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MALLAM v. AFTIKUS (2020)

MALLAM v. AFTIKUS

(2020)LCN/14263(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Monday, June 01, 2020

CA/YL/128/19

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

NICHODEMUS MALLAM APPELANT(S)

And

BABA AFTIKUS RESPONDENT(S)

RATIO

WAYS OF ESTABLISHING TITLE OF OWNERSHIP TO LAND

It is trite that the party claiming title to land must show that he acquired his title in any of the five ways as enunciated or spelt out in the popular case of IDUNDUN VS. OKUMAGBA (1976) 9 – 10 (SC), 227; (1996) 1 NMLR 200, these are:
1. Ownership proved by traditional evidence.
2. Ownership proved by production of title documents.
3. Ownership proved by acts of ownership, provided the acts extend over sufficient length of time and are numerous and positive enough to raise the inference that the person is the owner.
4. Acts of long possession and enjoyment of the land as prima facie evidence of ownership of the land with reference to which such acts are done.
5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See also, ADESANYA VS. ADERONMU (2000) 9 NWLR (PT. 672) 370.  PER UWA, J.C.A.

THE ESSENCE OF A VISIT TO LOCUS BY THE COURT

The essence of a visit to locus by the Court is for the Court to see, in this case the land in dispute in the presence of the parties. In ORUGBO VS. UNA (2002) LPELR – 2778 (SC) P. 27, PARAS. A – E, his lordship Tobi, JSC, gave the essence of a visit to locus thus:
“The major essence of inspection of locus is to bring to the fore the evidence of both parties without bias. It is a forum to allow parties show the Court important boundaries and landmarks to enable the Court decide the issue or issues in dispute. Where parties are given equal opportunity at the locus to show boundaries and landmarks, show other evidence in their favour, an appellate Court will not throw out the findings of the trial Court…”
See, GWAMILE VS. IDIH & ABIR (2008) LPELR – 44139 (CA) PP. 33 – 34, PARAS. D – A, ATANDA VS. ILIASU (2012) LPELR – 19662 (SC) P. 20, PARAS. C – E and BRIGGS VS. BRIGGS (1992) LPELR – 804 (SC) PP. 31 – 32, PARAS. D – A. PER UWA, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

The trial Court’s finding cannot be faulted. A competent Court had determined the title to the land in dispute in a previous suit between the parties and judgment entered in favour of the Respondent herein, neither party can or is permitted to re-litigate the same issue by a fresh action on what has already been decided. The reason is to put an end to litigation otherwise there would be no finality in litigation; it ensures that the rights of litigants are laid to rest. The Court would not encourage proliferation of litigation. See, ALAO VS. AKANO (1988) LPELR – 410 (SC) P. 13, PARAS. A – D, BONNY & ORS VS. YOUGHA & ORS (1969) LPELR – 25524 (SC) PP. 7 – 8, PARAS.G –B and COLE VS. JIBUNOH & ORS (2016) LPELR– 40662 (SC) P. 54, PARAS. A – E. PER UWA, J.C.A.

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The Taraba State High Court (hereafter referred to as the trial Court) in its judgment delivered on the 6th day of March, 2019, dismissed the appellant’s suit (as plaintiff) for being an abuse of the Court’s process.

The background facts as given by the Appellant are that as plaintiff at the trial Court vide his writ of summons taken out on the 19th day of August, 2013 claimed as follows:
(a) “Declaration of title over the piece of farmland lying and situated at Fitowa-Jen in Karim-Lamido Local Government Area and bounded as follows:
(i) To the North by 2 pieces of farmland lying side by side and belonging to one Jinkeng (defendant’s father) and one other Bomanda respectively.
(ii) To the South by another piece of farmland belonging to Bomanda.
(iii) To the East by 2 piece of farmland lying side by side and belonging to Jinkeng (Defendant’s father and one Danladi respectively.
(iv) To the West by 2 pieces of farmland belonging to Bagudu Katte and Obadiah Bello.
​(b) Declaration that the Defendant’s interference

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with the plaintiff’s right over the disputed land amounts to acts of trespass.
(c) Perpetual injunction to restrain the defendant and all those claiming through him from further acts of trespass.
(d) General damages for trespass.
(e) The cost of this suit.”

The Respondent on the other hand, contended that he had previously litigated with the appellant in respect of the disputed land. At the close of the trial, the trial Court visited the locus. It was alleged that in its judgment, the trial Court relied on its observation at the locus and found that the disputed land formed part of the land earlier litigated upon by the parties, in consequence held that the suit constituted an abuse of the Court process and dismissed the claim. The appellant being unhappy with the decision appealed to this Court. Three issues were formulated for the determination of the appeal thus:
1. “Whether the trial Court was right in law when it did not hear evidence from witnesses during the locus visit but used its personal observations and the unsworn statement of BUBA JIO in determining that the subject matter of the suit has been previously

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litigated upon by the parties in suit number TRSJ/86/2010 (distilled from grounds 1 and 4).
2. Whether the trial Court is not wrong in law when it relied on the sworn depositions and oral evidence of JECHONIAH SAMUEL DAKO in determining the suit despite the fact that the interpreter and the person who wrote down the statement were not called to testify and whether such a deposition so interpreted is admissible or of any value in the absence of the original Hausa Language version in which the statement was made? (distilled from ground 2)
3. Whether the findings of the trial Court that the appellant could not produce any evidence of the persons who witnessed the sales transaction of the disputed land to the appellant is perverse and liable to be set aside.” (distilled from ground 3)

The Respondent on his part formulated a sole issue thus:
“Whether from the evidence and coupled with the visit the trial Court was right when it dismissed the Appellant’s case on the ground that the land has been litigated upon” (distilled from grounds 1, 2, 3, and 4).

In arguing the appeal, the learned counsel to the Appellant D.O.

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Ovoyenta Esq. relied on his brief of argument filed on 19/8/19, deemed properly filed on 14/10/19 as his argument in urging us to allow the appeal, set aside the decision of the trial Court and grant all the reliefs sought by the Appellant at the lower Court. In arguing his first issue, it was the contention of the learned counsel that the procedure followed by the trial Court at the locus is wrong and unknown to law; pages 122 – 126 of the printed records of appeal were referred to. It was argued that the method used by the trial Court at the locus, proceedings of which were relied on in its judgment is a breach of the right to fair hearing as the trial Court did not put Buba Jio and PW2 Salau on oath to testify during the visit to locus or in Court to testify and be cross examined. The procedure was said to be in contravention of Section 127(2) (a) and (b) of the Evidence Act, 2011. It was submitted that the trial Court ought not to have relied on the statement of Buba Jio and PW2 Salau who testified at the locus in determining that the land in dispute belongs to the Respondent and the dismissal of the Appellant’s suit. It was contended that the

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Appellant was not given an opportunity to cross examine Buba Jio and PW2 “Salau” at the visit to locus which is a breach of the appellant’s right to fair hearing. See, DARLINGTON EZE VS. F.R.N. (2017) VOL. 70 PART 2, NSCQR 482 at 552. It was argued that the proceeding is a nullity, further that the trial Court ought not to have relied on its personal observation at the locus in determining the suit. It was submitted that no witness testified before, during or after the visit to locus to resolve the boundary issue between the parties, to determine whether the land in dispute is part of the land earlier litigated upon. Further, that evidence ought to have been led at the locus in respect of the identity of the land and the boundary neighbours. Also, that the respondent who made out that the two pieces of land are the same ought to have produced a plan to prove the identity of the land. See, SHEKSE VS. PLANKSHAK (2008) VOL. 35 NSCQR 56 at 71, PARAGRAPHS D – C. It was argued that the trial Court was wrong in finding that the two lands are the same, the finding was said to be in conflict with the records of the previous suit number

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TRS/86/2010 earlier before the Court.

In arguing issue two, it was submitted that the evidence of the DW1 Jechoniah Samuel Dako at pages 45 – 48 of the records indicates that the witness made his statement to the interpreter in Hausa Language and same was translated into English Language by the interpreter therefore the recorder of the depositions and the interpreter ought to have been called to testify in Court otherwise the depositions and subsequent oral evidence in Court to confirm the truth of the depositions is hearsay. See, OLALEKAN VS. STATE (2001) 18 NWLR (PT. 746) 793 at 819, PARAGRAPHS F – H and OSAGIEDE OJO VS. DR. GHARORO (2006) 25 N.S.C.Q.R. 712 at 731, PARAGRAPHS C – E. Further, that the two versions of the statement on oath ought to have been filed in Court with a jurat. See, MARKUS NATINA GUNDIRI & 1 OTHER VS. REAR ADMIRAL M.H. NYAKO & OTHERS (2013) ALL FWLR (PT. 698) 816 at 856, D – G. It was argued that the evidence of Jechoniah Samuel Dako ought not to have been utilized in arriving at a decision.

Under issue three, the learned counsel submitted that the trial Court was wrong to have found that the

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Appellant did not adduce any evidence to prove the purchase of the disputed land. It was argued that the PW1 who testified at pages 30 – 31 of the printed records of appeal and pages 69 – 71 testified that he and two others witnessed the sale transaction conducted according to Jenjo native custom. It was submitted that the evidence of the PW1 was neither challenged nor controverted. Also, that the evidence of the PW2 tallied with that of the PW1 to the effect that the appellant has been in possession of the disputed land since he bought same. We were urged to interfere with the trial Court’s finding and set aside the judgment of the trial Court. See, ISAAC GAJI & 1 OTHER VS. EMMANUEL D. PAYE (2003) VOL. 14 (PT. 1) N.S.C.Q.R. 613 at 636, PARAGRAPH H and SALEH VS. BANK OF THE NORTH (2006) VOL. 2, N.S.C.Q.R. 582 at 593. We were urged to allow the appeal, set aside the judgment of the trial Court and grant the reliefs sought by the Appellant at the trial Court.

​In response, the learned counsel to the Respondent N.A. Dodo Esq. holding the brief of M.G. Josiah Esq. relied on his brief of argument filed on 19/9/19 as his argument in this

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appeal in urging us to dismiss the appeal for lacking in merit and affirm the decision of the trial Court. In arguing his sole issue, it was submitted that the trial Court relied on the evidence adduced before the Court in arriving at its decision and not its personal observation. It was argued that the DW1 adopted his statement on oath, which was neither discredited nor challenged by the Appellant under cross examination particularly paragraphs 4, 5, 7, 8 and 9 of the statement on oath of the DW1, pages 45 – 46. It was contended that the trial Court did not rely solely on the statement of Buba Jio who only identified his boundary and he did not testify at the locus in quo. It was submitted that the DW1 did not testify at the locus. Further, that the procedure adopted by the trial Court did not contravene Section 127 (2) (a) and (b) of the Evidence Act, 2011. It was argued that where the boundaries and the identity of the land in dispute are known to the parties and the Court, the issue cannot be raised again. Further, that a site plan was therefore not necessary and that the trial Court was right to have taken notes at the locus. It was submitted that

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there was no burden on the Respondent to have tendered a site plan. See, BANKOLE VS. ADEYEYE (2014) ALL FWLR (PT. 721) P. 24. It was submitted that in the evidence of the DW1 he stated that he is the son of Samuel Dako which was not challenged. Further, that the trial Court was right to have acted on the evidence of the DW1 as his evidence did not require that of the person who wrote it or that of the interpreter. It was argued that the authorities cited and relied upon by the learned counsel to the Appellant are in respect of confessional statements in criminal cases. It was the contention of the learned counsel that even though the DW1 is an illiterate all that was required is a jurat, which is at page 44 of the printed records of appeal. It was argued that if the argument of the Appellant is to be accepted, the Appellant who testified as the PW3 also fell victim since his written statement on oath at pages 25 – 29 of the printed records of appeal, the Hausa language version was not attached to it. Further, that Nyako’s case relied upon by the Appellant is only applicable to documentary evidence which is written in another language apart from the

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language of the Court where both versions must be tendered. It was concluded on the issue that the trial Court was right to have held that there was no evidence of witnesses who witnessed the sale of the land in dispute to the Appellant and that it cannot be said to be a perverse decision. Also, that the Appellate Court has no duty to evaluate the evidence adduced at the trial by the parties and ascribe probative value to same.

The issues as formulated by the appellant are summed up in the Respondent’s sole issue. I would recouch the issues raised by the parties thus:
Was the trial Court right to have dismissed the Appellant’s case on the ground that the land in dispute had been litigated upon by the same parties?

It is trite that the party claiming title to land must show that he acquired his title in any of the five ways as enunciated or spelt out in the popular case of IDUNDUN VS. OKUMAGBA (1976) 9 – 10 (SC), 227; (1996) 1 NMLR 200, these are:
1. Ownership proved by traditional evidence.
2. Ownership proved by production of title documents.
3. Ownership proved by acts of ownership, provided the acts extend

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over sufficient length of time and are numerous and positive enough to raise the inference that the person is the owner.
4. Acts of long possession and enjoyment of the land as prima facie evidence of ownership of the land with reference to which such acts are done.
5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See also, ADESANYA VS. ADERONMU (2000) 9 NWLR (PT. 672) 370. The Appellant as plaintiff at the trial was duty bound to prove the declaratory reliefs sought and title to the land in dispute. All the five ways need not be proved; one is enough to prove title. From the pleadings and evidence led by the Appellant, he claimed to have bought the land in dispute from one Samuel Dako Alhaji the father of the DW1 (Jechonia Samuel Dako) as averred in his pleadings. One Ishaku Inkan testified as the PW1 and stated that he bought the land in dispute for the sum of N4,000.00 and paid his vendor in the presence of Ishaku Yinkang, (PW1) Wafili Dauda (late) and William Barau according to Jenjo native law

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and custom, it was not reduced into writing. Out of the three named as witnesses to the sale, only the PW1 testified in Court and stated that he was not aware of the settlement in the previous litigation between the parties over the larger part of the land which borders with the land now in dispute. He testified that he witnessed the sale transaction.

The PW1 agreed under cross examination that the land in dispute shares boundary with the land in respect of which the Respondent had sued the plaintiff in an earlier suit in the High Court. The PW1 gave the boundaries of the land previously litigated upon and the boundary neighbours of the land in dispute, different from the boundary neighbours as listed by the Appellant. The PW2 (the son of Samuel Daku Alhaji), under cross examination testified that he was not aware of the previous case between the parties and that he did not witness the sale of the land in dispute to the appellant but, was informed by his father who was informed by a neighbour. Therefore, the PW2 was not in a position to determine whether the land in dispute formed part of the land previously litigated upon between the parties in which

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judgment was in favour of the Respondent.

The Respondent made out that the land in dispute is part of the land in which he instituted an action against the appellant in suit No: TRSJ/86M/10 which was settled out of Court and the decision adopted as the judgment of the trial Court where the Appellant surrendered the land to the Respondent, then plaintiff.

It is clear that the appellant did not agree that the land now in dispute is part of the land previously litigated upon, where parties know or are agreed on the land in dispute, a plan is not necessary. But, as in the present case where the parties know the land in dispute but, are not agreed as to the location and boundaries of the particular portion in dispute a plan is needed to have been filed by the appellant as plaintiff. In such a situation, a plan showing the particular portion which the plaintiff claims would have been the only answer. See, OJIBAH VS. OJIBAH (1991) LPELR – 2374 (SC) P. 19, PARAS. B – C, AREMU VS. ADETORO (2007) LPELR – 546 (SC) P. 17, PARAS. C – E and SALAMI VS. GBODOOLU & ORS (1997) LPELR – 2984 (SC) PP. 16 – 17, PARAS. E – B.

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From the evidence of the appellant and his witnesses, it was not possible to ascertain that the location and identity of the land in dispute are outside the portion previously litigated upon. For this reason, the parties requested that the trial Court should visit the land in dispute, thus the visit to the locus in quo. In the trial Court, the boundaries given by the PW1 and PW3 differ from the boundaries given by the Respondent and his witnesses. The essence of a visit to locus by the Court is for the Court to see, in this case the land in dispute in the presence of the parties. In ORUGBO VS. UNA (2002) LPELR – 2778 (SC) P. 27, PARAS. A – E, his lordship Tobi, JSC, gave the essence of a visit to locus thus:
“The major essence of inspection of locus is to bring to the fore the evidence of both parties without bias. It is a forum to allow parties show the Court important boundaries and landmarks to enable the Court decide the issue or issues in dispute. Where parties are given equal opportunity at the locus to show boundaries and landmarks, show other evidence in their favour, an appellate Court will not throw out the findings of the

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trial Court…”
See, GWAMILE VS. IDIH & ABIR (2008) LPELR – 44139 (CA) PP. 33 – 34, PARAS. D – A, ATANDA VS. ILIASU (2012) LPELR – 19662 (SC) P. 20, PARAS. C – E and BRIGGS VS. BRIGGS (1992) LPELR – 804 (SC) PP. 31 – 32, PARAS. D – A. What is seen at the locus is real evidence and it is the most satisfactory proof. The parties in this case agreed to the visit to the locus for inspection, for the Court to see the land in dispute and whether it forms part of the land earlier litigated upon by the same parties. Both parties were present and were free to ask questions and clarify the boundaries and exact location of the portion of land now in dispute if need be. Before the visit to locus, the parties had given evidence in Court with their witnesses. The essence of the visit was for the Court and the parties to see and clarify the location of the land in dispute, the parties not having agreed as to whether the land in dispute formed part of the land previously litigated upon by the same parties. At page 142 of the printed records of appeal, in its judgment, the trial Court held

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thus:
“From the evidence so far considered with issue 1, it’s evidence (sic) that the parties in Suit No. TRSJ/86/2010 and the present suit is between same parties. From the confirmation of the position of the land in dispute, the Court on the application of the parties visited the land in disputed (sic) and saw for its eyes, that the land in dispute described in paragraphs 4 and 5 of the statement of claim and statement of the plaintiff on oath forms part the large (sic) piece of farmland belonging to the defendant. And which was litigated upon with the evidence of Jechoniah Samuel Dako, that his father Samuel Dako, from whom the plaintiff claim the land through purchase, had no land there Samuel Dako never sold his land to the plaintiff because he (Jechoniah Samuel Dako) is still in possession of the father’s farmland.”
The Appellant had alleged that the trial Court failed to hear evidence from witnesses during the locus but, used its personal observations and unsworn statement of Buba Jio in determining that the land in dispute was part of the land that had been litigated upon in Suit No. TRSJ/86/2010. Section 127 (2)(a) and

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(b) has set out the procedure to be followed at a visit to locus or inspection thus:
127 (2) “When an inspection of property under this Section is required to be held at a place outside the Court room, the Court shall either:-
(a) be adjourned to the place where the subject matter of the said inspection may be and the proceeding 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
(b) 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 defendant: if any, shall be present.”
Evidence obtained at the visit is real and reliable because the Court sees the subject matter in contention, in this case, the location of the land in dispute which the parties were not agreed on its location in proximity with the land previously litigated upon by the parties. The parties had the opportunity to clarify issues at the locus, ask questions and to be questioned concerning any grey area over what was on ground and/or concerning the evidence already adduced in Court

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for clarification. The trial Court in his “personal observations” being challenged by the Appellant at page 122 of the printed records of appeal noted thus:
“The Court is here following the application of the plaintiff for a locus visit to the land in dispute. Today being 30 – 4 – 2018, the Court conversed (sc) at the locus and the plaintiff is ordered to walk through the boundary edge of the land in dispute.”
Further at page 123 of the records noted as follows:
“The portion of the land as draw (sic) in the diagram is identified by the plaintiff that he bought from Samuel Dako. But the portion outside the diagram he said we bought from the father of the defendant.
The defendant on his part said it is the entire large land that belongs to his father.”
Further at page 125:
“The issue for this visit is ascertain (sic) the land in dispute before this Court from the land earlier litigated upon before Hon. Justice N.S. Adi where terms of settlement drafted and agreed by the parties was entered as the judgment in that suit.
This called for the interest of justice summon a witness

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namely Buba Jio to the West. He told this Court that his son’s name is Michael who also did not testify in Court though he was one the (sic) defendant’s witness.”
Further at page 126, the trial Court noted thus:
“This land in dispute belongs to Jenkin that is the father of the defendant. When he was coming here the defendant’s father used to farm here he is bounded by Samuel Dako.”
Thereafter, the trial Court asked questions from Buba Jio who was summoned by the Court to the locus; the parties explained the boundaries and the owners of the land surrounding the land in dispute in the presence of the Court and the boundary neighbours. The Appellant had the opportunity to ask questions and to answer questions put by the trial Court. The visit was for clarification on the already adduced evidence in Court, the parties having closed their respective cases before the visit to locus. At the inspection, the boundaries and boundary men were confirmed in the presence of the parties, the Appellant did not fault the questions asked by the trial Court at the locus or disagree with those that were identified as the boundary

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neighbours and did not dispute the fact that the land in dispute was part of the land earlier litigated upon by both parties. There was nothing wrong in the Court inviting Buba Jio a boundary neighbour to the West of the land in dispute even though he was not a witness at the trial. In most cases, traditional rulers, boundary neighbours and relatives amongst others could and do get invited for clarification of the subject matter as to who owns what. Therefore, the invitation of Buba Jio as a boundary neighbour was not out of place. The trial Court’s finding at page 142 of the printed records of appeal, earlier reproduced in this judgment to the effect that the parties in the earlier Suit No. TRSJ/86/2010 are the same, was not disputed by the Appellant. The trial Court also found that the land in dispute described in paragraphs 4 and 5 of the statement of claim forms part of the large piece of farmland belonging to the Respondent. Also, that from the evidence of Jechoniah Samuel Dako from whom the Appellant claimed through purchase made it clear that his father had no land at the location of the land in dispute and did not sell any land to the Appellant.

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The trial Court’s finding cannot be faulted. The Appellant did not prove otherwise that, the land earlier litigated upon and decided at the trial Court is not the same as the land now in dispute. The Appellant had the opportunity to have pointed out to the Court and the Respondent the location of the land he claims to be at a different location not within the land earlier litigated upon, he failed to do so. The trial Court’s finding that the parties had litigated over the larger portion within where the present land in dispute is located cannot be faulted. At page 142 of the records, the trial Court further held thus:
“The sum total of all the evidence and conclusions reached in this case is that the land in dispute been (sic) confirmed to be within the consent judgment was entered for, in favour of the defendant as plaintiff in case No. TRSJ/86/2010 cannot be litigated upon for the 2nd (second) time by another Court.”
The above conclusion of the trial Court cannot be faulted. Buba Jio whom the Appellant alleged testified at the locus, merely pointed out his boundary. The trial Court is free to take notes at an inspection in

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respect of what it saw on ground. The essence of a visit to locus in quo in a land matter includes identifying the land in dispute, the extent, boundaries and boundary neighbours, features on the land and to enable the Court see, in this case the land in dispute as described by the parties and their witnesses in evidence and to clear doubt as to the boundaries and location of the land in dispute. There is nothing on record to show that the parties or particularly the Appellant disagreed on the extent and location of the land in dispute. There is nothing on record to fault the visit to the locus in quo or that the trial Court did not comply with Section 127 (2) (a) and (b) of the Evidence Act, 2011. On the purpose of a visit or inspection of the locus in quo in NIGER CONSTRUCTION LTD VS. OKUGBENI (1987) LPELR – 1993 (SC) P. 10, PARAS. C – D, his lordship Oputa, JSC held thus:
“No Court visits the locus just for the fun of it. Such a visit may be undertaken if it would help the Court resolve some doubts or conflicts about certain aspects of the oral testimonies in court.”
See also, BRIGGS VS. BRIGGS (supra), ATANDA VS. ILIASU

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(2012) LPELR – 19662 (SC) P. 20, PARAS. C – E and GIWA VS. ANZAKU (2019) LPELR – 46880 (CA) P. 27, PARAS.A – B. The essence of the inspection was to enable the trial Court utilize its personal observation to resolve the conflict as to the location of the land in dispute in the evidence already adduced by the parties. See, YAKUBU VS. ALAGBON & ANOR (2015) LPELR – 40735 (CA) PP. 43 – 44, PARAS. B – C and BANKOLE VS. ADEYEYE (2014) ALL FWLR (PT. 721) P. 24, RATIO 3; (2010) LPELR – 8593 (CA) PP. 28 – 29, PARAS. D – A.

The boundaries of a disputed land must be strictly proved and ascertained. In the present case, the parties were present at the visit to the locus in quo, the parties identified the land in dispute with certainty in the presence of the Court, the appellant did not protest against any aspect of the inspection, his quarrel is that Buba Jio did not testify in Court, it was not necessary. The land in dispute having been identified to be part of the location of the previous land litigated upon, no other proof was required. See, ADESANYA VS. ADERONMU (2000) FWLR (PT. 15) 2492; (2000) 9 NWLR

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(PT. 672) 370; (2000) 13 WRN 104.

Further, a look at page 2 of the printed records of appeal the description of the land previously litigated upon as appears in paragraph (1) of the under taking for settlement and consent judgment where the Appellant conceded the land to the Respondent, tallies with the description given in the present case at the lower Court and as observed by the trial Court. The trial Court’s finding cannot be faulted. A competent Court had determined the title to the land in dispute in a previous suit between the parties and judgment entered in favour of the Respondent herein, neither party can or is permitted to re-litigate the same issue by a fresh action on what has already been decided. The reason is to put an end to litigation otherwise there would be no finality in litigation; it ensures that the rights of litigants are laid to rest. The Court would not encourage proliferation of litigation. See, ALAO VS. AKANO (1988) LPELR – 410 (SC) P. 13, PARAS. A – D, BONNY & ORS VS. YOUGHA & ORS (1969) LPELR – 25524 (SC) PP. 7 – 8, PARAS.G –B and COLE VS. JIBUNOH & ORS (2016) LPELR–

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40662 (SC) P. 54, PARAS. A – E. At page 142 of the printed records of appeal, the learned trial judge rightly held that the land in dispute is within the land in which the consent judgment was entered in favour of the Respondent as plaintiff in Suit No: TRSJ/86/2010 and cannot be litigated upon a second time by another Court.

I am at one with the above view of the learned trial Chief Judge. In sum, I resolve the sole issue as reformulated against the Appellant. I hold that the Appeal is without merit, same is hereby dismissed. I affirm the judgment of the learned trial Chief Judge Josephine Y. Tuktur, CJ. delivered on 6/3/19 in Suit No. TRSJ/89/2013. I award costs of N100,000.00 (One Hundred Thousand Naira) against the Appellant.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother Chidi Nwaoma Uwa JCA. I agree entirely with my learned brother that the appeal lacks merit and should be dismissed.
My learned brother has dealt exhaustively with the issue for determination.

​For the reasons contained in the lead judgment which I adopt as mine, I too dismiss

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the appeal.
I abide by all other orders in the lead judgment including the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

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Appearances:

D.O. Ovoyenta, Esq. For Appellant(s)

N.A. Dodo, Esq. holding the brief of M.G. Josiah For Respondent(s)