When conducting a locus in quo, a judge should be wary not to substitute himself as a witness

 

NWAKU V. DANA & ORS (2018) LPELR-46012(CA)

In The Court Of Appeal (YOLA JUDICIAL DIVISION).
On Wednesday, the 5th day of December, 2018.  Before Their Lordship: OYEBISI FOLAYEMI OMOLEYE J.C.A ,JAMES SHEHU ABIRIYI J.C.A ,SAIDU TANKO HUSSAINI J.C.A .

Suit No: CA/YL/92/2018    

Between
MR. RICHARD NWAKU APPELLANT(S)
And
1. ABUBAKAR YUSUF DANA
2. UMAR YUSUF DANA
3. HASSAN YUSUF DANA
4. ABULLAHI YUSUF DANA
5. ADAMU YUSUF DANA
6. IBRAHIM YUSUF DANA
7. USMAN YUSUF DANA
8. ISAH YUSUF DANA
9. SULEIMAN YUSUF DANA
10. BELLO YUSUF DANA
11. SANUSI YUSUF DANA RESPONDENT(S)

SUMMARY OF FACTS: 
This is an appeal against the decision of the High Court of Taraba State. The 1st-19th respondents were the plaintiffs in the suit commenced by them at the High Court vide the Writ of Summons taken and filed on the 17th December, 2018 in Suit No. TRSJ/24/2015. Their claim is endorsed in the Writ and the amended statement of claim. It was for a declaration of title in respect of the land in dispute in favour of the plaintiffs and also a declaration that the defendants are trespasser (sic) on the land in dispute.

The case for the 1st -19th respondents as presented in the joint statement of claim (as amended) was that their deceased father, Yusuf Dana Danburam left behind a parcel of land described as being situate in Jauro Yunu Hamlet. He was said to have acquired the land by acts of deforestation and thereafter put the land to use. Their father also obtained title documents to cover the land. This he did before he passed on. The 1st -19th respondents or some of them took over the use of the land left behind by their father. However sometimes in the year 2013, in the course of the routine inspection of the land, the 1st appellant noticed a building foundation being dug on a portion of the land. Upon inquiry he found that the appellant dug that foundation and when confronted the appellant claimed to have bought the piece of land from the 20th respondent.

The 20th respondent and the appellant who were sued as the 1st and 2nd defendants at the High Court denied the claim against them. The High Court took evidence of witnesses, and in the judgment delivered on the 27th March, 2018 the Court found for the 1st -19th respondents in terms of the order drawn up. By that decision of the High Court the appellant was adjudged a trespasser and accordingly restrained perpetually from further interference with the land in dispute. He was ordered to pay the sum of N300,000 as damages for trespass.

Dissatisfied with the decision, the appellant appealed to the Court of Appeal.

ISSUES FOR           DETERMINATION: 
The Court determined the appeal on these issues couched as follows: 1. Whether from the pleadings and the evidence led at the trial Court, the trial judge was right in holding that the identity of the land in dispute was no longer in issue and when he proceeded to grant the 1st – 19th respondents declaration of title, injunction and damages in their favour particularly in the face of conflicting and contradictory evidence of the plaintiffs’ witnesses in the court below.

  1. Whether the learned trial Judge can be said to be right in finding the appellant liable for trespass and in granting injunction and damages against him after finding the 1st defendant (20th respondent) not liable having regard to the pleadings and evidence led by the 1st-19th respondents in respect of the land they alleged to be in dispute.
  2. Whether the learned trial Judge was right in relying on the events that allegedly took place during the visit said to have been conducted to the locus in quo in finding for the 1st -19th respondents. 4. Whether the learned trial Judge can be said to have properly evaluated and correctly resolved the conflicting evidence of traditional history offered by the plaintiffs on one hand and the defendants on the other, assuming but without conceding that the plaintiffs had properly identify the land they were claiming and particularly when he relied on Exhibit P1, P3 and P4 in so doing.

ARGUMENTS
IssueNo.1
In respect of issue No. 1, appellant contended that the land, the subject-matter of dispute, upon which a declaratory order was made was not particularly identified and yet the trial court found in favour of the 19th respondents. He argued that where the identity of land is put in issue, as in this case, the duty on the claimant was to prove the identity of the land with precision and certainty. It was further argued that the findings made at trial court to the effect that the land is situated in Jauro Yunu village was a vague finding so far as evidence did not disclose so.

The respondents on their own part argued in respect to issue No. 1 that the trial Judge was right when he held that the parties were ad idem in respect to the locality and identity of the land in dispute over which a declaratory order and injunction were made. To the learned counsel therefore, the identity of the land in dispute was not an issue before the court. On the question of the contradictions in terms of the boundary of the land vis a via the pleadings of plaintiff and evidence adduced in support, respondent argued that contradiction was not enough to make the appellant succeed in this appeal more so that these are minor discrepancies.

IssueNo.2
In this regard, appellants counsel argued that had the trial judge averted his mind to the courtings of the plaintiff and evidence led at the trial court, he ought not to have found the appellant liable for trespass especially since the 20th respondent (from whose father the appellant derived his interest) was absolved on the claim against him for trespass.
On the respondents’ part, it was argued that the trial court was right in his decision on the issue of trespass, over which the appellant was found liable and thus restrained. To the respondents, it was argued that the 20th respondent was not the vendor who sold portion of the land in dispute to the appellant hence the 20th respondent could not be held liable in trespass.

IssueNo.3
On this issue, the appellant submitted that the trial court could not rely on the findings because apart from the fact that there was nothing on the printed record of appeal to indicate at what stage the trial court considered it necessary to visit the locus In quo, the record of proceedings at the locus in quo was silent over events that led to the conclusion that the identity of the land in dispute was known to the parties, including the defendants at the trial court.

Further, that inspection visit took place on 27th January, 2018, a Saturday, contrary to the provisions of Section 66 of the High Court Law of Taraba State. Appellant therefore urged the Court to expunge the findings of the trial Court relating to the conduct of proceedings at the locus In quo visit and if expunged, especially the portion relating to the identity of the land in dispute, which the trial Judge only resolved after the visit to the locus In quo visit, there was nothing to support the conclusion in the declaratory order made in favour of the 1st 19th respondents.

On this third issue, the respondents posited that the trial court could rely on the events at the locus in quo in making a finding in favour of the 1st -19th respondents. He argued that the absence of record of events of proceedings at the locus in quo was not fatal to the case particularly since parties and their counsel who were present at the locus In quo inspection did not complain over the procedure the trial court adopted at the inspection and that the day on which the locus in quo was conducted didn’t matter.

ISSUE NO.4
In relation to issue No. 4, learned counsel for the appellant argued that the trial court did not take the proper or right approach when after receiving the case of the plaintiffs (1st- 19th respondents) concluded that the plaintiffs had proved their case even before the case of the defendants (that is, the appellant and the 20th respondent) were considered.

COURT’S FINDINGS 
Regarding Issue 1, the court said that where the identity of a land is put in issue, particularly in cases such as this, where the relief sought, is among others, for a declaratory title to land; the person seeking the declaratory order willy-nilly must prove with certainty, the identity of the land to which the order sought relates.

As a matter of fact, the court posited that proof of the identity of the land in dispute is the first major step a claimant needs to surmount in his quest for declaration of title as same is a sine qua non to declaration of title to land and the onus is on the plaintiffs to show by evidence that the identity and boundaries of the land in dispute is certain. Finally, that In the event that the claimant failed to prove the identity of the land in dispute, his claim must not only fail, it stands dismissed.

On issue No. 2, the Court, without mincing words said since the identity of the land in dispute has not been proven, an order of injunction restraining the appellant for alleged trespass, cannot stand.

In considering issue No. 3, the Court found that where or when it becomes necessary for the court to pay an inspection visit to the locus in quo, courts should not hesitate to do so if such visitation will clear any grey areas or ambiguities attendant to evidence earlier adduced by the parties. The case of Obi Vs. Mbionwu & Ors (2002) LPELR-2164(SC) was called in aid.

The court reiterated that a visit to the locus in quo is not just for the court to visualize objects and things on the ground but very significantly, the visit is for the parties and witnesses to point out those things that are material to their case. The court, as expected, conducted those proceedings and take note of same before coming to any definite conclusion on the question whether or not the land in dispute is known to the parties. The record of court should reflect the proceedings at the locus In quo including those things or features the parties pointed at as material to their case.

The court observed that in this case, there is nothing on the record to indicate that parties and their witnesses gave evidence during the locus In quo visit, neither is anything shown on the record that by the features pointed at by the parties during the inspection visit, it is proper to arrive at the conclusion that the land in dispute is known to the parties and have identified it as such. Conclusively, on this issue, the court posited that the trial court, by coming to the conclusion that the land in dispute was known to parties, placed itself in the position of a witness.

Finally, issue No. 4, it was the court’s position that having resolved issues 1,2 and 3 in favour of the appellant, issue No. 4 becomes an academic question which must be ignored.

HELD
The appeal was on the whole held to be meritorious and the same succeeds. Appeal was thus allowed. consequently, the decision of the High Court of Justice of Taraba State delivered on the 27th March, 2018 in Suit No. TRSJ/24/2015 was set aside and the claim before it was dismissed.

Cost assessed in the sum of N100,000 was granted to the appellant and against the 1st- 19th respondents.

Appearances:
A. J. Akanmode, Esq. with him, A. C. Obadiah, Esq., Farang and F. S. Bashir, Esq. For Appellant(s)
Z. J. Andekan, Esq. with him, M. A. Danlami, Esq. For Respondent(s)
Compiled by: LawPavilion

 

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