and re-evaluate all the evidence that were adduced up to the judgment. It is my view that the function of an appeal court is to determine whether error had been committed by the trial Court.

If error has been committed, it must then decide whether such error was of such gravity and magnitude to necessitate the reversal of the judgment of the trial court. It is not every error that would lead to a reversal by the appeal court. Such error must have substantially affected the result of the decision.

Learned Counsel has asked the Court to examine evidence of all the various acts of ownership pleaded by the Plaintiffs. In the present case, that duty was admirably done by the trial judge before he came to his decision. He meticulously examined the evidence adduced by both parties and accepted the version of the defendant and his witnesses. His findings were reasonable and amply supported by evidence.

I shall take some of the complaints made by the Learned Counsel for the Appellants. Regarding the traditional evidence as to who first settled on the land. The trial judge was of the opinion, and rightly in my own view, that:

“In view of the conflicting traditional evidence adduced by both parties in this case and the fact not in dispute that both Olubode and Agoro families acquired title to some areas contiguous to the vicinity of the land in dispute, the traditional evidence of settlement cannot really be the deciding factor. The leading factor, in my view, is the evidence of the acts of ownership exercised over the land in dispute and of facts of recent times. The probability of the case presented by the parties shall be tested by reference to those facts.”

The trial judge then carefully, examined the evidence relating to the land immediately surrounding the land in dispute to which both the Olubode family and the Agoro family laid claim. He considered the undisputed fact of the defendant’s house and the mosque, and other buildings belonging to members of the Agoro family around the land in dispute. Chief Chukwura has argued that it was not right for the Court of Appeal to dismiss ground one of appeal simply by stating that it came to the decisions that the conclusion arrived at by the learned trial judge was unaffected by all he (Counsel) said in his argument. He argued that the appellants were entitled to be informed of the reason for the decision. In other words, the Court of Appeal ought to set out seriatim its reasons on each of the specific complaints, however unfounded. I am unable to accept this submission. Every case must be decided on its particular circumstance. The seriousness of the complaint or otherwise and or its triviality are factors to be considered. In this case, the various matters of which learned Counsel made so much weather were completely without substance and the Appeal Court was therefore quite justified in dismissing the ground summarily. It is not unusual for an appeal court in proper cases to dismiss appeals summarily without calling on the Respondent if the argument and the grounds of appeal justified such a course. If the decision of the trial court is to reverse on an issue of fact or on the applicable law then the appeal court would give the reason for doing so.

Before concluding this ground, I wish to comment on a matter about which Chief Chukwura has complained vehemently. It is the admission by Alli, D.W.1, that pillar XT 9413 is on the south east of the land in dispute bearing the highest serial number in Exhibit G. Its position will be seen to be west of the mosque. His argument suggested that that was the accepted eastern boundary of the Agoro Family Compound. The argument seemed to have overlooked the fact that the surveyor testified that he did several property surveys for the defendant and it was agreed by the two parties that the Plaintiffs uprooted some of the survey beacons buried by the witness. The removal of the pillars by the plaintiffs led the Defendant to report the matter to the Police; as a result, some members of the Olubode Family were prosecuted. I shall have more to say later on the facts of the case when dealing with ground two. The learned trial judge stated at p.132/10-27:-

“Having considered the totality of the evidence, I do not find the various acts of ownership enumerated in paragraph 5 of the statement of claim proved. I accept the evidence adduced by the defence that there was no Ogun Shrine on the land in dispute. I do not find it proved that the land on which the mosque was built by the defendant’s father was granted to him by the Olubode family. The evidence of grant of land to defendant father for building of a house near the land in dispute is almost nil. I do not accept the meagre evidence adduced in passing by the fourth plaintiff to that effect. I prefer the evidence of the defence as to how Oyakale’s father got the land on which Samuel Oyakale’s building now stands to that of the plaintiffs.

I cannot see any substance in this ground of appeal which will be dismissed for these and other reasons.

The second ground of appeal reads as follows:-

“The Federal Court of Appeal erred in Law in dismissing the Appellant’s Appeal after holding as follows:-

“It is only in one, not unimportant aspect of this case that reference was made to and reliance placed on observations made by the trial judge at ….. the question as to which of two conflicting footpaths constitutes the boundary between the land belonging to the relevant families of the parties Olubode and Agoro”.

PARTICULARS

(i) the complaints in ground two of the Grounds of Appeal before the Federal Court of Appeal was that the trial judge erred in law in interposing his personal knowledge (derived from his inspection of the land in dispute) and relying on the same to the detriment of the Appellants, without complying with the prescribed procedure for dealing with knowledge derived at an inspection as laid down in the case of Seismograph Services Limited vs. Benedict Onokposa (1979) 1 All N.L.R. 343 and in breach of Section 76 of the Evidence Act.

(ii) The issue of which of the conflicting footpaths was the crucial and specific direction given by the Western State Court of Appeal when it ordered a re-trial (see page 94 of the Record).

The Appellant’s Brief under this ground bears no true relation to the facts of the case and, as in the earlier ground, is completely devoid of merit. In order to appreciate the point, it is necessary to set out what the Brief state.

GROUND TWO:

(i) The complaint in this ground of appeal is that when the trial Court on application by both parties visited that land in dispute he made notes of his own without receiving oral statements from anyone or afterwards calling witnesses on return to the Court house to prove particular aspects of his observations by legal evidence.

In order to keep the terms of reference constantly in view it should be recalled that the specific direction of the Western State Court of Appeal is to determine THE BOUNDARY between the parties and to decide whether the BOUNDARY is a FOOTPATH, and if so, its LOCATION on the plan. Any error which affects the determination of these key issues is a total error. The trial court’s report on its visit is at pages 82 to 84 of the record. In the judgment:-

(a) the Court treated its observations as facts established by evidence and proceeded to base his decision thereon. (see page 120 lines 1-9; pages 132 lines 28 page 13 line 1; page 135 lines 16-27)

(b) no evidence of the facts relied on was given by any witness at the land or in Court; (See (I) below).

(c) the parties had no opportunity to cross-examine the Judge i.e. even if they could. (in the peculiar role which the Judge played the role of a witness See (2) below).

(d) the fact that Counsel for both parties stated that they did not wish to call any witness is beside the issue, and does not entitle the Judge to use his personal views, untested by cross-examination, as evidence on which to base his judgment; (See (3) below).

(e) he used his views to discredit the evidence of Laniyonu, the Appellant’s Surveyor (See page 133 lines 8-22) (See (4) below).

(ii) The Court of Appeal found that there is substance in Ground 2. (page 173 line 8); that the learned trial Judge quite clearly did not comply with the provisions of Section 76 of the Evidence Act and the procedure outlined in Seismograph Services Ltd. v. Onokposa (1972) 1 All N.L.R. (part 1) page 343 at 350/2;

that the Judge acted on what was not evidence before him when he relied on the report (page 175 lines 8-22); that the Judge referred to his report only in one not unimportant respect and relied on his observations. The Court of Appeal identified this not unimportant respect as:

“which of the two conflicting footpaths constitutes the boundary between the land belonging to the relevant families of the parties Olubode and Agora (page 176 line 29-34) (see (5) below).”

It is submitted that this is the ONLY issue in the case:

(a) as contained in the specific direction of the Western Stale Court of Appeal (page (94) lines 8-19).

(b) as properly identified and acknowledged by the learned trial judge (at page 122 lines 7-27)

(c) as specifically found by the Judge (at page 137 lines 14-26).

The mailers raised by way of distinguishing the fatal error in law and in practice in this case from the case of Seismograph Services Ltd. v. Onokposa, are invalid, not relevant to the facts of this case and amount to making a distinction without a difference (see the record at page 174 line 1 to page 177 line 31)

(iii) The Court of Appeal also introduced the notion of miscarriage of justice (page 177 line 31). It is submitted that the question of miscarriage of justice –

(a) does not arise in this case.

(b) is not to be used to bolster up an irredeemable error of law.

(c) and should not have been introduced into the case by the Court of Appeal.

(d) it was not raised by the Respondent.

(e) on the contrary the miscarriage of justice fell on the appellants and not on the respondent.”

E The decision of the West African Court of Appeal in Ejidike’s case supra, on which the court below relied, fully justified its decision as will be shown hereinafter.

At this juncture, I wish to dispose of one point raised by Chief Chukwura. The contention was that the defendant impliedly admitted the Plaintiffs’ title to the land by pleading the equitable defences of laches, standing by and acquiescence. The contention is baseless. The said defences were raised in paragraph 40 of the statement of defence which were immediately preceded by paragraph 39, in which the defendant denied the plaintiffs’ ownership of the land. The trial judge was right in holding the view that the onus of proof was on the defence. He however found that the defendant completed his house in 1964 which he started in 1958 and no one disturbed him in the process. The appellants never took this action throughout the six years, until in 1968 when the defendant planted survey pillars on the land. The trial judge further stated that:-

“If I were to decide the issue, my judgment would have been that the plaintiffs have been guilty of laches and acquiescence even if they ever had a right to the land in dispute, and I have held they had no right thereto.”

I agree with him. The contention of the appellants that the effect of the equitable pleas was an implied admission that Plaintiffs granted the land is without substance.

Now coming back to the particulars and comments given under the second ground of appeal, it is my view that they are misleading and cannot find support both on the evidence before the trial court and in its decision.

A careful reading of the judgment as a whole including the Inspection Report does not disclose he received any evidence at the locus. The judgment also did not reveal that he introduced any evidence of his own in the judgment which was not already given by witnesses before him in court prior to the inspection.

I shall first summarise my views on the particulars and comments on the appellants’ briefs.

(1) The statement and comment in particular (a) are incorrect and misleading. I cannot see what was not given in evidence that was used in the judgment as stated in (b).

(2) Since both counsel declined to call any witnesses after the trial judge had read the Inspection Report even though they were requested by the trial judge if they wished to make any corrections or call any witness, i cannot see how any of the parties could blame the trial judge for not calling any witnesses (vide (c)).

(3) As regards (d) – Learned counsel for appellants did not state where the judge used his personal knowledge or observation other than the evidence already given by the witnesses.

(4) Witnesses gave evidence to the identity of the two footpaths and contradicted Olaniyonu, P.W.1, who himself admitted his mistakes under cross-examination (see (e) above).

(5) Even though I agree that there were other pieces of evidence to support the conclusion reached by the Court below, I entertain doubts whether the trial judge made improper use of the inspection report.

I shall now proceed to elaborate on these points. The trial judge stated at p.132/28:-

“Now, as to the contention of both parties as which footpath formed the boundary between Agoro family compound and Olubode family compound. I visited the lucus in quo. I was unable to find anything like a footpath where the plaintiffs claimed there was one.

Testifying earlier, Alhaji Alii, (D.W.1) said:-

“The gap between the mosque and building 4 in Exhibit A is shown in Exhibit A with a footpath traversing it. 1 did not see such a footpath when I carried out my survey on both occasions,” I believe his evidence on that point.”

Later at p.133/30 to p. 134/25 the learned trial judge found:

“I turn to the other evidence relating to the path which was claimed by both parties to be the boundary. First, I observe that the issue as to a path being the boundary between the parties, was not raised by the plaintiffs on their pleadings. It was in his evidence in cross-examination as recorded in Exhibit D that Popoola Olubode said:

“the boundary between us and Agoro is a footpath which has been in use for a long time.” According to him that footpath “passes by my house at the top but it passes the back of the mosque.” Oyabode Olubode (in Exhibit E), was recorded also as saying:

“It is within the Olubode’s family land that the defendant built his house. Part of the defendant’s house is adjacent to Popoola’s house. The other part blocks the footpaths up to the mosque. The front of the house abuts on Olubode family land. The house has blocked the old footpath. The old footpath served as a boundary between Agora family land and Olubode family land.”

“From the portions of his evidence which I have italicized, it is clear to me that the old footpath shown on Exhibit A, could not have been the old footpath Oyabode Olubode was referring to.”

Still further at p. 135/19 to p.136/22-

“As the record of inspection shows, there was a footpath which ran from a point by the side of Popoola’s building (shown on Exh.G) through the frontage of house marked Toki (No.7) on Exhibit G became indistinct some length further and ran into an earth drain. In my view, whatever the reason for linking two houses with a roof there was an unmistakable restraint from tampering with the course of the footpath shown in Exhibit’G. I believe the evidence before me that from peg 3 through nail 2 to 1 on the plan. Exhibit G, is a footpath. I find as of fact that there was no footpath from nail 1 through 7 to 6 as shown on Exhibit A; and that there was no demarcation between the rest on Agoro compound undisputed and the disputed area which include the land in dispute.

The evidence adduced by the plaintiff as to the identity of boundary footpath is entirely unsatisfactory and vague. Anyone reading their evidence and reading the plans in evidence in this case, will have no idea which footpath they are talking about. Rather, the evidence (contained in Exhibit E), tended to put the location of that footpath nearer the vicinity of, if not exactly as the one shown on Exhibit G as boundary between Agoro land and Olubode land than that shown as the boundary in Exhibit A. The plaintiffs have not claimed in their pleadings that a footpath was the boundary between the lands of Agoro and Olubode. They have F not shown anything else as demarcating the boundary. Since the plaintiffs case rests on their claim to land which extends beyond the land in dispute to the mosque, the onus is on them to show that the boundary between Agoro land and Olubode land is the boundary shown on their plan, They have failed to discharge that onus on the totality of the evidence.”

In my view, I cannot find a more thorough review and satisfactory findings than the learned trial judge did in this case. No other or better reasons could have been given. The criticism of the learned senior advocate cannot therefore be justified. Uche-Omo, J.C.A. was therefore right to have summarily dismissed them,

Before arriving at the above findings, the trial judge had earlier reviewed the evidence of all the witnesses and weighed them carefully. This Court in Mogaji v. Odofin (1978) 4 Sc. 91,93 stated the principle:

“The duty of trial judge is to consider the totality of the evidence in order to determine which has weignt and which has no weight at all. Therefore in deciding whether a certain set of facts given in evidence by one party in a civil case before the court in which both parties appear is preferable to another set of facts given in evidence by the other party, after a summary of all the facts must put the two set of facts on an imaginary scale, weigh one against the other, then decide on the preponderance of credible evidence which weighs more, accept it in preference to the other and then apply the proper law to it.”

This was precisely what the trial court admirably did in the instant case. It was this court which stated in A.M. Shadipe v. Lions Buildings Ltd. (1976) 12 SC. 135 p. 162, that the duty of the Court of Appeal is to consider and weigh carefully the whole evidence before the trial court and should not shrink from setting it aside if it comes to the conclusion that it is wrong. But it warned that in a case like the present in which the trial judge was confronted with two conflicting or opposing accounts, it was his duty to consider on the balance of probabilities which of them to accept.

An appeal court does not disturb a finding of fact unless it is satisfied that such a finding is unsound. I hold in this that judgment of the trial court was sound and unimpeachable. At page 174 the court below stated:-

“Respondent’s counsel sought to distinguish the fact of the present case from those in Onokpasa’s (supra), mainly on three grounds. Firstly, whereas in Onokpasa’scase the trial judge went on a visit to the locus in quo suo motu and alone i.e. unaccompanied by counsel and parties, the learned trial judge in this case went there on the application of both counsel who along with their clients were present at the locus in quo inspection. Secondly, the trial judge went on his solo visit in Onokpasa’s case after the parties had closed their cases. Counsel’s address taken and he had started writing his judgment. On his own admission he found it “necessary…….to visit…….to inspect the buildings in order to find out which side was speaking the truth.” In this case the learned trial judge did not find it necessary to go on a visit to the locus. He expressed no desire to do so but went in response to a joint invitation by the parties. Thirdly, whilst in the present case all the findings noted in the locus in quo report were the subject of and supported by evidence led by the parties previously in court, the trial Judge in Onokpasa’s case made new discoveries, not testified to in court and in some respects contrary to the testimony given in court, when he visited the locus in quo. Counsel finally submitted that this court can confirm the judgment of the court below if there is other evidence, besides the locus in quo observations of the court, to justify them vide Ejidike & Ors. v. Obiora 13 WACA 270; Aaron Nwizuk & Ors. v. Eneyok & Ors. 14 WACA 350; Alhaji Apampa v. E. Ladele (1979) 2 Oyo State High Court Reports Part 3 p. 271(6/8).

There is no doubt at all that the distinguishing features as set out by respondent’s counsel are correct.” The court below further stated at p. 175 that –

“The only question left to consider now is whether his reliance to the report occasioned a miscarriage of justice which should result in his judgment being overturned. In Ejidike & Ors. v. Obiora (supra), the West African Court of Appeal held that:-

Although the judge may have erred in referring in his judgment to certain facts observed by him in the inspection, of which there was no evidence on record, and had drawn certain conclusions therefrom, the Court was not satisfied that these conclusions materially affect his decisions, or that if he had not made such observations he could have come to a different conclusion.”

(Italics mine)

and proceeded to dismiss the appeal.

In the present case the learned trial judge after a detailed consideration of the evidence considered all the issues raised, and found against the plaintiffs on

(1) The traditional evidence led: He found this inconclusive holding thus:-

“In so far as the plaintiffs claim rested on traditional evidence I find the evidence inconclusive as to the ownership of the area in dispute which includes the land in dispute.”

(2) The acts of ownership averred and testified to on these he stated:-

“I do not find the various acts of ownership enumerated in paragraph 5 of the statement of claim proved”; and later,

“As to the land specifically described as land in dispute, I do not find it proved that the plaintiff’s family performed any positive or numerous acts of ownership therein to raise an inference that they were owners thereof.”

“All these findings were made without reference to or reliance on the report of the visit to the locus in quo. In my view they are enough grounds for coming to the conclusion that the plaintiffs have failed to prove their case and dismissing them.”

Later in the judgment, the court below at p.176-177 stated-

Evidence had been led before the trial court as to the existence of two separate footpaths one of which either party claimed to be the boundary. In his judgment he found the footpath claimed to be its boundary by the plaintiffs/appellants to be non-existent, in the following words (p. 132 lines 28 et seq.):-

Now, as to the contention of both parties as to which footpath formed the boundary between Agoro family compound and Olubode family compound. I visited the locus in quo. I was unable to find anything like a footpath where the plaintiffs claimed there was one ….”

Later in his judgment (p. 135/6), after referring again and relying on the evidence with the record of inspection, and the plans filed, he found the defendants footpath to be correct boundary, and again rejected plaintiffs’ “footpath.”

He concluded that “The evidence adduced by the plaintiff as to the identity of the boundary footpath is entirely unsatisfactory and vague.”

On this aspect of the case it is important also to observe, firstly, that the question whether or not a footpath is in existence is one that can be decided by observing a physical fact. The West African Court of Appeal in Ejidike’s case seems to have held that this is one type of fact, which a trial court can decide from its own observation when it is stated that:-

“When there is conflicting evidence as to physical facts, I have no doubt that he (my note: the trial judge) may use his own observations to resolve the conflict…..”

Secondly, that the learned trial judge did not rely on his observation of and, report on the locus in quo visit to come to the conclusion that the plaintiffs/appellants alleged boundary footpath was not seen or proved. He considered and relied on (a) the evidence given in court by the Surveyors of the parties (P.W.1 & D.W.1), (b) the observation from the pleading that the footpath is the boundary was never pleaded by the appellants and (c) that the evidence actually led on the point was unsatisfactory.

I have reproduced the above extracts from the judgment of the court below to demonstrate the complete lack of substance in this ground of appeal. I cannot agree more with the Court of Appeal. Beside, I may add the following observation.

The evidence before the Court included the two plans, exhibits A and G. These two plans should be examined along with the evidence of the following witnesses:-

The 4th P.W. – David Adeleke Olubode in his evidence admitted that “Ajiyalu compound forms boundary with Agoro compound…….An earth drain runs between Ajiyalu and Agora compounds -water coming from Olubode compound runs along the drain. A footpath forms the boundary between Ajiyalu and Olubode compounds…….A drain separates Olubode’s compound and Agoro’s compound from point 6 and point 7 on Exhibit A. Between point 6 and point 7 there used to be a footpath……..It is important to observe that the above admissions by this witness accord with the evidence of D.W.1 and his survey plan Exhibit G. These feature are clearly indicated on the plan (Exhibit G) and his P.W.1) evidence, but are conspicuously absent on Exhibit ‘A’ prepared by P.W. 1- Olaniyonu, who under cross-examination admitted, after denying same. He said

“There is a passage along peg 2 and peg 3. That passage is covered. We used that passage in going into the compound. There is a continuous passage as from peg 2 through to peg 6. It is a space for human being to walk through.”

That was the footpath which the defendant and D.W.1 alleged and which was accepted by the trial judge as the boundary between the two compounds. The above piece of evidence of P.W. 1 confirmed the evidence of P.W.4 and that of D. W. 1 and the defendant, and supported the decision of the trial judge. It was a footpath east of the defendants’ house which the trial judge found to be the boundary between the two families. There is yet another point which I consider distinguishes the facts of this case from the Onokpasa’s case. It was the stand of both counsels after the trial judge read the Notes of Inspection. He asked if any of them wished to make any amendment to the Report or wanted to call any witness.

Can either of them subsequently challenge the procedure adopted by the trial judge to which both parties through their counsel acquiesced In my opinion, they cannot. See Oso Aya alias Oso Effiong & Anor. v. Henshaw & Anor. (1972) 1 All NLR. (Part 2) 125 p.28 where it was held that the learned judge cannot suo motu and without consent of parties call a witness. In Akhiwu v. The Principal Lottery Officer, Mid-Western State (1972) 1 All NLR. (Part 1) 229 at p. 234 the Court said “Once the procedure that was adopted was consented by all the parties, it is too late for the 1st defendant to be heard on appeal to say that the procedure worked injustice on him because be lost in the High Court.” In Chief Nwizuk v. Chief Eneyok (1953) 14 WACA 354 p. 355, the Court accepted statements made at the inspection without recalling those who made them. Verity, Ag. P. in Ejidike’s case supra at p. 273 said

“It ill behoves any of the parties who subsequently challenged what happened at the locus which he consented,” (after adopting the words of Lord Alverstone in London General Ominibus Co. v. Lavell (1901) 1 Ch. 135)

“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 understanding the questions that are being raised. to follow the evidence and to apply the evidence.” To this I would do no more than add that in all cases in which a visit is paid by the Court to the locus in quo in a civil action the 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 upon the record. When there is conflicting evidence as to physical facts, I have no doubt that he may use his own observations to resolve the conflict, but I do not think it is open to him to substitute the result of his own observation for the sworn testimony nor to reach conclusions upon something he has observed in the absence of any testimony on oath to the existence of the facts he has observed. Should he do so, he would, in my view, be usurping the position of the witnesses, and if his decision is materially affected by conclusions drawn from facts of which there is no evidence upon the record, this may result in the reversal of his judgment or the order of a new trial.”

“In the present case, perhaps owing to the stage of the proceedings at which he was invited by counsel to visit the land, the learned judge may have erred in that he may refer in his judgment to certain facts of which there is no evidence on the record, but which he observed on the occasion of his visit and have drawn certain conclusions therefrom, but I am not satisfied, even if this is so that those conclusions materially affect the decision at which he arrived on the main issue before him or that if he had not made such observations his judgment would have been any different.” See 13 WACA 273-274. See Evoyemar v. N. Laughe & Ors. (1968) NMLR. 389; Ogbodu v. Odoghe(1967) NMLR. 221; Eric Odor v. James Nwosu (1974) 1 All NMLR. 478, pp. 484-485.

Counsel for both parties indicated that they were not calling any witness after the trial judge read the Inspection Report in open court. None of them can now complain that he had no opportunity to challenge what the trial judge recorded in the Report. The purpose of making the Report and reading it in open court was to enable any of the parties to challenge or offer any additional evidence to the Report.

I am satisfied that the trial judge was right and did not err in the use of the Inspection Report nor did he interpose his own personal knowledge of what he saw at the locus and the evidence already adduced before him. All the facts in his judgment were amply supported by the evidence. The second ground of appeal therefore fails.

I have come to the final decision that the appeal fails on all the grounds and is therefore dismissed with costs fixed at N300.00 to the respondent.

SC.11/1984