BRIGGS V. BRIGGS

• Pages: 398-415

398

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NIGERIAN SUPREME COURT CASES

[1992] 1 N.S.C.C.

BRIGGS V. BRIGGS

ABIGAIL EVERETT WILLIAM BRIGGS



PLAINTIFF/RESPONDENT

(for himself and as representing

other members of Everett William

Briggs family.)

V.

OPUFAA SNITHERS BRIGGS



DEFENDANT/APPELLANT

(substituted by order of Court

dated 1

1

/

6

/85) for himself and

on behalf of Nda Snithers Briggs

family of Abonnema.

APPEAL No. SC. 211/1986.

SUPREME COURT OF NIGERIA

UWAIS,



J.S.C.

NNAEMEKA-AGU, J.S.C.

0 LATAWU RA,



J.S.C.

A KPATA ,



J.S.C.

BABALAKIN,



J.S.C.

27th March, 1992.

Estoppel - Per rem judicatanz - Conflicting judgments.

Practice

and

Procedure - Visit to locus in quo - When necessary - Purpose of - Incorrect

procedure at - Effect - Method of inspection - Trial judge making observation in his

judgment about the visit without taking evidence - Whether derogates from provisions

of section 76 of Evidence Act - Retrial - When may a court order same.

ISSUES:

1.

When is a visit by court to a

locus in quo

necessary?

2.

What is the duty of a judge making an inspection of

locus in quo?

3.

When may a court order a retrial?

FACTS:

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The plaintiff sued the defendant in the High Court for damages for trespass and

an injunction in respect of a parcel of land which had been the subject-matter of

previous litigations.

While the plaintiff claimed that the land in dispute was the subject of litigation

in Suit No. 108/61 which ended in favour of Everett William Briggs, the defendant 45

on his part, relied on another Suit in respect of the same land, and contended also

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 close of evidence and addresses of the parties the learned trial judge

adjourned the case to a future date for judgment, but on that date the trial judge 50

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BRIGGS V. BRIGGS

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399

told the parties that he proposed "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."

At the

locus in quo

the trial judge inspected the land and the structures thereon.

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He made no notes and took no evidence from any witnesses there nor later in

court.

In his judgment the trial judge found for the plaintiff for N400.00 as damages

for trespass and granted the injunction sought. Dissatisfied with this judgment, the

defendant appealed to the Court of Appeal where his appeal was dismissed and

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judgment of the trial court affirmed.

Still Dissatisfied, the defendant further appealed to the Supreme Court. His

main complaint was 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 arrived at conclusions based upon his personal observation of which there

15 was no evidence on the record.

HELD:

1. The purpose of a visit to the

locus in quo

is to enable the trial judge see on the

ground what he heard in evidence and saw on documents tendered.

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What the learned trial judge did by his visit to the

locus in quo

was to enable

him clear doubt that he felt arose in evidence from the totality of the evidence

about those two issues before him and which issues can only be resolved by

a visit to the scene. (See p.405, line 43 & p.406, line 2).

Per

NNAEMEKA-AGU J.S.C.

25 2. When a conflict occurs on the evidence of both sides as to the existence or

non-existence of a state of facts relating to a physical object, and such a conflcit

can be resolved by visualising the object, material things, 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.

(See p.411, lines 23 - 28).

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Per

OLATAWURA, J.S.C.

3.

The purpose of a visit to the

locus in quo

is not to recite the evidence already

led but to clear doubts which might have arisen about the conflicting evidence

or apparent misrepresentation of fact by either side, and to avoid a miscarriage

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of justice. (See p.411, lines 46 - 48).

Per

AKPATA, J.S.C.

4.

It is not open to a judge making an inspection of

locus in quo

to substitute the

result of his own observation for the sworn testimony nor to reach conclusions

upon something he had observed in the absence of any testimony on oath as

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to the existence of facts he has observed. The trial judge must not make himself

a witness.

(See p.415, lines 6 - 9).

Per

UWAIS, J.S.C.

5.

The fact that no evidence is taken at a

locus in quo

or back in court before a

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trial judge makes an observation in his judgment about his visit to the

locus in

quo,

does not derogate from the provision of section 76 of the Evidence Act

cap. 62. Thus, unless there is any evidence to be given, the court needs not

take evidence either at the scene or after the visit.

(See p.408, lines 36 - 46).

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