MICHAEL SAMPSON ETUKUDO & ANOR v. IMO JAMES UDOAKAGHA (2012)

MICHAEL SAMPSON ETUKUDO & ANOR v. IMO JAMES UDOAKAGHA

(2012)LCN/5816(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 11th day of July, 2012

CA/C/92/2010

RATIO

EVIDENCE: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT

The law is that it is the trial court which had the singular advantage of seeing and hearing the witnesses as well as watching their demeanor that has the primary duty to evaluate the evidence adduced before it and to ascribe probative value thereto, and where this duty has been satisfactorily carried out, the appellate court will have no business in interfering with the findings of the trial court. The appellate court will only interfere where the trial court has made findings that are perverse or have led to miscarriage of justice. See Obodo vs. Ogba (1987) 2 NWLR (Pt. 54) 1; Nnaji Ofor vs. Ukonu (No.1) (1985) 2 NWLR (Pt.9) 686; Mainagge vs. Gwanuma (2004) 7 SC (Pt. II) 80; Ojokolobo vs. Alamu (1998) 9 NWLR (Pt. 565) 226; Balogun vs. Agboola (1974) 10 SC 111, and Kuforiji vs. V.Y.B. (Nig) Ltd. (1981) 6 -7 SC 40. PER ISAIAH OLUFEMI AKEJU, J.C.A.

RELIEF: WHETHER A COURT CAN GRANT A RELIEF NOT SOUGHT

EVIDENCE: PURPOSE OF A VISIT TO LOCUS IN QUO

The whole purpose of a visit to locus in quo is for the court to see the subject matter or clarify minor contradictions and uncertainties that have arisen from the evidence of the parties regarding the physical state of the subject of the action. The visit to the locus is not an avenue or opportunity for any of the parties to repair any damage done to the case in the course of adducing evidence. See Chukwuogor vs. Obuora (1987) 3 NWLR (Pt. 61) 454; Nwizuk vs. Eneyok (1953) WACA 354. PER ISAIAH OLUFEMI AKEJU, J.C.A.

APPEAL: WHAT CONSTITUTES AN APPEAL

It is perhaps pertinent to state here that an appeal does not create a new or a fresh case, it is rather a continuation of the original action commenced, tried and determined at the trial court. It does not augur well for our judicial system for a party to have the liberty to change his position on an issue at different stages of the case, i.e. to take a stand at the trial court and take a different or opposing stand at the appellate court. This is approbating and reprobating which the courts abhor.

The parties were satisfied or agreed with the procedure at the visit to the locus in quo, and it is now too late for the appellants to cry foul at the appeal level. See Popoola Olubode vs. Salami (1985) 4 SC (Pt.1) 41; Akhiwu vs. The Principal Lottery Officer, Mid-Western State (1972) All NLR (pt. 1) 229. PER ISAIAH OLUFEMI AKEJU, J.C.A.

EVIDENCE: WHETHER A VISIT TO THE LOCUS IN QUO IS AT THE DISCRETION OF THE JUDGE

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

1. MICHAEL SAMPSON ETUKUDO
2. ANIEFIOK MICHAEL SAMPSON Appellant(s)

AND

IMO JAMES UDOAKAGHA
(For himself and on behalf of Nung Mkponne Sub family of Ekpene Ahafa Eket) Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State, Eket Division delivered on 10th February, 2010 in Suit No. HEK/100/2000 which was commenced by the respondent and one Unanaubo Mkponne Udoakagha who died before the conclusion of the trial court. By the Writ of summons filed on 30/5/2000, and paragraph 33 of the Statement of Claim filed on 4/5/2001, the plaintiffs had sought the following reliefs against the defendants who are now the appellants:
“1. Declaration that the plaintiffs are the persons entitled to the Statutory Right of Occupancy over the parcel of land called Ekpad Ayih along Grace Bill Road, Ahafa Eket in area specifically known as Atan Ekpene in Ekpene Afaha Eket in Eket Local Government Area.
2. The sum of N500,000.00 (Five Hundred Thousand Naira) being special and general damages for trespass on the land.
3. An order of perpetual injunction restraining the defendants, by themselves, their servants, privies, and agents from further trespass on the said land.”
The defendants (appellants) filed their Statement of defence on 11/7/2001, and at the trial, the surviving plaintiff testified as PW1 and called three other witnesses as PW2, PW3 and PW4. The defendants also defended the suit with the evidence of three witnesses. After taking the evidence (oral and documentary) of the parties and the written addresses by their learned counsel, the learned trial judge, in the judgment of 10/2/2010 granted the reliefs of the plaintiff as follows:
“The case therefore succeeds and I hereby declare that the plaintiffs are entitled to the statutory rights of occupancy over the parcel of land called Ekpad Ayih, being the portion delineated “RED” in the Survey pan No. WIMS/AK33/2000/ID filed by the plaintiff in this case prepared by Etuk William Udofia, Licensed Survey (sic) which land is located along Grace Bill Road, Afaha Eket, Eket Local Government Area. The Defendants shall pay the sum of Three Hundred Thousand Naira (N300,000.00) to the plaintiffs for trespass.”
The defendants (who will hereinafter be called the appellants) were dissatisfied with the judgment of the trial court and filed their Notice of Appeal on 22/2/2010 with three grounds of appeal which they later amended with the leave of this court by addition of one ground. In the Appellant’s Brief of Argument settled by Livinus Udofia Esq. of counsel and filed on 24/12/2010, the following issues were distilled from the four grounds of appeal:
1. Whether the learned trial judge did a proper evaluation of the evidence placed before him?
2. Whether the learned trial judge was right in holding that the failure of the defendants to file a Counter claim or cross action against the plaintiffs renders them unserious in asserting their right over the land?
3. Whether the conduct of the learned trial judge at the visit of the locus was consistent with fair hearing?
The Plaintiff/Respondent’s Brief of Argument was prepared by Akpadiah Etukakpan Esq. of counsel and filed on 26th March, 2012 with the leave of court.
The learned counsel formulated the following issues for determination:
(a) Whether the learned trial judge did a proper evaluation of the evidence placed before him?
(b) Whether the learned trial judge was right in holding that failure of the Defendants to file a Counter Claim or Cross action against the plaintiffs renders them unserious in asserting their right over the land?
(c) Whether the conduct of the learned trial judge at the visit of the locus was consistent with fair hearing?
The briefs of argument were adopted at the hearing of the appeal and the respective learned counsel placed reliance thereon as their arguments. It is noted that the issues formulated by the parties are substantially the same, and the appeal will be determined on the basis of the issues stated in the appellant’s brief.

On issue 1, the appellant contended that the learned trial judge was wrong to have relied on exhibit 2, a report of a panel whose proceedings were inconclusive instead of exhibit 5 the report of another panel that was conclusive.
It was contended further that the respondent did not cross examine the DW1 on this issue of inconclusiveness of exhibit 2, which failure amounted to an admission. The cases of WAEC vs. Oshionebo (2007) All FWLR (pt. 379) 1501; and Ogunyade vs. Oshunkeye (2007) All FWLR (Pt.389) 1179 were cited in support.
The learned counsel further contended that the finding of the trial judge in respect of exhibits 2 and 5, and particularly that exhibit 5 was fraudulently procured was not borne out by the proceedings, citing Oguntayo vs. Adetayo (2009) All FWLR (Pt.495) 1626; Ojo vs. Anibire (2004) All FWLR (pt. 214) 176 to submit that there had been a miscarriage of justice.
The respondent’s counsel had argued all the three issues together, but on page 5 of his brief it was argued that the trial court made findings on exhibit 5 and found that it was fraudulently and desperately procured so as to support the desire by the appellants to annex the plaintiff’s land. The learned counsel further contended that this crucial finding of the trial court on exhibit 5 has not been seriously challenged and the finding stands against the appellants.
Exhibit 2 was tendered by the PW1 as representing the report of the local arbitration panel set up to settle issues concerning the land in dispute between the parties. According to PW1, the panel that produced exhibit 2 was set up on the advice and prompting of the police when he lodged a complaint after the appellants entered unto the land in dispute and there was fight thereon. All the parties concerned attended the proceedings that led to exhibit 2 and the panel gave judgment but while attempting to fix the boundary on the land, the appellants prevented them from doing so thereby causing another fight on the land during which injury was sustained. The assault was reported to police where they were advised to settle at home, but when the panel set up for that purpose attempted to reopen the issues concerning the land, he refused to appear to testify. On the other hand exhibit 5 was produced in evidence by the appellants as the report of the panel that settled the dispute over the land. While exhibit 2 dated 12th February, 1999 gave the land to the respondent, exhibit 5 dated 2nd May, 2000 was in favour of the appellants.
The learned trial judge extensively considered exhibit 2 at pages 146-147 of the record and found that:
“Exhibit 2 was signed by all the members, except one – George Ukot. The Chairman, Chief Asuamah (village head Ekpene Afaha Eket) and the Secretary, Elder Okot Henry also signed.”
The court found exhibit 2 to be quite instructive on the case.
In respect of exhibit 5 however, the learned trial judge found at page 149 of the record that it was fraudulently procured, and gave the reason:
“it carries no evidence by the parties alleged to have stood the trial. The plaintiff had told the court that they objected to the panel doing the case, and so there was no such panel. Exhibit 5 shows that the plaintiff did not sign the purported decision of the panel, which was signed by the alleged members and by the defendants.”
The law is that it is the trial court which had the singular advantage of seeing and hearing the witnesses as well as watching their demeanor that has the primary duty to evaluate the evidence adduced before it and to ascribe probative value thereto, and where this duty has been satisfactorily carried out, the appellate court will have no business in interfering with the findings of the trial court. The appellate court will only interfere where the trial court has made findings that are perverse or have led to miscarriage of justice. See Obodo vs. Ogba (1987) 2 NWLR (Pt. 54) 1; Nnaji Ofor vs. Ukonu (No.1) (1985) 2 NWLR (Pt.9) 686; Mainagge vs. Gwanuma (2004) 7 SC (Pt. II) 80; Ojokolobo vs. Alamu (1998) 9 NWLR (Pt. 565) 226; Balogun vs. Agboola (1974) 10 SC 111, and Kuforiji vs. V.Y.B. (Nig) Ltd. (1981) 6 -7 SC 40.
I hold the view that the findings of the learned trial judge in this appeal especially in respect of exhibits 2 and 5 were the products of his proper evaluation of the credible evidence before the court (oral and documentary). The findings are not perverse. An appellate court will not ordinarily interfere with or disturb findings that are based on credible evidence. See Enang vs. Adu (1981) 11-12 SC 25, Igbi vs. State (2000) 3 NWLR (Pt. 648) 169.
I resolve this issue against the appellants.

Issue number 2 is whether the learned trial judge was right in holding that the failure of the defendants to file a Counter Claim or Cross action against the plaintiff renders them unserious in contesting ownership of the land.
Appellants’ counsel contended that a defendant in possession in a land case does not need to counter claim against the plaintiff who contests the land with him, once the plaintiffs’ case fails, the defendant continues his enjoyment of the land because a land case is fought on the strength of the plaintiff’s case and not on weakness of the defendant’s case; Iroagbara vs. Ufomadu (2009) All FWLR (Pt. 481) 843; Dike vs. Okonkwo (2008) All FWLR (Pt. 404) 1571. It was further contended that in the instant appeal the trial judge was influenced by the extraneous fact of the appellants’ failure to counter-claim which weighed in the mind of his lordship in considering the merit of the plaintiffs’ case and which has occasioned a miscarriage of justice, citing Gbadamosi vs. Dairo (2007) All FWLR (Pt. 357) 812; Director General of SSS Abuja vs. Briggs (2007) All FWLR (Pt. 344) 53.
For the respondent it was contended that this issue has become academic because the issue in the case had been narrowed down to demarcation of boundary between the parties. The learned counsel argued that whether the appellant filed a counter claim or not, the evidence of the respondents is more cogent.
The learned trial judge, in my view has merely restated the position of the law as applicable in an action for declaration of title to land or claim for ownership of land. The law is that in such an action the failure of the plaintiff to establish his ownership of the land in dispute does not translate to a finding that the defendant who does not counter claim has been granted title to the land or ownership thereof. See Adon vs. Ikebudu (2001) FWLR (Pt.72) 1893, Anwoyi vs. Onyekwuluju (2006) All FWLR (pt. 340) 1041.

This position of the law must of course follow from the principle that a court of law not being a charitable institution does not grant to a party a relief which he does not seek. See Awoniyi vs. AMORC (2000) 6 SC (pt.1) 103; Afrotech Technical Services (Nig) Ltd. vs. M.I.A. & Son Ltd (2000) 12 SC (pt. 11) 1; Ekpenyong vs. Nyong (1975) 2 SC 11; Union Beverages vs. Owolabi (1988) 1 NWLR (Pt. 68) 128. I do not find any miscarriage of justice arising from the learned trial judge stating the correct position of the law.
This issue is again resolved against the appellant.
The third issue is whether the conduct of the learned trial judge at the visit to the locus was consistent with fair hearing.
First, appellants’ counsel argued that the parties were taken by surprise when the learned trial judge moved to the locus on the day the defendants concluded their evidence without prior notice.
Secondly there was the complaint as to why the DW3 was mentioned as the only defence witness present to confirm his boundary. If the court was visiting the locus to hear witnesses and no notice was given to the parties then the rule of fair hearing was breached and the proceedings must be set aside; so contended the learned counsel who cited the case of Chime vs. Onyia (2009) All FWLR (Pt.480) 673. It was further contended that the opposing parties were not shown to have been given the opportunity to cross examine the other witnesses at the visit, and so the visit was not in conformity with the general principle; Seismographic Services Ltd. vs. Onakposa (1972) 1 All NLR 343; Seismographic Services Ltd. vs. Ogeni (1976) 4 SC 85.
The respondent contended that the foundation had been laid by the parties prior to the knowledge of the visit, while the visit was merely to clarify some features and other facts, and not to take additional evidence, no miscarriage of justice was occasioned to any party.
The whole purpose of a visit to locus in quo is for the court to see the subject matter or clarify minor contradictions and uncertainties that have arisen from the evidence of the parties regarding the physical state of the subject of the action. The visit to the locus is not an avenue or opportunity for any of the parties to repair any damage done to the case in the course of adducing evidence. See Chukwuogor vs. Obuora (1987) 3 NWLR (Pt. 61) 454; Nwizuk vs. Eneyok (1953) WACA 354.

In this appeal, the report of the visit by the trial court on pages 123-124 of the record of appeal shows that the visit was undertaken on the day evidence was concluded while no evidence was adduced by any witness at the locus. The record of appeal also shows that after the visit the counsel wrote and filed their Written Addresses. The Written Address of Defendants’ counsel is on pages 43- 51. At page 45 paragraph D, the learned counsel for the defendants/appellants wrote as follows:
“D. VISIT TO LOCUS IN QUO
D1- In exercise of the undoubted power of the court under S. 77 (d) (11) of the Evidence Act this Honourable Court, after close of the case for the defence embarked on a visit to the locus in quo with the parties who were in court on that day.
The court randomly asked questions from the parties and some witnesses and sought clarifications on some issues and later returned to court to formally adjourn the matter to a new date (for adoption of counsel’s address which the court had ordered).”
Thus the appellants had no grouse with the visit before the trial court. The above statement of appellants’ counsel shows fairness in the conduct of the visit, and the presence of the parties who were in court on that day.
I think the learned trial judge’s decision to make the visit impromptu should be commended as it is a way of meeting the object in its natural state, removing the possibility of manipulations or adjustments before the day fixed for the visit”
It is perhaps pertinent to state here that an appeal does not create a new or a fresh case, it is rather a continuation of the original action commenced, tried and determined at the trial court. It does not augur well for our judicial system for a party to have the liberty to change his position on an issue at different stages of the case, i.e. to take a stand at the trial court and take a different or opposing stand at the appellate court. This is approbating and reprobating which the courts abhor.
The parties were satisfied or agreed with the procedure at the visit to the locus in quo, and it is now too late for the appellants to cry foul at the appeal level. See Popoola Olubode vs. Salami (1985) 4 SC (Pt.1) 41; Akhiwu vs. The Principal Lottery Officer, Mid-Western State (1972) All NLR (pt. 1) 229.
This issue is clearly an after thought and it is resolved against the appellants.
Having resolved all the issues against the appellants, this appeal has failed and it is accordingly dismissed.
I award N30,000.00 as costs against the appellants.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Isaiah Olufemi Akeiu, JCA.
By law, the dismissal of a party’s claim for a declaration of title to land does not automatically confirm title to the same land in dispute on the Appellant. Therefore, where a party claims title to land and the court dismisses his claim for failing to prove title, a defendant who has not counterclaimed for declaration of title to the same land does not automatically become entitled to the land. Anthony vs. Shodeke (2006) 13 NWLR pt 996 page 34.
This is law and the trial court was right in finding so. For this and the fuller reasons in the lead judgment, I dismiss this appeal and abide by all the orders in the lead judgment.

JOSEPH TINE TUR, J.C.A.: I have read the judgment of my learned brother, I.O Akeju, JCA and I am concur.
The procedure for inspection of immovable property is set out in section 77(d)(ii) of the Evidence Act, 1945 as follows:
“(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 and 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 farther 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.”
The Court is to visit the locus in quo at the time the trial Judge considers that inspection of the property is material for the proper determination of the question in dispute. That is when the Court moves to the locus in quo to continue with the proceedings. Evidence is taken and the subject matter is inspected. Thereafter the Court reconvenes to its original place of sitting namely, the Court or to some other place of sitting. In the alternative the Court shall attend and make an inspection of the property only and thereafter reconvene in the Court, evidence, if any, of what transpired at the locus in quo being given in Court. In either case the parties or their legal representatives will be in attendance.

On 26th February, 2009 when the learned counsel to the defendant closed his case the learned trial Judge recorded as follows:
“Court: At this point I shall visit the locus and we are doing it straight away.
Observations at the locus. At the Grace Bill Road divides the whole stretch of what appeared as the original land of the parties such that the land in dispute is on the right side of the road as one comes from Ibeno. The left side is not in dispute. As one faces the disputed land from the Grace Bill Road, the land of the Defendants, which the plaintiff said was not in dispute formed a long thing stretch at the right side, traced in between the fence of one Okon Philip Odungide and an old stretch of water-way running from the eastern flank which water-way is said to be a thought old stream (Idim Ekpat Ayih). That water-way formed the right boundary as was confirmed by Defendant who however still said the disputed land was still that land.
The land of Unanaubok Mkponne Udoakagna (Original 1st plaintiff) bounds the land in dispute at the eastern end and that land is not in dispute (all sides agreed to this though initially 2nd Defendant said he did not know who owned that land.
On the left of the land in dispute it is the land and house of Felix Elijah sold to him by Ben Udoakagna (not in dispute).
The little portion on south eastern end which is in dispute, on the other side of the road – in front of the house of Imoh Robert, rival claims remained. But the same appeared to run down from the Defendant’s land on the other side of the Road which bounded Philip Odungide’s land.
The plaintiff’s witnesses were there to confirm their evidence and DW3 was also there to confirm his boundary with Defendants at the spot not in dispute-
SGD.: HON. JUSTICE ITA G. MBAMBA
JUDGE
26/02/2009.”
The visit to the locus in quo is to clear doubts arising from the evidence. See Ipinlaiye II vs. Olukotun (1996) 6 NWLR (pt.453) 148; Atumeyi vs. Achimugu (1980) NMLR 90 at 92.
The absence of notes of inspection on a visit to the locus in quo is not fatal. See Nwizuk vs. Eneyok 14 WACA 854 at 855; Maji vs. Shafi (1965) NMLR 33 and Shekse vs. Plankshak (2008) 7 SCNJ 22 4 at 232.

A visit to the locus in quo is a matter for the discretion of the judge if he is of the opinion that he will get a better grasp of the evidence that has been adduced before him. See Ezeokeke & Ors. vs. Uga & Ors. (1962) 1 All NLR (Pt.4) 482 at 486; Nwankpu vs. Ewulu (1995) 7 NWLR (Pt.407) 269.
The learned trial Judge visited the locus in quo in company of counsel, the parties and their witnesses. The judge’s notes shows that the parties actively participated during the inspection by confirming the learned trial Judge’s observations. There is nothing in the record to show that any of the parties or their respective Counsel objected to the methodology of the learned trial Judge or sought to put questions to any of the parties at the locus in quo in the Court room but were not allowed by the learned trial Judge. The appellant has not shown any miscarriage of justice. For this and the fuller reasons of my Lord I also dismiss this appeal as lacking in merit.

Appearances

Livinus Udofia Esq,For Appellant

AND

Akpadiah Etukakpan Esq.For Respondent