IN THE COURT OF APPEAL OF NIGERIA
On Wednesday, The 7th day of May, 2014
COL. SATI MWANA ................. Appellant
MRS MARY GOMWALK .............. Respondent
E. I. Ndubueze for Appellant
C. H Nwazuo for Respondent
CHIOMA E. NWOSU-IHEME (Ph.D) J.C.A. (Delivering the Leading Judgment):
The Appellant in this appeal is appealing against the judgment of Sha J. of the Plateau State High Court sitting in Jos delivered on the 16th of July 2009 in Suit No PLD/J85/2001 dismissing the Appellant's claim.
The Appellant (as plaintiff) in the lower Court sued the Respondent (as defendant) seeking the following reliefs:
"(i) An order of interlocutory injunction restraining the Defendant either by herself, servants or privies from erecting any structure or continuing to erect any structure on the access road or blocking the access road to the Plaintiff's property lying and situate at Rock Haven New Layout, Jos, covered by C of O No BP4377, pending the determination of this Suit.
(ii) An order of interlocutory injunction restraining the Defendant, her agent's privies or servants from doing any act or further acts calculated to deny the Plaintiff access to his property with C of O No BP 4377 pending the determination of this Suit."
The Respondent countered the averments contained in the motion. The trial Judge before Ruling on the application visited the locus in quo in company of both Counsel.
The statement of claim was later amended on 24th March, 2004. On the.......of January 2003 the Court delivered its Ruling dismissing the application brought by the Appellant.
After series of amendments and applications, pleadings were filed and exchanged and the matter proceeded to full hearing after which the learned trial Judge dismissed the claim of the Appellant in its entirety.
The Appellant was dissatisfied with both the Ruling and the Judgment. This appeal is predicated on both.
Learned Counsel for the Appellant formulated three issues out of Four Grounds of Appeal, they read
"1. Whether or not the trial Court was right in the evaluation of the evidence led before it in dismissing the Plaintiff's claim (Grounds 1 and 2)
2. Whether or not the trial Court was right in using its perception, on which no evidence was led at the locus in quo/Court, in arriving at its decision (Ground 3)
3. Whether the Plaintiff/Appellant's case was not prejudiced by the trial Court pronouncing upon the substantive case at the interlocutory stage (ground 4)
Learned Counsel for the Respondent also formulated three issues for determination as follows:
"(i) Whether or not the trial Court was right in the evaluation of the evidence led before it in dismissing the Plaintiff/Appellant's claim?
(ii) Whether the Court was right by visiting the locus in quo at the interlocutory stage and using its observation to deliver its ruling and a further visit at the trial before pronouncing upon the substantive case at the Judgment?
(iii) Whether the Plaintiff/Appellant can successfully merge or incorporate an interlocutory ruling to the final decision of the trial Court on appeal without first seeking and obtaining leave of the Appellate Court?"
Both Counsel identified three issues for determination though couched differently are basically the same. A consideration of the issues as formulated by the Respondent's Counsel will also take care of those formulated by the Appellant's Counsel. I will, therefore, proceed to consider the merits of this appeal on the issues outlined by the Respondent's counsel already set out above.
In his argument, learned Counsel for the Appellant contended in summary, that it was erroneous for the trial Judge to predicate his judgment on what he personally observed at the locus in quo and not on facts adduced by the Appellant and Respondent from the record. Counsel argued that the learned trial Judge also prejudiced the Appellant's case by declaring at the interlocutory ruling that the Court saw a good and motorable road leading to the Appellant's property from the main street to the gate. A pronouncement which Counsel submitted led to a miscarriage of justice on the side of the Appellant.
He contended that if the learned trial Judge had evaluated the evidence before him properly, he would have arrived at a different decision.
He cited OGUNLEYE V. ONI (1990) 2 NWLR (PT. 135) 745 at 783
EGOM V. ENO (2008) 12 NWLR (PT. 1098) 320 at 336.
AGBAREH V. MIMRA & 2 ORS (2008) I.S.C (PT.111) 88 at 111 - 112
ZEKERI V. ALHASSAN (2002) 14 NWLR (PT.786) 52 at 72 among others.
In his reply learned counsel for the Respondent submitted that the Certificate of Occupancy, Exhibit 1, which the Appellant relied on in proof of his case at the trial Court, was not relevant to his claim. That Exhibit 2 which is a letter of complaint against a person who is not a party to the Suit is not admissible against the Respondent and goes to no issue.
He contended that the trial Court properly evaluated the evidence adduced before it by parties in Court and that what is observed at the locus in quo without calling additional evidence did not in any way result in miscarriage of justice rather it provided the Judge a clearer picture of the res which led to a just decision of the matter before the Court.
Counsel argued that failure of the trial Judge to make note at the locus also did not occasion miscarriage of justice.
Counsel further submitted that the learned trial Judge was well within the law to rule on the interlocutory application before going into the substantive suit and that this in no way prejudiced the substantive suit.
He maintained that an Appellant cannot successfully incorporate or merge an interlocutory decision or ruling with the final judgment of the trial Court without first seeking leave of the Appeal Court to appeal out of time.
He cited MOGAJI & 2 ORS V. ODOFIN & 7 ORS (1978) 4 S.C 91 at 93 -94
ALAO V. KURE (2000) FWLR (PT.6) Pg 889.
IFER V. IKYANYON (2000) FWLR (PT.17) pg 42 at 47.
OGIGIE V. OBIYAN (1997) 10 NWLR (pt.524) Pg 179 among others.
On the first issue which is whether the trial Court rightly evaluated the evidence before it before arriving at its decision.
It is trite that on the issue of credibility of witnesses, the trial Court has the sole duty to assess witnesses, form impressions about them and evaluate their evidence in the light of the impression which the trial Court forms of them.
Exhibits 1 and 2 tendered by the Appellant in proof of his case at the lower Court is an example.
The Certificate of Occupancy cannot be said to be relevant considering the nature of the claim of the Appellant. The said exhibit "1" can only serve as an evidence that the Appellant is the owner of the property in that area, that is about all. The said Certificate of Occupancy becomes relevant if the claim of the Appellant was for encroachment or trespass to his land. The trial Judge was therefore well within the law to hold that Exhibit "1" the Certificate of Occupancy has no evidential value. Same as Exhibit 2 which is a complaint against a person who is not a party in the Suit and also the trial Court's evaluation of the evidence of witnesses.
See ALAO V. KURE (2000) FWLR (PT.6) Pg 889.
It is therefore my humble view that the evaluation of evidence done by the trial Court is not against the weight of evidence.
Issue One is resolved against the Appellant in favour of the Respondent.
On issue two on whether the trial Court was right to have visited the locus in quo at the interlocutory stage and making use of its observation in its ruling.
Section 127 of the Evidence Act 2011 (as amended) makes it clear that visit to locus in quo by a trial Judge in the course of hearing a matter is not a mandatory procedure, but entirely at the discretion of the trial Judge.
A Judge may in his effort to evaluate uncertainty of oral descriptions and cloudy testimonies in evidence of disputing parties during proceedings suo motu resolve to visit the locus in quo. Parties are also entitled to apply for a visit to locus in quo while the court has the discretion to refuse or grant such application so made if need be. Clarity of events is the main purpose of visit to the locus in quo. It is therefore for the benefit of the Court and the parties.
See IFER V. IKYANYON (2000) FWLR (PT. 17) 42 at 47 -
"A visit to locus is not an avenue designed to afford the Court an opportunity to substitute the evidence on record with the impression it got as a result of the visit.
It is meant to enable the Court to understand the questions that are being raised."
See IPINLAYE V. OLUKOTUN (1996) SCNJ 74 at 95.
Where there exists such conflicting evidence as contained in the affidavit evidence and the counter affidavit, 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. SEE SEISMOGRAPH SERVICES LTD V. APORUOVO (1974) 6 S. C. pg 199.
The purpose of an inspection 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.
The primary purpose is to enable the Court to understand the questions that are being raised at the trial and to follow the evidence and apply such evidence. Although the ideal practice is for the Court to record the full notes of the inspection in its record, absence of such record of the inspection of a locus in quo is not fatal to the validity of the judgment. See OLUSANMI V. OSHASONA (1992) 6 NWLR (PT.245) Page 32 at 38.
Every case must be viewed in its own perspective. The interlocutory application before the trial Court was such that a visit to the locus was very necessary. It is my humble view that the visit to the locus in quo at the interlocutory stage was well within the law and did not in any way affect the justice of the matter in the substantive suit. Rather, it gave the Court a clearer picture of the issue which in turn helped the trial Court in arriving at the justice of the matter.
This case is peculiar and has to be looked at in that perspective.
Considering the nature of the application and the claim itself, there was need for the trial Court to convince itself that the Appellant was not unjustifiably denied his right to access road by the refusal of his application by the Court. On the other hand the Court needed to convince itself that its order was not in vacuum and in vain.
The visit to the locus in quo at the interlocutory stage was therefore in order. The Learned trial Judge was also well within the law to have dealt with the interlocutory application before him before going into the substantive case. In view of the peculiar nature of the application, the Court couldn't have ruled otherwise.
In the matter before the trial Court, the application and the claim were almost the same.
It is therefore a peculiar situation. It was obvious that in the situation the trial Court found itself, there can really not be a severance between the application and the claim. It is my humble view therefore that the way and manner the trial Court handled both the interlocutory application and the substantive claim did not occasion any miscarriage of justice and did not divest itself of the jurisdiction to hear the substantive claim.
Issue two is also resolved against the Appellant in favour of the Respondent.
On issue three as to whether the Appellant could successfully merge or incorporate an interlocutory ruling to the final decision, this has been made clear by the Supreme Court.
"Where a party after a final Judgment finds it expedient to appeal against the judgment and also against the interlocutory ruling or decision, he may proceed to marry both appeals, subject however, to his also obtaining leave to appeal against the interlocutory decision if he is not out of time with regards to the interlocutory decision. He shall also obtain leave to appeal out of time. If he is out of the fourteen (14) days enacted by Section 25 of the Court of Appeal Act, he must obtain leave to appeal out of time."
See OGIGIE V. OBIYAN (1997) 10 NWLR (PT.524).
The Appellant's Counsel filed a Reply brief, but since it did not make any difference in this appeal, there is no need dwelling on it.
In view of the above, issue three is also resolved against the Appellant in favour of the Respondent. This appeal is dismissed and the judgment of the trial Court is affirmed. I award N30, 000 costs in favour of the Respondent.
TIJJANI ABDULLAHI, J.C.A.:
I have had the privilege of reading in draft the lead judgment of my learned brother, C.E. Nwosu-Iheme, JCA, just delivered. I am in complete agreement with her reasoning and conclusions arrived thereat.
A close look at the judgment of the lower Court will leave no one in any doubt that the judgment of the lower Court complained about contained all the ingredients/elements of a good judgment. This being the case, the complain of the Appellants that the style adopted by the learned trial Judge in writing the judgment that led to this appeal is of no moment in this appeal.
For this reason and the fuller ones contained in the lead judgment of my learned brother, I too dismiss the appeal and abide by the order as to costs contained therein.
IBRAHIM SHATA BDLIYA, J.C.A.:
I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, NWOSU-IHEME, JCA. I am in full agreement with the reasonings and conclusion arrived at in dismissing the appeal for being unmeritorious. I wish, however, to say a few words, on when a visit to the locus in quo is appropriate, what a court of law is expected to do thereat, and how the evidence taken thereat can be taken and relied upon in deciding a matter before the court.
There is no rule of law which determines at what stage in a trial a visit or inspection must be made. 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. Where there are two conflicting evidence adduced by parties to a case, it is necessary to visit the locus quo if such a visit can resolve the conflict in the evidence. See Shekshe vs. Plankgho (2008) 15 NWLR pt. 1109 p. 105 @ 117 and Enigwe vs. Akaigwe (1992) 2 NWLR Pt.225 P. 505.
A visit to the locus in quo must be undertaken only on the application of one of the parties or with the consent of all of them at the instance of the court. The request must be granted where it will assist to identify the Land in dispute. See (Briggs v. Briggs (1992) 3 NWLR (Pt.228)128; Odiche v. Chibogwu (1994)7 NWLR (Pt. 354) 78; Enigew v. Akaigwe (1992) 2 NWLR (Pt. 225) 505; Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 385; Ajao v. Adigun (1993) 3 NWLR (Pt.282) 389.
Section 127(1)(2) of the Evidence Act 2011 (amended) lays down two broad procedures for a visit by a trial court to the locus in quo. Such trial court may either adjourn to the locus for further hearing of the case as prescribed by law until it adjourns back to the court room or it may simply move to the locus and make an inspection of the subject matter and return to the court for evidence, if any, of what transpired at the inspection to be taken. In all cases in which a visit to the locus in quo is made by the court, the court should be careful to avoid placing itself in the position of a witness and arriving at conclusion based entirely upon his personal observation at such locus and of which there is no evidence on the record. Observations of the judge at the locus are not evidence unless such evidence has been properly received at the locus or in court through witnesses in situations in which the adverse party is given opportunity to cross-examine the witness.
The learned trial judge in his visit to the locus in quo properly complied with the procedure laid down for such visit. The evidence adduced during the locus in quo was therefore properly admitted and relied upon by the learned trial judge. See Nmadi v. Amadi (2011) 4 NWLR Pt. 1238 P. 553 @ 569; Ogundele v. Fasu (1999) 12 NWLR Pt.632 P.662 and Aboyeji v. Momoh (1994) 4 NWLR Pt. 341 P. 646.
In the final result, and for all the reasons given above and, also for the fuller reasons in the lead judgment of my learned brother, Nwosu-Iheme, J.C.A., which I now adopt as mine, l, too, dismiss this appeal, I therefore, affirm and confirm the judgment of the High Court of Justice, Plateau State in suit No. PLD/J/85/2001, delivered on the 16th July, 2001. I abide by the consequential order(s) made in the lead judgment.