–
CHIEF AARON NWIZUK AND OTHERS
V.
CHIEF WARRIBO ENEYOK AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
5TH DAY OF NOVEMBER, 1953
APPEAL NO. 115/1953
2PLR/1953/55 (WACA)
OTHER CITATION(S)
2PLR/1953/55 (WACA)
(1953) XIV WACA PP. 354-356
LEX (1953) – XIV WACA 354-356
–
BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
COUSSEY, J.A.
DE COMARMOND, S.P.J., NIGERIA
–
BETWEEN
CHIEF AARON NWIZUK AND OTHERS – Appellants
AND
CHIEF WARRIBO ENEYOK AND OTHERS – Respondents
–
ORIGINATING COURT(S)
Appeal by plaintiffs against the judgment of the Supreme Court, Port Harcourt Judicial Division
–
REPRESENTATION
F. H. A. Williams with Onyeama — for Appellants
J. I. C. Taylor with Ibekwe — for Respondents
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE ANF PROPERTY LAW:- Dispute over land — Inspection of the land in dispute (some islands) by court with parties’ representatives — Adverse admissions onsite negativing evidence already given in court — Judgment incorporating evidence received at site — Whether a mistake of law enough to invalidate decision of court on appeal
–
PRACTICE AND PROCEDURE ISSUE(S)
EVIDENCE — VISIT TO LOCUS IN QUO:- Inspection by court — Admissions made by parties at inspection — Absence of record of inspection — Legal effect
–
CASE SUMMARY
After the evidence the Judge went to inspect the land in dispute – some islands in this case — in the presence of two plaintiffs as representing the plaintiffs and of a defendant representing the defendants. There the defendant admitted that some of the evidence given for his side was untrue and the two plaintiffs admitted that evidence given for them regarding some at least of the islands was false. In the judgment dismissing the plaintiffs’ claim to the islands the Judge gave an account of his inspection and mentioned the said admissions. The plaintiffs appealed arguing that it was a mistake of law to take into account statements made at the inspection; that the Judge ought to have recalled those concerned for further examination; and also that there ought to have been a separate note of the inspection made at the first opportunity. (The other ground was against the findings of fact on the evidence, but the Court of Appeal saw no reason to disagree.)
–
DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
(1) The Court did not cease to be a Court when on inspection and the statements were as much oral admissions by a party in Court as if they had been made in a Court-room, and could be taken into account as such.
(2) The absence of a record of the inspection is not fatal; statements by the Judge in a solemn judgment must be taken as a correct account of what occurred and therefore final.
(3) The trial Judge rightly exercised his discretion in refusing the plaintiffs a declaration of title as the plaintiffs had failed to discharge the onus by evidence essential in an action of this nature.
–
–
MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J. A.
This is an appeal from the judgment of the Supreme Court, Port Harcourt Judicial Division, dismissing the plaintiffs-appellants’ claims for a declaration of title, damages for trespass and an injunction in respect of eighteen islands in the statement of claim referred to as the land in dispute. The action was instituted in the Southern Kaja Clan Court, Baen, Ogoni Division and it was transferred by a Divisional Officer to the Supreme Court for determination. After hearing the evidence of both parties, the Court, before delivering judgment dismissing the plaintiffs’ claims, embarked upon an inspection of the area in dispute. Incidents that took place in the course of that inspection furnish, as will appear later, the principal ground of appeal which has been argued before this Court.
At the conclusion of the evidence and of counsel’s addresses the Court below intimated a desire to inspect some of the islands in dispute on a date to be notified to the parties. On the 1st September, 1952, the trial Judge set out in a launch in which were, amongst others, the first and third plaintiffs representing the plaintiffs … Representing the defendants, and in the same launch, were the second defendant, and Chief Lambert Ogbulekan who had given evidence as the fourth witness for the defendants. It is to be noted that the third plaintiff Torkon Piagbara had given evidence as the plaintiff’s fourth witness.
When the parties realised that the Court, at that stage, was about to substitute the eye for the ear in the reception of evidence, it appears that both parties were not prepared to deceive the Court further as to certain oral testimony already given regarding parts of the land in dispute. It is recorded by the learned Judge in the course of his judgment that the second defendant admitted that some of the evidence of the defendants as to Kue Kale Island and Kue Kale Island was untrue while the first and third plaintiffs admitted that evidence given for the plaintiffs regarding at least four islands was false in material particulars. In the judgment the learned trial Judge concludes his account of the inspection as follows:-
“The inspection has shown me forcibly how much of the evidence of litigants in land cases can be relied upon by the Court. Both sides in this case have lied to me, the Ogoni side (plaintiffs) far more horribly than the Adonis (defendants).”
The plaintiffs-appellants’ third ground of appeal is that the learned Judge erred in law in taking into consideration statements made during the inspection of the land in dispute without recalling those who made such statements for further examination. It is submitted that after the inspection evidence should have been taken on oath touching the above matters, and that in the absence of such evidence on oath the learned Judge permitted his mind to be charged with matters not properly proved and to the disadvantage of the appellants.
In our opinion this contention disregards the fact that the Court did not cease to be a Court because it was on inspection away from a Court-house. The statements were as much oral admissions by a party in Court as if they had been made in a Court-room. They were matters before the Court which the trial Judge could take into consideration without the observance of section 179 of the Evidence Ordinance which provides that oral evidence should, with specified exceptions, be taken on oath. It is also submitted that a separate record or note of the inspection should have been made by the trial Court and that there should have been a record of the language in which the parties, being illiterates, addressed the Court so that it may appear that the learned Judge was satisfied that statements were correctly conveyed to him.
In making these two submissions learned counsel for the appellants explained that he did not impugn the learned Judge’s narrative of what took place – indeed he could not do so as no affidavit in contradiction of the incidents described had been filed – but he pointed out that the practice of the Court is to record a note of an inspection at the first opportunity. While the usual practice may be as stated, it is not necessary in every case, nor is the absence of such a record necessarily a fatal defect. In the present case we consider that statements such as these by a Judge in a solemn judgment of the Court must be taken to be a correct account of what occurred and therefore final. As to the second point no specific issue has been raised as to interpretation; the presumption therefore is that the proceedings before the Court were conducted formally, correctly and honestly.
The remaining grounds of appeal attack the Court’s findings of fact. There was no claim before the Court that the Pene Kana River as described by the plaintiffs-appellants formed the boundary between the parties so that the Court erred, as the plaintiffs-appellants contend, in failing to declare a boundary. By implication, however, the refusal of the Court to grant the declaration of title prayed for involves a failure on the part of the plaintiffs to establish the river referred to as a boundary in this suit.
After considering carefully the evidence in this suit, we are satisfied that the learned trial Judge rightly exercised his discretion in refusing the plaintiffs a declaration of title. The trial Judge was in a far better position to weigh the evidence than this Court is and his conclusion that the plaintiffs had failed to discharge the onus by evidence essential in an action of this nature will not be disturbed.
We therefore dismiss this appeal.
–
VERITY, C.J.
I concur.
–
DE COMARMOND, S. P. J.
I concur.
Appeal dismissed.
–