OPUFAA SMITHERS BRIGGS V. ABIGAIL EVERETT WILLIAM BRIGGS (1992)

OPUFAA SMITHERS BRIGGS V. ABIGAIL EVERETT WILLIAM BRIGGS

(1992) LCN/2488(SC)

In the Supreme Court of Nigeria

Friday, March 27, 1992

Case Number: SC.211/1986

RATIO

APPEAL – INTERFERENCE WITH CONCURRENT FINDINGS OF FACT: SPECIAL CIRCUMSTANCES WHERE THE SUPREME COURT CAN INTERFERE WITH CONCURRENT FINDINGS OF LOWER COURTS

“That the facts of this case come within the special circumstances where this, Court will disturb the concurrent findings of the two lower courts because such concurrent findings of facts here occasioned a miscarriage of justice and a serious violation of some principles of law or procedure which shows that the said findings are erroneous.”PER BABALAKIN, J.S.C.

EVIDENCE- VISIT TO THE LOCUS IN QUO: IMPORTANCE AND PURPOSE OF VISITING THE LOCUS IN QUO

“It has been settled by a long line of decided cases that when a conflict occurs on the evidence of both sides as to the existence or non-existence of a state of fact relating to a physical object, and such a conflict can be resolved by visualizing the object, material thing, scene of the incident or property in litigation, it is desirable for the court to apply its visual senses in aid of its sense of hearing. It has indeed been acknowledged by high authority that this form of evidence, often referred to as real evidence, is the most satisfactory form of proof. It is certainly more reliable that the vagaries of “I believe” of an oral testimony. Such is the intendment of section 76 (c) and proviso (ii) of the Evidence Act which have also set out all the necessary safeguards. Once those safeguards contained in the second proviso to that section have been observed and it is clear that either or both of the parties requested or consented to the inspection, do not see how any of the parties can complain afterwards.” PER NNAEMEKA AGU , J.S.C.

EVIDENCE – ESTOPPEL PER REM JUDICATAM: WHICH JUDGMENT WILL CONSTITUTE ESTOPPEL PER REM JUDICATAM WHERE THERE ARE CONFLICTING JUDGMENTS OF THE COURT

“In answer to one of the issues for determination in this appeal, it also follows that the question of which of the two lines of cases was later in point of time, those relating to Suit No. 108/61 which terminated in the High Court as Appeal No. P/9./1964 of 13th November, 1964, must be regarded as being later in point of time. From the authority of decided cases, it is this last line of decisions that will constitute an estoppel per rem judicatam between the parties: see Makanjuola v. Khalil (1958) W.N.L.R. (Pt.1) 82 at 84; (1958)SCNLR 193 also Seriki v. Solaru (1965) N.M.L.R. 1,.2.”PER NNAEMEKA AGU , J.S.C.

JUDGMENT AND ORDER – ORDER OF RETRIAL: INSTANCES WHERE AN ORDER FOR RETAIL WILL NOT BE MADE

“A retrial is not ordered as a matter of favour or for the convenience of a party but primarily ordered to avoid a miscarriage of justice. On the evidence before the court of trial, there is nothing on record to justify a recourse to the order being sought by the appellant. The issues before the trial court were clear and the learned trial judge in a painstaking manner dealt with those issues. George v. George (1964) 1 All NLR 136; Total Oil Nigeria Ltd. v. Nwako (1978) 5 SC 1; Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566; Adeyemo v. Arokopo (1988) 2 NWLR (Pt.79) 703.”PER OLATAWURA, JSC.

JUSTICES:

MUHAMMADU LAWAL UWAIS

PHILLIP NNAEMEKA-AGU

OLAJIDE OLATAWURA

EPHRAIM OMOROSE IBUKUN AKPATA

BOLARINWA OYEGOKE BABALAKIN

BETWEEN

APPELLANTS

OPUFAA SMITHERS BRIGGS

AND

RESPONDENTS

ABIGAIL EVERETT WILLIAM

O. BABALAKIN, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Enugu Division dated the 22nd day of July, 1986 dismissing the defendant/appellant’s appeal against the judgment of Port Harcourt High Court delivered on 12th of December, 1974.

The facts and background of the case are that the Respondent as Plaintiff in the Port Harcourt High Court took action against the appellant as defendant for the following reliefs:
“(i) 3500 damages for trespass committed by the Defendant on the Plaintiff’s land which was the subject matter in the Kalabari Native Court Civil Suit No. 108/1961, Degema Magistrate’s Court Appeal Suit No. D/7, A/61 and in the Port Harcourt High Court Appeal Suit No. P/9.N1964.
(ii) A perpetual injunction restraining the Defendant, his agents and or servants from committing any further trespass on the said land.”
In the Port Harcourt High Court pleadings were ordered, filed and exchanged. After reviewing the evidence led by the two parties the learned trial Judge on 12th December, 1974 gave judgment in favour, of the plaintiff/respondent for N400.00 as damages for trespass and ordered that the defendant/appellant be restrained from entering the land of the plaintiff/respondent clearly demarcated on their plan Exh. K. from henceforth.
Dissatisfied with this judgment the defendant/appellant appealed to the Court of Appeal, Enugu Division where on 22nd day of July, 1986 his appeal was dismissed and the judgment of Port Harcourt High Court was confirmed.
Still dissatisfied with this judgment the defendant/appellant has further appealed to this court.
In this court briefs of arguments were filed and exchanged. In the brief of argument filed on behalf of the defendant/appellant the following issues for determination were formulated:
“(i) Is the Court of Appeal right to hold that the statement of a Judge in a “solemn” judgment must be taken as correct of what happened and therefore final, in relation to a visit to the locus in quo, even where there was no evidence from the Respondent on the observations of the Judge
(ii) Is the Court of Appeal right to hold that because the trial Court saw and heard the witnesses and visited the locus in quo, the Plan Exhibit K correctly portrays the Plaintiff’s case and that Exhibit L distorts the picture
(iii) Is the Court of Appeal right to hold that judgment in Native Court Suit 108/61 Exhibit A delivered on 10/6/61 was later in time to Exhibit G delivered on 8/11/63.”
The Respondent formulated the following issues for determination in the Respondent’s Brief:-
“1. Whether the procedure adopted by the trial court during and after the visit to the locus in quo amounted to a departure from established procedure and occasioned a miscarriage of justice.
2. Whether the appellants were not bound by the previous decisions over the area now in dispute.”
Both parties adopted their respective briefs of argument at the hearing of this appeal before us.
The submission in the defendant/appellant’s brief are that the evidence at the locus in quo is testimonial evidence and that in visiting the locus in quo, the trial court must observe the conditions stipulated in Section 76 of the Evidence Act, particularly proviso (ii) to section (a) which reads:
“Oral evidence must, in all cases whatever be direct –
(a) If it refers to a fact which could be seen. it must be the evidence of a witness who says he saw that fact;
PROVIDED that
…………………………………………………………….
(ii) if oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection, or may inspect or may order or permit a jury to inspect any movable or immovable property, the inspection of which may be material to the proper determination of the question in dispute. In the case of such inspection being ordered or permitted, the court shall either be adjourned to the place where the subject-matter of the said inspection may be and the proceedings shall continue at that place until the court further adjourns back to its original place of sitting or to some other place of sitting, or the court shall attend and make an inspection of the subject-matter only, evidence, if any; of what transpired there being given in court afterwards. In either case the accused, if any, shall be present.”
(Italics mine by way of emphasis).
That by the provisions of the above section of the Evidence Act it means that any material statement made in the course of the visit to the locus in quo must be recorded and the opposing party given the opportunity of testing that statement if need be by cross-examination. The case of Awoyegbe & anor. v. Chief Ogbeide (1988) NWLR (Pt.73) 695 at 709 was cited in support of this proposition of the law.
That the learned trial Judge must not refer in his judgment to certain facts of which there is no evidence on record, but to facts which he observed on the occasion of his visit and drew certain conclusions therefrom. He relies on the case of Ejidike & Ors. v. Obiora (1951) 13 WACA 270, as authority for this proposition.
That by the visit of the learned trial Judge to the locus in quo and by his findings there, in the circumstances of this case he substituted the result of his own observation for the sworn testimony of no witness and he made use of his finding in arriving at his conclusion when he said “I am satisfied therefore that exhibit K correctly portrays the Plaintiff’s case and that exhibit L tendered by the Defendant distorts the picture”. It was further contended in the said Appellant’s brief that cases of Siesmograph Services Ltd. v. Aporuovo (1974) 6 SC 119 and Nwizuk v. Eneyok (1953) 14 WACA 354 relied upon in upholding the judgment of the learned trial Judge by the Court of Appeal did not say that the Court will regard its observations at the locus in quo as real evidence to which no evidence was given and act on it to the prejudice of a party nor will Nwizuk v. Eneyok case apply where the statement made by the trial court in his “solemn” judgment was not a correct account of what occurred because no witness had given evidence. That if the observations of the learned trial Judge were expunged from the record there will be no finding of acts of trespass by the trial Court as confirmed by the Court of Appeal and to that extent the observations of the learned trial Judge have occasioned a miscarriage of justice. That in the circumstances this Court should set aside the judgment of the trial court and order a retrial of the case.
That the facts of this case come within the special circumstances where this, Court will disturb the concurrent findings of the two lower courts because such concurrent findings of facts here occasioned a miscarriage of justice and a serious violation of some principles of law or procedure which shows that the said findings are erroneous.
The brief further contended that the area alleged trespassed upon was not conclusively proved.
After referring to the evidence of P.W.1 and P.W.3 and P.W4 on the printed record of proceedings as well as plans exhibits K and L tendered in the proceedings the brief concluded that the area trespassed upon was not proved.
Finally it was contended in the brief that where there are conflict in consistent judgments of Courts with equal jurisdiction over the subject matter in dispute the rule is that the last decision operates as a bar – see Makanjuola v. Khalil (1957/58) WRNLR 82 at 84; (1958) SCNLR 193 Seriki v. Solaru (1965) NMLR 1 at 2 and Cardoso v. Daniel (1986) 2 NWLR (Pt.20) 1 at 38, 47.
That on the facts of this case it was erroneous for both the trial Court and the Court of Appeal to hold that the judgment of the High Court on 13/11/64 on appeal from native Court Suit 108/61 was later in time than the judgment in appeal No. D/5A/1960 exhibit dated 8/11/63 which limited the area of land granted to the Respondent to 18ft by 16ft 3 inches because the High Court judgment of 13/11/64 confirms the original judgment in Suit 108/61 delivered on 10/6/61.
The brief concluded that we should allow the appeal. In the brief of argument filed on behalf of the plaintiff/respondent the contentions of learned counsel for the plaintiff/respondent are that the position in this case was that after the addresses of counsel, the learned trial Judge adjourned for judgment to 12th November 1974. When the trial resumed on that day the judgment was not delivered and the judge made the following notes at page 33 lines 19-25 of the printed record of proceedings:
“I propose to visit the locus in quo for the purpose of locating the building of the defendant complained about on the land trespassed: also to know what is the area claimed by the plaintiff. It will be necessary for surveyor of both parties to be present. The inspection is to take place on the 30th November, 1974 at 10 a.m.”
At page 39 lines 12-15 the learned trial Judge recorded parties present as follows:
“Both parties and their Counsel were present together with the Surveyor of the plaintiff. The defendant’s Surveyor did not attend in accordance with my orders”.”
The learned trial Judge then gave reasons for his decision to visit the locus in quo as being (a) the denial of the defendant that he had not built on the area of land claimed by the plaintiff and (b) because of conflict in the plan filed by the parties.
At the end of the visit, the learned trial Judge stated his findings at P.39 lines 16 to 31 thus:
“I found that the defendant had erected a concrete building measuring 36ft by 8ft within the portion of land verged pink on Exhibit “K” and this building extends further to an area of land supposed to belong to Karibo Briggs who was not at the site during the inspection. Karibo’s land on which defendant’s building is erected extends 27ft 8 inches beyond the area of the plaintiff’s land. From the zinc building of the plaintiff to the end of the area verged pink west ward is 55ft”. The defendant also occupied thatch house of 3 rooms measuring approximately 17ft in length which is contiguous with the zinc building of the late Everett Briggs occupied by the plaintiff. There is an open space between the thatch building of the defendant measuring 18ft by 20ft and the building of Israel Bob-Manuel which is outside the area in dispute””…
The learned trial Judge went to clear conflict in the evidence led and plans tendered by the parties which is the right thing for him to do under the circumstances. He relied on the case of Seismograph Services (Nig.) Ltd. v. Esiso Akperuovo (1974) 6 SC 119 at 128.
That so long as the Appellant did not contend that the Judge’s observations were contrary to what the parties who were present with their solicitors observed at the locus in quo, there was no basis for the defendant/appellant’s complaint. That what the learned trial Judge did is covered by decisions in the cases Ejidike & Ors. v. Obiora (1951) 13 WACA 278 and Nwizuk & Ors. v. Eneyok & Ors., (1953) 14 WACA 254. That there was no basis for sending the case for retrial in the High Court as submitted by the defendant/Appellant in his brief of argument.
That by the state of pleadings and evidence led in this case it was shown that the judgment in Suit No. 108/61 was binding on the defendant/Appellant and that this judgment was later in time because its proceedings terminated in exhibit on 26th November, 1964. That the area trespassed upon by the defendant/Appellant was within the area of land measuring 70ft by 24ft granted to the plaintiff/Respondent by the said judgment which judgment is binding on the defendant/Appellant. That the whole proceedings taken as a whole shows that the established procedure adopted in this case has not resulted in a miscarriage of justice and this Court should not disturb the concurrent findings of fact by the two lower courts.
He urged us to dismiss the appeal.
The visit to the locus in quo by the trial court came about under the following circumstances. After the addresses of counsel the learned trial Judge adjourned for judgment to 12th November, 1974. When the trial resumed on that day the judgment was not delivered and the Judge made the following notes at page 33 lines 19 to 25 of the printed record of proceedings:
“I propose to visit the locus in quo for the purpose of locating the building of the defendant complained about on the land trespassed; also to know what is the area claimed by the plaintiff. It will be necessary for surveyor of both parties to be present. The inspection is to take place on the 30th November, 1974 at 10a.m.”
At page 39 line 12 to 15 of the record the learned trial Judge recorded as follows:
“Both parties and their Counsel were present together with the Surveyor of the plaintiff. The defendant’s Surveyor did not attend in accordance with my orders”.
Before the learned trial Judge stated his findings during the visit to the locus in quo, he restated his reasons for deciding to visit the locus in quo at page 38 lines 30 to 31 and page 39 lines I to 12 as follows:
“Further, following the denial of the defendant that he had not built on the area of land claimed by the plaintiff and the conflict in the plans of the parties Exhibits “K” and “L” and the submission of Mr. Whyte that the Plaintiff’s Plan Exhibit “K” does not clearly show that the trespass complained of is within the area marked pink on Exhibit “K”. I was obliged at the request of Mr. Whyte to travel to Abonema which is the locus in quo on the 30th November, 1974. I made it clear that the purpose of visit to the locus in quo was to locate the building of defendant if any within the area of the land claimed by the Plaintiff. Also to know the exact area claimed by the Plaintiff having regard to the judgment of the Native Court in Suit No. 108/61″.
At the end of the visit the learned trial Judge at page 39 lines 16 to 31 of the printed record of proceedings stated his findings, as follows:
“I found that the defendant had erected a concrete building measuring 36ft by 8ft within the portion of land verged pink on Exhibit “K” and this building extends further to an area of land supposed to belong to Karibo Briggs who was not at the site during the inspection. Karibo’s land on which defendant’s building is erected extends 27ft 8 inches beyond the area of the plaintiffs land. From the zinc building of the plaintiff to the end of the area verged pink west ward is 55ft. The defendant also occupied a thatch house of 3 rooms measuring approximately 17ft in length which is contiguous with the zinc building of the late Everett Briggs occupied by the plaintiff. There is an open space between the thatch building of the defendant measuring 18ft by 20ft and the building of Israel Bob Manuel which is outside the area in dispute”.
The two main purposes of this visit were to find out the area of land for which the plaintiff/respondent’s late husband got judgment in Suit No. 108/61. I pause here to say that Exh. A tendered in the proceedings conclusively shows the area for which judgment was given in the said suit No. 108/61 from the following extracts if the judgment. The said Exhibit is at page 42 to 57 of the printed record of proceedings. The claim read as follows:
“Claim: The Plaintiff’s Claim against the defendant is for a declaration of title to all that piece and parcel of land at Ikata Briggs Gate known as Oruwaribeyemieari-Kiri being the property of Plaintiff’s grand mother.
This piece of land is being claimed by the defendant as belonging to his father Erise.
The area of Oruwaribeyemieari-Kiri measures 70ft by 24ft out of this area the Plaintiff specifically claimed and was granted a declaration over an area measuring 18ft by 16ft 3 ins, in Suit No. 254/59.
The plaintiff therefore claims a declaration of title on whole area of Oruwaribeyemieari Kiri. Value of land estimated at 310.”
The most important evidence of the plaintiff in respect of the claim is found at page 43 lines 5 to 8 of the printed record of proceedings as follows:
“In my previous action in Suit No. 254/59 I did not sue for the whole land in dispute. It was a mistake on my part. I am now claiming the whole piece of land:
Judgment was given for this claim at page 56 lines 26 to the end to page 57 lines 1 and 2 as follows:
“Judgment: The plaintiff is granted the title of the land in dispute as claimed by him; measuring 70ft by 24ft. The defendant to pay 35 land inspection fee in one month. The defendant to pay 34 costs to plaintiff at once. The defendant to pay 33.3/97 cost of action at once. Exhibit returned to the owner.”
The only thing that could be said in favour of the visit to the locus in quo is that the learned trial Judge was able to see on the ground what he heard in evidence and saw on documents tendered.
On the second purpose of the visit to the locus in quo there was evidence on record that the defendant/appellant trespassed on the plaintiff/respondent’s land. What the visit enabled the learned trial Judge to do was to see the extent of the trespass physically on the ground. In sum, what the learned trial Judge did by his visit to the locus in quo was to enable him to clear doubt that he felt arose in evidence from the totality of the evidence about those two issues before him: In my view he has taken the right step. In similar circumstances in the case of Seismograph Services (Nig) Ltd v. Esiso Akporuovo (1974) 6 SC. 119 at page 128 this court stated that certain issues can only be resolved by a visit to the scene. Sowemirno J.S.C. (as he then was) stated at page 128 thus:
“At this stage, the learned trial Judge was faced with two conflicting evidence as to whether or not the buildings were standing or not.
The learned trial Judge could have resolved this conflict by a visit to the site at Umolo Village.”
It must be noted that the defendant/appellant is not disputing the contents of the observations of the learned trial Judge at the locus in quo witnessed by all the parties. All he is complaining about is that the learned trial judge recorded in the judgment certain facts of which there was no evidence judgment certain facts of which there was no evidence on record and that the procedure stipulated in Section 76 of the Evidence Act about the visit to locus in quo particularly proviso (ii) to Section(a) quoted above has not been complied with.
In the first place all the facts recorded in the judgment are based on evidence adduced in this case, In the second place no evidence taken at the locus in quo that calls for the court re-convening for cross examination of the opposing party as clearly no evidence was taken at all at the locus in quo. All evidence are already on record. What the learned trial judge did was to confirm what is already on record with actual physical inspection in keeping with the old adage that seeing is believing. He substituted the eyes for the ear.
The complaint that the learned trial Judge did not record what he observed at the locus in quo before using it in the judgment is not sustainable in view of the decision in the case of Chief Nwizuk v. Chief Eneyok (1953) 14 WACA 254. In that case the plaintiff claimed a declaration of title, damages for trespass and an injunction in respect of 18 islands in the Supreme Court of Port Harcourt (as it was then known).
The learned trial Judge after hearing evidence of both parties before delivering judgment embarked upon an inspection of the area in dispute after the conclusion of counsel’s address. When the parties realised that the court, at that stage, was about to substitute the eye for the car in the reception of the 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. At the end of the visit to the locus in quo the learned trial judge concluded as follows:
“The inspection has shown me forcibly how much all the evidence of litigants in land cases can he relied upon by the court. Both sides in this case have lied to me, the Ogoni side (plaintiffs) far more horribly that the Adonis (defendants)”.
The plaintiffs claims were dismissed. The plaintiffs appealed to the West African Court of Appeal and one of the grounds of appeal was that the learned judge erred in law in taking into consideration statements made during (he inspection of the land in dispute without recalling those who made such statements for further examination. It was submitted that after the inspection evidence should have been taken on oath touching the above matter and that in the absence of such evidence of oath the learned judge permitted his mind to be charged with matters not properly proved and to the disadvantage of the appellants. The West African Court of Appeal held that these contentions disregarded the fact that the court did not cease to be a court because it was on an inspection away from a court house. The statements were as much oral admission 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 observations of Section 179 of the Evidence Ordinance which provides that oral evidence should, with specified exceptions, be taken on oath. It was 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 trial judge was satisfied that the statements were correctly conveyed to him. The court pointed out that in making these two statements learned counsel for the appellants explained that he did not impugn the learned judge’s narrative on what took place. That indeed he could not do so as no affidavit in contradiction of the incidents described has been filed but that he pointed out that the practice of the court is to record the note of an inspection at the first opportunity. The court then held that “while the usual practice may be as stated it is not necessary in every stage nor is the absence of such 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.”
It cannot therefore be said that by his visit to the locus in quo the learned trial judge substituted his own observation for the testimony of witnesses on the facts or this case. What can be said is that the visit put to rest matters about which conflicting evidence were led in this case beyond the realm of peradventure.
Finally from the above analysis I hold that the visit to the locus in quo by the learned trial judge has not engendered a miscarriage of justice in this case. The next issue for determination proffered in the defendant/appellant’s brief is an interesting one to wit:
“Is the Court of Appeal right to hold that because the trial court saw and heard the witnesses and visited the locus in quo the Plan Exhibit K correctly portrays the Plaintiff’s case and that Exhibit L distorts the picture”
The simple answer is that since one of the reasons of the visit to the locus in quo by the learned trial judge was to clear doubt about evidence of the trespass to the respondent’s lands which the Plan Exh. K produced by the plaintiff/respondent and Exhibit L the Plan produced by the defendant/appellant purported to show, and the learned trial judge on visit to the locus in quo found that the Exhibit K represented the true position and that Exhibit L did not and the Court of Appeal found that this finding of fact was properly and rightly made, the Court of Appeal was right to hold as it did. An examination of these exhibits and evidence led in support confirms the trial court’s and the Court of Appeal’s findings on them.
The last issue for determination raised in the defendant/appellant’s brief is put thus:
“Is the Court of Appeal right to hold that judgment in Native Court Suit 108/61 Exhibit A delivered on 10/6/6 I was later in time to Exhibit G delivered on 8/11/63.”
The position about the two Exhibits as it appears on the printed record of proceedings was ably analysed by the learned trial judge at page 35 line 19 to page 38 line 30. This was put in an abridged form by the Court of Appeal at page 243 line 20 to page 244 line 9 thus:
“Question number two relates to what the appellant referred to as inconsistent judgments of the Native Court in respect to the area of land claimed. It was contended in appellant’s brief that where there are conflicting judgments over the same subject matter in dispute the rule is that the later judgment operates as bar. It was submitted that judgment in Suit No. 018/60 Exhibit A was delivered on 8/11/63 limiting the right of respondent to 18ft x 16ft 3 ins, and that in the circumstance the later judgment in law prevails. It was further submitted that respondent’s claim for area of 70ft x 2ft was yet to be decided and that the conclusion of the learned judge was wrong when he said:
“With respect it is quite clear from his set out of the previous record of proceedings that the judgment of the Native Court awarding the plaintiff a larger portion of land in dispute was subsequent to the decision of the Magistrate Udo Aboh and cannot in law restrict the claim to 15ft x 16ft.”
But thanks to the illuminating arid masterly exposition of the sequence of the Native Court Suit in respondent’s brief showing that the final decision in Suit No. 108/61 was in fact later in time than the decision in exhibit G by the Magistrate on 18/11/63. This is so because after the Native Court had awarded a larger area in Suit.108/61 to the respondent, the appellant embarked upon series of attempts to set aside this judgment but failed. See exhibit B and C. The final attempt was made in the High Court before Butuel J. who dismissed the appeal on 13/11/64 leaving unimpaired the award of 70ft x 24ft by the Native Court. so that the decision of 8/11/63 which limited the award to 18ft x 16ft 3 ins was not later in time than the decision on 13/11/64 which ended the journey of Suit 108/61. This decision is binding on the parties. The answer to question two therefore is that the High Court Judgment on 13/11/64 on appeal in Native Court Suit 108/61 is later in time.”
I agree with this conclusion by the Court of Appeal having read the trial judge’s painstaking analysis. The answer to this issue is that the Court of Appeal was right to hold that judgment in Native Court Suit 108/61 Exhibit A delivered on 10/6/61 is later in time than Exhibit G. It must be borne in mind that the purpose of instituting suit 108/61 Exhibit A was for the plaintiff/respondent’s late husband to claim the whole piece or parcel of land covering 70ft by 24ft instead of the area of 15ft by 16ft 3 ins. previously awarded to him in the litigation contained in Exh. G as I have shown when discussing the first issue for determination in this appeal.
On the whole this appeal fails and 1 hereby dismiss same with N1,000.00 costs to the plaintiff/respondent. The judgment of the lower court delivered on the 22nd day of July 19S6 is hereby affirmed.

M. L. UWAIS, J.S.C.: I have had the advantage of reading in draft the judgment read by my learned brother Babalakin, J.S.C. I agree that the appeal has no merit and that it should be dismissed. There is no doubt that the visit to the locus in quo was conducted in order to clear the conflict between the evidence adduced by the parties. The fact that no evidence was taken at the scene of the inspection or back in Court before the learned trial judge made the observation in his judgment about the visit, did not derogate from the provisions of section 76 of the Evidence Act. Cap. 62. as proviso No. (ii) thereof states in part as follows:
“……………….. (The Court) shall attend and make an inspection of the subject-matter only, evidence, if any, of what transpired there being given in court afterwards ……………………..” Unless there is any evidence to be given, the Court needs not take evidence either at the scene or after the visit. The evidence adduced by the parties before the visit was conflicting, so also plans exhibit K and exhibit L which the plaintiff (respondent) and the defendant (appellant) tendered in evidence before the visit to locus in quo was undertaken by the learned trial judge. Since the conflicting pieces of evidence were already before the trial judge prior to the visit. it was perfectly in order for him to undertake the visit to see things for himself. It was the responsibility of the parties to call any evidence on the visit either at the scene or back in court. This they did not do. In the circumstances of this case and in the absence of any request by the parties to adduce evidence on the visit to the locus in quo the learned trial judge was justified in coming to the conclusion that plan exhibit K represented the true position of the plaintiffs case. The Court of Appeal was, therefore, right in agreeing with the trial court.
For these and the fuller reasons contained in the judgment of my learned brother Babalakin, J.S.C. I too will confirm the decision of the Court of Appeal and dismiss this appeal with N1,000.00 costs to the respondent.

P. NNAEMEKA-AGU, J.S.C.: This is a further appeal by the defendant against the judgment of the Court of Appeal, Enugu Division, which had dismissed her appeal from the judgment of a Port Harcourt High Court presided over by Allagoa, J. (as he then was). The claim in the High Court was for trespass and injunction over a piece or parcel of land called “Oruwari-Beyemieari Kiri” situate in Abonnema, Rivers State, the subject matter of Kalabari Native Court Suit No. 108/1961 and appeals therefrom.
At the trial, the parties had many common grounds. Both parties agreed that the land in dispute was originally that of Everett W. Briggs. Plaintiff traced her title to him and defendant was Nda Smithers Briggs through whom the present appellant claims. Both parties agreed that there were two lines of previous Native Court suits by their predecessors-in-title over land in the area. But while the plaintiff maintained that it covered an area of land shown in his plan (Exh. K) and measuring 70 feet by 24 feet, the subject of Native Court suit No. 108/61 between plaintiff’s father and defendant’s father, the defendant maintained that the area in dispute was outside the land awarded to the plaintiff in the previous cases. The defendant, relying on Native Court suit No. 254/59 and the decision of the Magistrates Court in Appeal No. D/5A/l960 of 8/11/63, maintained that the area belonging to the plaintiff under those previous suits was limited to an area measuring 18 feet by 16 feet 3 inches.
The learned trial Judge settled the question of which of the parties succeeded to Everett W. Brigg’s properties, according to custom in favour of the plaintiff. He found that the plaintiff was the wife of Everett Briggs and succeeded to his estate and that the defendant did not derive title from him. These are not issues in this appeal. Also, after listening to the evidence and addresses of counsel and visiting the locus in quo, he accepted plaintiff’s case mainly on the interpretation and application of the previous native court decisions on the land. He came to the conclusion that the plaintiff was entitled to the whole area of land of Everett William Briggs; that it measured 80 feet by 24 feet; and that the defendant had erected a house of three rooms over an area measuring approximately 36 feet by 8 feet within the area belonging to the plaintiff in accordance with the previous judgments. He, therefore, entered judgment against the defendant, awarded against him the sum of N400.00 as damages for trespass, and made an order of injunction against him.
Defendant’s appeal to the Court of Appeal was dismissed (coram; Nasir, P., Aseme and Ogundere JJ.C.A.).
The defendant has appealed further to this Court. The Learned Senior Advocate for the defendant/appellant, Mr. Akpamgbo, has formulated three issues for determination as follows: “(i) Is the Court of Appeal right to hold that the statement of a Judge in a “solemn” judgment must be taken as correct of what happened and therefore final. In relation to a visit the locus in quo, even where there was no evidence from the Respondent on the observations of the Judge
(ii) Is the Court of Appeal right to hold that because the trial Court saw and heard the witnesses and visited the locus in quo, the Plan Exhibit K correctly portrays the Plaintiff’s case and that Exhibit L distorts the picture
(iii) Is the Court of Appeal right to hold that judgment in Native Court Suit 108/61 Exhibit A delivered on 10/6/61 was later in time to Exhibit G delivered on 8/11/63.”
The learned Senior Advocate for the plaintiff/respondent, Chief Mogboh formulated two. But they are not materially different from those formulated for the appellant. My learned brother, Babalakin, J.S.C. has fully dealt with those issues. I only need to add a few short comments of my own.
On the previous Native Court decisions, it can not be doubted that in suit No. 254/59, Everett William Briggs claimed against Nda Smithers Briggs an area of land more particularly shown and delineated on the plaintiffs plan with its abuttals and dimensions as being only 18 feet by 16 feet 3 inches. This suit which was commenced in Kalabari Native Court on the 29th of October, 1959, terminated in that Court on 2nd December, 1959 after hearing and inspection of the locus in quo. It ended in favour of the plaintiff. Reviews by the A.D.O., Mr. Churu, and by the Provincial Secretary, Mr. Ogolo, each confirmed the Native Court decision.
In 1960, the present respondent’s husband in suit No. 1/1960 instituted an action in the Native Court claiming an area equivalent to the area in dispute in this case i.e. 70 feet by 24 feet. He had judgment in the Native Court. In an appeal to the Magistrate Court, the learned Magistrate, Udo-Aboh Esq., held that the parties were bound by the decision in suit No. 259159, and, so, the plaintiff in that suit was entitled to an area of 18 feet by 16 feet 3 inches. He, therefore, amended the area awarded to the plaintiff in suit No. 1/60 to reflect the smaller area which he had won in the previous suit. This was on the 8th of November, 1963.
If suit No. 259159 were the only case between the parties with respect to the land in dispute, the learned Magistrate would have been right. But then, as early as the 23rd of May, 1961, Everett William Briggs had instituted another action, suit No. 108/61, against the same Nda Smithers Briggs claiming the whole of the area measuring 70 feet by 24 feet. His claim ran as follows:
“Claim: The Plaintiff’s Claim against the defendant is for a declaration of title to all that piece and parcel of land at Ikata Briggs Gate known as Oruwaribeye-mieari-Kiri being the property of Plaintiff’s grand mother.
The piece of land is being claimed by the defendant as belonging to his father Erise.
The area of Oruwaribeye-micari-Kiri measures 70ft by 24ft out of this area the Plaintiff specifically claimed and was granted a declaration over an area measuring 18ft by 16ft 3 ins, in Suit No. 254/59.
The Plaintiff therefore claims a declaration of title on whole area of Oruwaribeyemieari Kiri value of land estimated at 310.” Explaining the matter further in his evidence he stated:
“In my previous action in Suit No. 259/591 did not sue for the whole land in dispute. I am now claiming the whole piece of land.”
The court was satisfied with his explanation and on 7/6/61 entered judgment for him for the bigger area of land. An appeal to the Magistrate’s Court was struck out on 18/10/63. The motion to relist the appeal was refused by the Magistrate on 23/1/64 and by the High Court, Bethuel, P.J., on the 13th of November, 1964. It follows from the facts I have just stated that at the time the learned Magistrate on the 8th of November, 1960, gave his judgment restricting Mr. Everett W. Briggs to an area measuring 18 feet by 16 feet 3 inches, there was already a judgment in his favour in suit No. 108/61 declaring his title to the larger area measuring 70 feet by 24 feet. In answer to one of the issues for determination in this appeal, it also follows that the question of which of the two lines of cases was later in point of time, those relating to suit No. 108/61 which terminated in the High Court as Appeal No. P/9./1964 of 13th November, 1964, must be regarded as being laterin point of time. From the authority of decided cases, it is this last line of decisions that will constitute an estoppel per rem judicatam between the parties: see Makanjuola v. Khalil (1958) W.N.L.R. (Pt.1) 82 at 84; (1958) SCNLR 193 also Seriki v, Solaru (1965) N.M.L.R. l, .2. As suit 108/61 and appeal No. P/9.A/1964 confirmed the respondent’s entitlement to the whole area of 70 feet by 24 feet, which is again the subject of this suit, there can be no question of the respondent’s entitlement to the whole of that area.
My learned brother Babalilkin, J.S.C., has dealt fully with the other issue in this appeal, to wit: the learned trial Judge’s visit to the locus in quo before resolving the conflict in evidence as to whether any part of the land built upon by the appellant abutted into the land awarded to Mr. Everett William Briggs in the previous suit (108/61). I agree with his views thereon. It has been settled by a long line of decided cases that when a conflict occurs on the evidence of both sides as to the existence or non-existence of a state of fact relating to a physical object, and such a conflict can be resolved by visualizing the object, material thing, scene of the incident or property in litigation, it is desirable for the court to apply its visual senses in aid of its sense of hearing. It has indeed been acknowledged by high authority that this form of evidence, often referred to as real evidence, is the most satisfactory form of proof. It is certainly more reliable that the vagaries of “J believe” of an oral testimony. Such is the intendment of section 76 (c) and proviso (ii) of the Evidence Act which have also set out all the necessary safeguards. Once those safeguards contained in the second proviso to that section have been observed and it is clear that either or both of the parties requested or consented to the inspection, do not see how any of the parties can complain afterwards.
For the above reasons and the fuller reasons contained in the lead judgment of my learned brother, Babalakin, J.S.C., the appeal fails and is hereby dismissed with N1,000.00 costs against the appellant.

O. OLATAWURA, J.S.C.: I had a preview of the judgment of my learned brother Babalakin, J.S.C., agree with the conclusion reached. I will also dismiss the appeal. The facts and issues formulated by both parties have already been set out in the judgment of Babalakin, J.S.C. I need not go over them again.
It appears to me that this appeal is based on two issues: the visit to the locus in quo and the effect of the earlier judgments in respect of the same parcel of land which was tried in the Port Harcourt Division of the Rivers State High Court of Justice. The purpose of a visit to the locus in quo is not to recite the evidence already led but to clear doubt which might have arisen about the conflicting evidence or apparent misrepresentation of fact by either side. Where there is conflicting evidence in relation to the objects, boundaries, natural or man-made in respect of a land in dispute or in relation to where an accident had occurred e.g. motor traffic offences or any other criminal offence where the issue of relative positions of witnesses are concerned, the court ought to resolve the conflict by a visit to the locus. What looks convincing or inconclusive on a plan may affect the justice; of the case unless the court, the parties and their counsel and witnesses go to the site. What is frowned upon when such a visit takes place is for the judge making himself a witness. The judge’s observation on such visits will definitely be accorded respect as to the true position of what he saw on the ground. This however should not be confused with laid down procedure on visit to the locus in quo. Invariably the purpose of the visit is to avoid a miscarriage of justice. The learned trial judge was not in breach of any laid down procedure. Mr. Mogboh S.A.N. referred to this in his brief filed on behalf of the respondent where the learned Senior Advocate said:
“It is obvious from the records that there was conflict in the evidence of the parties as to the area of land for which the Respondent’s husband got judgment in Suit 108/51 and which is now in dispute. There was also conflicting evidence as to the exact location of the Defendant’s house and whether the same encroached on the Plaintiff’s land. These conflicting evidence needed to be resolved. ”
It is abundantly clear from the record why the learned trial judge decided to visit the land in dispute:
“I propose to visit the locus in quo for the purpose of locating the building of the defendant complained about, the land trespassed and also to know the area claimed by the plaintiff.”
It was therefore, in the circumstances of the case presented at the trial, necessary to visit the locus in quo. The accounts given by witnesses confused the issues before the court, and no ingenuity will assist the court to come to a just decision without such a visit to the locus in quo.
Mr. Akpamgbo S.A.N. the learned Counsel for the appellant correctly stated all the principles of law applicable but unfortunately misapplied them to the facts of this case on appeal before us. The learned Senior Advocate made a heavy weather of what the learned trial judge said:
“I am satisfied therefore that the plan Exhibit K correctly portrays the plaintiff’s case and that Exhibit L tendered by the Defendant distorts the picture”
Where two parties to a land dispute tendered different plans in respect of the same piece of land, this in itself shows disagreement on features and possibly the area of land in dispute. The difference is better resolved by, where possible, a visit to the locus in quo and more so where the cross-examination was not of assistance in resolving the conflict. I agree with the conclusions reached by the Court of Appeal. Mr. Akpamgbo has gone too far in his submission where the learned Senior Advocate said:
“Action for declaration of title and in fact an action for trespass and injunction are not won only on admissions. The burden of proof still lies on the Respondent”
This, in my view, completely overlooks the provision of section 75 cap. 112 of the Evidence Act which states:
“No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to he proved otherwise that by such admissions.”
The plaintiff/respondent in paragraph 4 of the Statement of Claim averred that the land in dispute “had been the property of Everett William Briggs who is now dead”. The defendant/appellant by paragraph 2 of the statement of Defence admits that paragraph. As at that stage any further proof was unnecessary. In fact paragraph 5 of the Statement of Defence has laid to rest any doubt that the defendant did not admit not only the location of the land but the exact area in dispute. The defendant averred infers alia:
“….In further reference to that paragraph (i.e. paragraph 6 of the Statement of Claim) the Defendant admits that late Everett W, Briggs brought an action in the Kalabari Native Court in Suit No. 108/61 claiming title to the whole area of “ORUWARIBEYEMIARI KIRI” measuring 70ft by 24ft. The plaintiff had judgment in his favour”
Having found that the observation made by the learned trial judge and confirmed by the lower court has not in any way affected the trial, the submission being made for a retrial is completely misconceived.
A retrial is not ordered as a matter of favour or for the convenience of a party but primarily ordered to avoid a miscarriage of justice. On the evidence before the court of trial, there is nothing on record to justify a recourse to the order being sought by the appellant. The issues before the trial court were clear and the learned trial judge in a painstaking manner dealt with those issues. George v. George (1964) 1 All N.L.R. 136; Total Oil Nigeria Ltd. v. Nwanko (1978) 5 SC.1 Ugo v. Obiekwe (1989) 1 N.W.L.R. (Pt.99) 566; Adeyemo v. Arokopo (1988) 2 N.W.L.R. (Pt.79) 703.
On the issue of the last judgment in the list of judgments delivered, it has been clearly shown from the record that Exhibit C, was the last judgment. There has been no appeal from that judgment.
It is for these reasons and the fuller reasons in the lead judgment of Babalakin, J.S.C, that I will also dismiss the appeal. I abide by the order for costs.

E. O. I. AKPATA, J.S.C: I agree with my learned brother, Babalakin, J.S.C., that on the whole this appeal fails and should therefore be dismissed.
The plaintiff at the trial High Court claimed for damages and perpetual injunction against the defendant in respect of a parcel of land which had been the subject-matter of previous litigations. It was the case of, the plaintiff, the respondent before us, that the land in dispute was the subject of litigation in the Kalabari Native Court in Suit No. 108/61, in the Magistrate’s Court in Suit No. D/7A/61 and in the High Court in Suit No. P/GA/1964 between Everett William Briggs (deceased) and Nda Smithers Briggs, and that judgment went against the defendant in the previous litigations. Everett William Briggs was declared owner of the property.
It was however the case of the defendant, now appellant, that the respondent was not lawfully married to late Everett William Briggs or any member of the Everett family and was therefore not entitled to sue. It was also his case that the piece of land in the instant case was not the land or a portion of the land to which the late Everett William Briggs got judgment in the previous litigations.
After counsel had addressed the court on completion of evidence, the learned trial judge reserved judgment for 12th November, 1974. However on the date fixed for judgment the learned trial judge notified the parties thus:
“I propose to visit the locus in quo for the purposes of locating the building of the defendant complained about, the land trespassed and also to know the area claimed by the plaintiff.’ It will be necessary for surveyor of both parties to be present. The inspection will take place on the 30th November, 1974 at 10 a.m.”
A visit to the locus in quo was accordingly carried out. In the judgment the learned trial judge made the point that the visit to the locus in quo showed that the appellant trespassed on the land verged pink and claimed by the respondent in Exhibit K. He was also satisfied that the Magistrate’s Court first awarded to Everett William Briggs an area of land measuring 18ft by 12ft. and in his subsequent claim before the Native Court, he was awarded a larger portion of land inclusive of that awarded by the Magistrate. Judgment was therefore entered for the plaintiff/respondent.
The appeal of the appellant to the Court of Appeal was fruitless. It was dismissed on 22nd July. 1986. His further appeal to this Court is the matter for consideration in this judgment which, as I have already indicated, should be dismissed. The appellant’s main complaint against the judgment of the Court at Appeal and that of the trial judge is in effect that the trial judge had substituted his observation at the locus in quo for oral evidence and had therefore placed himself in the position of a witness and arriving at conclusions based upon his personal observation of which there was no evidence on the record.
It was the contention of learned counsel for the appellant that the evidence of PW.1, PW.3 and PW4, so materially contradicted Exhibit K.’ the plan of the land in dispute, that the respondent had failed to establish the area trespassed on by the defendant. He argued that if the observation of the trial Court relating to the visit to the locus in quo are expunged from the records there would be no finding by the trial judge Of acts of trespass by the defendant.
There is no doubt that rules of procedure and evidence are designed to ensure that substantial justice is arrived at in any given case. Put in another way, the rules are made to ensure that no decision is reached which fails to meet the ends of justice. It is for this reason that proviso (ii) to section 76 of the Evidence Act states:
“The Court may …………………….inspect……………………… immovable property, the inspection of which may he material to the proper determination of the question in controversy. In the case of such inspection being ordered ………………….or permitted, the court shall either be adjourned to the place where the subject matter of the said inspection may be and proceedings shall continue at that place until the court further adjourns back to its original place of sitting…………………….. or the court attend and make an inspection of the subject matter only, evidence, if any, of what transpired there being given in court afterwards.” (Italics mine for emphasis).
In the instant case the learned trial judge considered the inspection of the subject-matter “material to the proper determination of the question in dispute”. It is clear from the provision of proviso (ii) of Section 76 that there are two alternative methods of carrying out an inspection to a locus in quo, namely:
(a) The court shall either be adjourned to the place where the subject matter of the said inspection may be and proceedings shall continue at the place until the court further adjourns back to its original place of sitting; or
(b) The court shall attend and make an inspection of the subject matter only, evidence, if any, of what transpired there being given in court afterwards”.
The learned trial judge followed the second alternative method. He went to the locus in quo and made an inspection of the subject matter only, that is, the landed property in dispute. It was not necessary for the court to reassemble in court and receive evidence, unless something else transpired apart from the inspection that was carried out.
Where, as in this case, there is conflicting evidence as to physical facts upon the record a judge may use his own observation to resolve the conflict. See Olubode v. Salami (1985) 2 NWLR (Pt.7) 282 at Page 295. It is however not 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 as to the existence of the facts he has observed. See Ejidike & Ors. v. Obiora (1951) 13 WACA 270 at Page 274. In the instant case there was evidence from plaintiff’s witnesses, although conflicting, in support of the observation of the learned trial judge. His visit to the locus in quo resolved the conflict. His visit enabled him to properly determine the question in dispute.
Besides, as I have already made plain, rules of procedure and evidence are designed to ensure that justice is arrived at in all cases. However, a decision of a trial judge will not be set aside merely by reason of an incorrect procedure or because of an omission of a step in a number of steps to be taken during a visit to the locus in quo, unless it is established that a miscarriage of justice has been occasioned by the incorrect procedure. See Akeredolu v. Akinremi (1989) 3 NWLR (Pt.108) 164 at Page 174 to 175.
The appeal fails. It is dismissed with costs assessed at N1,000.00 in favour of the respondent.
Appeal dismissed.