SUPREME COURT OF NIGERIA FRIDAY
(2002) 6 S.C. (PT. II) 73
CORAM
SALIHU MODIBBO ALFA BELGORE JUSTICE, SUPREME COURT
ABUBAKAR BASHIR WALI JUSTICE, SUPREME COURT
IDRIS LEGBO KUTIGI JUSTICE, SUPREME COURT
ANTHONY IKECHUKWU IGUH JUSTICE, SUPREME COURT
EMMANUEL OLAYINKA AYOOLA JUSTICE, SUPREME COURT
1. UGORJI OBI APPELLANTS
2. CHRISTIAN UKAMBA
3. ELEBEKE MMUOMARA
4. SIMON OBIDIEGWU
5. OBIALO AHIKOBO
(For themselves and as representing their Akokwa Community)
AND
1. DANIEL MBIONWU RESPONDENTS
2. PETER UME
3. FIDELIS EZEANOWAI
(For themselves and on behalf of the people of Osina Community Orlu)
Facts:
Both parties are two neighbouring communities sharing a common boundary in the Ideato Local Government Area of Imo State. By a writ of Summons, the plaintiffs, for themselves and on behalf of the people of Osina Community in Imo State, instituted an action against the defendants jointly and severally as representing their Akokwa Community claiming a declaration that the Ekpe - An ancient trench is the boundary between Osina and Akokwa; An injunction to restrain the defendants and the people of Akokwa from crossing the said ancient boundary and laying claim to land on the Osina side of the ekpe ditch. The case for the plaintiffs, is that from time beyond human memory, there has been an ancient ekpe trench that lies between the plaintiffs town of Osina and the defendants of Akokwa town. This trench was constructed by the joint effort of the ancestors of both communities and demarcated the land boundary between the two towns. The defendants denied the plaintiffs claims and asserted that the ekpe trench shown on the plaintiffs survey plan, which is the only ekpe trench on what the defendants called the land in dispute did not constitute the boundary between Osina and Akokwa towns. They stated that the said ekpe trench lied well within the defendants Uhu Ehihi Oke land which they claimed was in dispute and that it was built by the defendants ancestors from time immemorial as their last line of defence. They stated that the said boundary verged brown was from time immemorial demarcated by the defendants with life trees and that both towns had always accepted the said trees as their correct boundary marks. At the conclusion of hearing, the learned trial Judge. Johnson, J, after what looked like a full scale declaration of title to land claim by the plaintiffs dismissed the suit. Dissatisfied with this decision of the trial court, the plaintiffs lodged an appeal against the same to the Court of Appeal, Port Harcourt Division which court in a unanimous decision on the 5th day of November, 1996 allowed the appeal and set aside the judgment and orders of the trial court delivered on the 16th January, 1985. The Court of Appeal further directed that in order to do substantial justice to both parties that the suit be tried de novo. This decision was upheld by the Supreme Court.
Issues:
1. Whether the Court of Appeal was right by holding that the learned trial Judge in his approach to the trial misconceived the case before him by his repeated reference to land in dispute as if the claim before the court was that of declaration of title to a specific piece or parcel of land in dispute between the parties when the claim before him was simply that of declaration that the ekpe trench is the boundary between the parties.
2. Whether the Court of Appeal was right when it held that the learned trial Judge did not properly evaluate the evidence before him relating to the main fact in issue; namely, whether or not the ancient ekpe trench is the boundary between two parties.
3. Whether the decision for a retrial of the case ordered by the Court of Appeal is justifiable having regard to all the circumstances of the case.
Matters Considered:
1 Whether the Court of Appeal was right when it held that the learned trial Judge did not properly evaluate the evidence before him relating to the main fact in issue; namely, whether or not the ancient ekpe trench is the boundary between two parties.
1 Whether the Court of Appeal was right by holding that the learned trial Judge in his approach to the trial misconceived the case before him by his repeated reference to land in dispute as if the claim before the court was that of declaration of title to a specific piece or parcel of land in dispute between the parties when the claim before him was simply that of declaration that the ekpe trench is the boundary between the parties.
1 When will a Court order Retrial.
1 Discretion of Court to order retrial when an appellate court will interfere.
1 Inspection of locus in quo when necessary.
1 Purpose of visit to locus in quo.
1 Failure to record full notes of inspection to locus in quo whether fatal to validity of the judgment.
1 Whether the Court of Appeal can order a trial court to visit the locus in quo.
Principles Considered and Held:
1. Whether the Court of Appeal was right when it held that the learned trial Judge did not properly evaluate the evidence before him relating to the main fact in issue; namely, whether or not the ancient ekpe trench is the boundary between two parties - Both survey plans of the plaintiffs and defendants, Exhibits A and B, properly identified and indicated the said ekpe trench. No issue was joined by the parties either in their pleadings or from their evidence with regard to the existence or identity of the said trench. More importantly, no particular part or portion of the previous proceedings, Exhibit H, was tendered for the purpose of contradiction of evidence of the plaintiffs or any of their witnesses. I think, on the whole, the court below was right to hold that the learned trial Judge did not properly evaluate the evidence before him on the issue of the ekpe trench, the subject matter of the suit. (Pg. 202)
2. Whether the Court of Appeal was right by holding that the learned trial Judge in his approach to the trial misconceived the case before him by his repeated reference to land in dispute as if the claim before the court was that of declaration of title to a specific piece or parcel of land in dispute between the parties when the claim before him was simply that of declaration that the ekpe trench is the boundary between the parties - In my view, the trial court by succumbing to the submissions of learned defence counsel and by giving the impression that the claim before the court was that of title to a piece or parcel of land, if I may say with respect, completely missed the real issue for determination in the suit. It is evident that the frequent reference to land in dispute in the judgment of the learned trial Judge inspite of the claim and the pleadings before the court deprived him of a clear perception of the real issues for decision in the case. I am satisfied that the learned trial Judge completely lost sight of the real issues in controversy between the parties which was simply a declaration that the ekpe trench is the boundary between the parties and not a claim for declaration of title to a particular piece or parcel of land. He therefore approached the evaluation of the entire evidence led at the trial from a faulty position and consequently arrived at an erroneous decision in the case. (Pg. 201-202)
(b) It is clear in the record of proceedings that learned trial judge despite great effort at analyzing the evidence laid by the parties before him, missed the crucial point for determination. He concentrated on matter of title, which was not the issue he was asked to determine, and left undecided the crucial issue of whether the boundary between the parties was EKPE (the ancient trench that seems to separate the two contending Communities. This error has affected his judgment and the only way to correct this is by way of a retrial. (Pg. 206)
(c) Where the claim is for declaration of boundary between two areas of land, to treat the action as if it were a declaration of title to a parcel of land and insist on proof that would have satisfied the requirement of a grant of declaration of title to land is a fundamental misdirection which affects the decision. (Pg. 207)
3. When will a Court order Retrial - An appellate court will order a retrial where it is satisfied that there has been such an error in law or an irregularity in procedure of such a nature which neither renders the trial a nullity nor makes it possible for the appellate court to say that there has been no miscarriage of justice so long as there are no special circumstances in the case as would render it oppressive to put the defendant on trial a second time. (Pg. 202)
(b) So, too, where an appeal is allowed because of failure of the trial court to make findings of fact on material issues and the determination of such material issues depends on the credibility of witnesses, the proper order the appellate court ought to make is an order for retrial. (Pg. 202)
4. Discretion of Court to order retrial when an appellate court will interfere - I think I need to mention that it was in the exercise of the discretion of the court below and in its attempt to ensure that there had been no miscarriage of justice in the trial that it was able to make an order for the retrial of the suit. The law is settled that where the Court of Appeal in the exercise of its discretion orders a retrial unless this court comes to the conclusion that the exercise of such discretion was manifestly wrong, arbitrary, reckless, injudicious or contrary to justice, it cannot interfere even if it might have exercised the discretion differently if the discretion were that of this court. I can see nothing in the order of retrial made by the court below in this case which is manifestly wrong, arbitrary, reckless, injudicious or contrary to justice and I am therefore unable to interfere with it. (Pg. 203)
5. Inspection of locus in quo when necessary - With profound respect to the court below, it is now well settled that the inspection of a locus in quo is strictly not necessary where the area of land in dispute is clear to the court and the parties and the trial court must arrive at its judgment not or the impressions from the locus in quo but upon its impressions from the evidence led before the court. A trial court is only to record the fact of the inspection and need not give its details although it is good practice where possible to record the full details of such inspection. (Pg. 204)
6. Purpose of visit to locus in quo - It has been said that the purpose of an inspection of a locus in quo is not to substitute the eye for the ear but rather to clear any ambiguity? that may arise in the evidence or to resolve any conflict in the evidence as to physical facts. In other words, the purpose of an inspection of a locus in quo is primarily for the purpose of enabling the court to understand the questions that are being raised at the trial and to follow the evidence and apply such evidence. (Pg. 204)
(b) 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 understand 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 The purpose of a visit to the locus in quo, as has been stated repeatedly, is not to recite the evidence already led but to clear doubts which might have arisen as a result of the conflicting evidence of both sides as to the existence or non-existence of a state of facts relating to a physical object, and such a conflict can be resolved by visualizing the object, the res, the material thing, the scene of the incident or the property in issue. Where there exists such conflicting evidence as aforesaid, it is permissible for the learned trial Judge and he is entitled to apply the court?s visual senses in aid of its sense of hearing by visiting the locus in quo to resolve the conflict. (Pg. 204-205)
7. Failure to record full notes of inspection to locus in quo whether fatal to validity of the judgment - Although the ideal practice is for the court to record the full notes of the inspection in its record book, absence of such record of the inspection of a locus in quo is not fatal to the validity of the judgment. (Pg. 204)
8. Whether the Court of Appeal can order a trial court to visit the locus in quo - I have closely studied all the evidence led in this case before the trial court and cannot see my way clear, having regard to the evidence before the court, that it is necessary for any reason whatever for the trial court to visit the locus in quo a second time. It is my view that since the trial court visited the locus in quo in order to give proper consideration to the application for interlocutory injunction before it and made definite observations in respect thereof, it was clearly unnecessary that a second visit to the locus should be made before the determination of the substantive suit. I think I court below was in error in holding to the contrary. Nor do I consider appropriate as ordered by the court below that the new trial Judge must, and should visit the locus at the trial of this action de novo. In my view, the discretion must rest with the new trial Judge who must not hesitate to visit the locus in quo if in his opinion such course of action appears to him desirable for a judicious determination of the dispute between the parties. (Pg. 206)
JUDGMENT:
A. I. IGUH, JSC. (Lead Judgment): Both parties are two neighbouring communities sharing a common boundary in the Ideato Local Government Area of Imo State.
By a writ of Summons issued on the 24th day of December, 1975, the plaintiffs, for themselves and on behalf of the people of Osina Community in Imo State, instituted an action against the defendants jointly and severally as representing their Akokwa Community at the Orlu Judicial Division of the High Court of justice Imo State claiming as follows:
1. A declaration that the Ekpe - An ancient trench is the boundary between Osina and Akokwa.
2. An injunction to restrain the defendants and the people of Akokwa from crossing the said ancient boundary and laying claim to land on the Osina side of the ekpe ditch.
Pleadings were ordered in the suit and were duly settled, filed and exchanged.
At the subsequent trial, both parties testified on their own behalf and called witnesses.
The case for the plaintiffs, briefly, is that from time beyond human memory, there has been an ancient ekpe trench that lies between the plaintiffs town of Osina and the defendants of Akokwa town. This trench was constructed by the joint effort of the ancestors of both communities and demarcated the land boundary between the two towns. The ekpe trench is more particularly shown on the plaintiffs survey plan No. MG326/76 which was tendered in evidence at the trial and marked Exhibit A. The plaintiffs and defendants from time immemorial had accepted and respected the said ekpe trench as the boundary between their two towns.
The plaintiffs claimed that in 1974, the defendants people of Akokwa in disregard of the ancient
Ekpe boundary crossed the trench into the territory of the plaintiffs people and forcibly laid claim to land on the plaintiffs side of the boundary by farming and building houses thereon. The plaintiffs claim that unless restrained by an order of court, the defendants people would continue to cross the said ancient ekpe trench at other points into the plaintiffs territory thus involving the plaintiffs in long drawn out and expensive litigation.
The defendants denied the plaintiffs claims and asserted that the ekpe trench shown on the plaintiffs survey plan, which is the only ekpe trench on what the defendants called the land in dispute did not constitute the boundary between Osina and Akokwa towns. They stated that the said ekpe trench lied well within the defendants Uhu Ehihi Oke land which they claimed was in dispute and that it was built by the defendants ancestors from time immemorial as their last line of defence. They claimed that the boundary between the plaintiffs Osina town and the defendants Akokwa lkpa land was and had always been as shown verged brown in the defendants plan No. IM/GA. 5349/77. They stated that at no time did they or their ancestors accept the ekpe trench as the boundary between Osina and Akokwa towns.
The defendants referred repeatedly to what they called the land in dispute and stated that it is a portion of their land known as Uhu Ehihi Oke. They claimed that the said Uhu Ehihi Oke land
in dispute had from time immemorial been in their exclusive and undisturbed ownership and possession. They stated that the said boundary verged brown was from time immemorial demarcated by the defendants with life trees and that both towns had always accepted the said trees as their correct boundary marks. The defendants pleaded a number of court cases which they claimed related to what they described as the land in dispute and relied on res judicata, numerous acts of ownership and possession of the land in dispute and estoppel by record.
At the conclusion of hearing, the learned trial Judge. Johnson, J, after what looked like a full scale declaration of title to land claim by the plaintiffs dismissed the suit.
Dissatisfied with this decision of the trial court, the plaintiffs lodged an appeal against the same to the Court of Appeal, Port Harcourt Division which court in a unanimous decision on the 5th day of November, 1996 allowed the appeal and set aside the judgment and orders of the trial court delivered on the 16th January, 1985.
The Court of Appeal further directed that in order to do substantial justice to both parties in the suit, it was desirable that the suit be tried de novo before another Judge of the Imo State High Court of Justice, Orlu Judicial Division other than Johnson, J. The High Court Appeal further ordered that the new trial Judge must, and should visit the locus in quo in order to have a thorough appraisal of what is actually in dispute between the parties once and for all.
Aggrieved by this decision of the Court of Appeal, both parties now appealed to this court.
Pursuant to the Rules of this court, the parties filed and exchanged their written briefs of argument. In the defendants/Appellants brief of argument, the following four issues are set out as arising for determination in the main appeal, that is to say: -
(a) Whether having regard to the pleadings of the parties, issue was joined in respect of any piece of land: Ground One.
(b) Whether it was competent for the Court of Appeal to have considered Exhibit K; if the answer is in the affirmative, whether the Court of Appeal was right in upholding the interference with the decision in Exhibit K; Grounds Two and Three.
(c) Whether the Court of Appeal was right in relying on the omnibus ground of appeal as a basis for evaluation of evidence demanded in the Respondents issue No. IV: Ground Four.
(d) Whether a second visit to the locus in quo was necessary in order to do justice to the case: Ground Five.
The plaintiffs/cross-appellants on the other hand, submitted one issue, which they described as the major question that arises for determination in the main appeal. This is couched thus:-
Whether the appeal in the court below can be successfully argued under the omnibus ground.
They added that if the answer to the major question is in the negative; another minor issue for determination would arise. This is framed thus: -
Were the remaining grounds of appeal sufficient to sustain the appeal.
The plaintiffs/cross-appellants further contended that if the major question is answered in the affirmative, that would naturally result in the dismissal of the defendants appeal.
In respect of the cross-appeal, two issues were identified on behalf of the plaintiffs/cross-appellants for the determination of the cross-appeal these are set out as follows:
(i) Having regard to the findings of the Court of Appeal on both the facts and the law in the matter herein, what order should that court have made?
(ii) Was the court below correct in striking out grounds 4, 9, 10 and 11 of the Grounds of Appeal and consequently issues Nos. (ii) and (iii) raised by the Appellants in their Brief of Argument.
For the defendants/cross-respondents, two issues were also distilled from the cross-appellants grounds of appeal for the determination of the cross-appeal. These are set out as follows : -
(1) Whether the lower Court was correct in striking out Grounds 4, 9, 10 and 11 of the Grounds of Appeal and issues (ii) and (iii) in the Appellants Brief of Argument: Ground (I)
(2) Whether the Appellants were entitled to judgment as a result of the conclusion of the lower Court: Ground (ii).
I have given a close attention to the various issues raised by the parties in both the main appeal and the cross-appeal but must, with respect observe that some of them appear to me as not touching the root of the main question that calls for decision in these appeals. It is clear from the appeals of both parties that the real dispute revolves on the order of the court below which allowed the appeal of the plaintiffs before it, set aside the judgment and orders of the trial court and remitted the case to the High Court for trial de novo before another Judge. Whilst the defendants argued that the judgment and order of retrial of the Court of Appeal are erroneous on point of law and that the judgment of the High Court ought to be restored, the plaintiffs contended that the said order of retrial ought to be set aside and judgment entered in their favour as they established their case on the balance of probability.
It seems to me that having regard to the central question in controversy between the parties and the grounds of appeal filed in both the main appeal and the cross-appeal, the following issues are adequate for the determination of these appeals, namely:
(i) Whether the Court of Appeal was right by holding that the learned trial Judge in his approach to the trial misconceived the case before him by his repeated reference to land in dispute as if the claim before the court was that of declaration of title to a specific piece or parcel of land in dispute between the parties when the claim before him was simply that of declaration that the ekpe trench is the boundary between the parties.
(ii) Whether the Court of Appeal was right when it held that the learned trial Judge did not properly evaluate the evidence before him relating to the main fact in issue; namely, whether or not the ancient ekpe trench is the boundary between two parties.
(iii) Whether the decision for a retrial of the case ordered by the Court of Appeal is justifiable having regard to all the circumstances of the case.
At the oral hearing of the appeals, both learned counsel for the parties adopted their respective briefs of argument and high-lighted some of the more important of the issues therein canvassed.
The main argument of learned counsel for the appellants, M. O. Nlewedim Esq. is that what was in issue before the trial court is a land case as the learned trial Judge could not have done justice to the respective contentions of the parties without deciding the question of ownership of what he called the land in dispute, in respect of which trespass was alleged against the respondents. He explained that it was in this context that the trial court made reference to the land in dispute. He submitted that having regard to the cross-appellants claim for an injunction to restrain the appellants from crossing the alleged ancient ekpe boundary, the approach of the trial court must be regarded as impeccable. He conceded that the trial court made references to the land-in dispute several times in its judgment but argued that no miscarriage of justice was thereby occasioned. Relying on the decision in Ladejo Onifade v. Alhaji Ayiwola and others (1990) 7 NWLR (Part 161) 158 at 171, learned counsel submitted that mere existence of an error in a judgment need not lead inexonerably to its reversal unless a miscarriage of justice was thereby occasioned.
On issue 2, Mr. Nlewedim contended that the omnibus ground of appeal was not a proper basis for the lower court to consider evaluation of evidence by the trial court. He submitted with regard to issue 3 that the order for a retrial of the case based on the need for the trial court to visit the locus in quo was made in error as there were no conflicts in the evidence of the parties vis-à-vis their pleadings as suggested by the court below which necessitated a second visit to the locus. He urged the court to resolve all three issues in favour of the appellants and to allow the main appeal, set aside the decision of the Court of Appeal and dismiss the plaintiffs claims and the cross-appeal.
Learned counsel for the plaintiffs/cross-appellants, T. E. Williams Esq., in his reply, referred to the judgments, Exhibits D and E and submitted that they established that the Ekpe trench is the boundary between the two towns. He pointed out that the oral evidence adduced by the respondents was in line with their pleadings and documentary evidence. He contended that the Court of Appeal having resolved all the material questions for determination in the appeal in favour of the respondents ought to have proceeded to enter judgment in their favour. He submitted that all the issues raised by the cross-appellants were successfully argued under the omnibus ground of appeal.
On the question of visit to the locus in quo, Mr. Williams conceded that there was no need for a second visit to the locus. He urged the court to dismiss the appellants appeal, allow the
cross-appeal and to enter judgment for the 'cross-appellants as claimed.
I think it is convenient to deal with all three issues together. The starting point in dealing with these issues is to examine briefly the pleadings of the parties. In this regard, it is necessary to set out paragraphs 4 to 7, 11 to 13, 18 and 19 of the plaintiffs Statement of claim. These aver as follows:
4. From time immemorial there is an ancient Ekpe trench that lies between the plaintiffs town of Osina and the defendants town of Akorkwa. This Ekpe trench is specifically shown on Plan No.MG.326/76 filed with the Statement of Claim.
5. The plaintiffs and the defendants in olden days had consistently accepted and respected that ekpe trench as the boundary between the two towns.
6. As time went on the people of Akorkwa became more populous and affluent whilst the people of Osina lost a lot of their members by death and are mostly farmers.
7. The people of Akorkwa relying on their superior number and wealth sought avenues to accommodate its teeming population and started to cross the traditional boundary into Osina land defacing trench in certain places.
...... ..
11. Several civil cases had been fought between the defendants and their neighbors because the defendants crossed the traditional boundary.
12. The defendants people of Akorkwa in search for more land crossed the ekpe trench into Uzi - a neighboring village - the case went up to the West African Court of Appeal which found for the people of Uzi and declared that the ekpe was the traditional boundary.
13. The defendants people of Akorkwa crossed the ekpe wall, laid claim to and occupied Osina land at Umuakpaka Ofeke Osina. This resulted in a long drawn case which ended in favour of Umuakpaka Osina at the West African Court of Appeal - the Court declared the ekpe ancient ditch to be the traditional boundary. The plaintiffs will at the trial rely on the proceedings and judgment in WACA 145/1953.
...... ..
18. In or about 1974 the people of Akorkwa crossed the Ekpe trench laying claim to farming and building houses on Osina side of the trench as shown on Plan No. MG 326/76 filed with the statement of Claim, moving deep into Osina homestead despite protests from the plaintiffs.
19. Unless restricted the Akorkwa people will certainly cross the said Ekpe trench at any other point thus involving the people of Osina in long drawn out and expensive litigation; as well as numerous Police action.
The plaintiffs then claimed as earlier set out in this judgment. Perhaps, for ease of reference, I should repeat the plaintiffs claims against the defendants jointly and severally which are for : -
1. A DECLARATION that the Ekpe - an ancient trench is the boundary between Osina and Akorkwa.
2. AN INJUNCTION to restrain the defendants and the people of Akorkwa from crossing the said ancient boundary and laying claim to land on the Osina side of the ekpe ditch.
The above paragraphs of the plaintiffs Statement of Claim were answered by the defendants in paragraphs 4 to 6 and 9 of their Statement of Defence. These aver as follows:
4. The defendants deny paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20 of the Statement of Claim and put the Plaintiffs to strict proof thereof.
5. The Defendants deny paragraphs 4 and 5 of the Statement of Claim and aver that the Trench shown on Plaintiffs Plan No. IM/GA. 5349/77 which is the only EKPE Trench on the land in dispute does not lie at the Boundary of Osina and Akorkwa. The said EKPE Trench lies well within the Defendants UHU EHIHI OKE Land in dispute and was built by the Defendants ancestors from time immemorial as a last line of defence, well within Akokwa Lands.
6. The Defendants further aver that the Boundary between the Plaintiffs