CHUKWUOGOR V. OBUORA

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CHUKWUOGOR V. OBUORA

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1063

CHUKWUOGOR V. OBUORA

5

EMMANUEL M.O. CHUKWUOGOR

V

10 RICHARD OBIGIGBO OBUORA

SUPREME COURT OF NIGERIA

BELLO,



C.J.N.

APPELLANT

RESPONDENT

SUIT NO. SC 149/1985

OBASEKI,

15

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ESO,

NNAMANI,

UWAIS,

KAZEEM,

OPUTA,

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10th July, 1987

J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

Civil Procedure - Effect of failure to address court after inspection where matter

adjourned for judgment after the inspection - Effect of inspection after address.

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Evidence - Inspection forms pan of proceedings before adjournment for address

or judgment - Inspection of locus in quo - S.76 of Evidence Act - Nature

of inspection - When inspection should take place - Visit to locus in quo -

Evidence of visit to be given in court of

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- Two procedures prescribed

by law for visit to locus in quo.

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ISSUES:

1.

What is the effect of failure to address a court after a visit to a

locus in quo

for

inspection where judgment was given after the inspection.

2.

What are the procedures laid down by the Evidence Act for visit to the

locus in

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quo?

FACTS:

The appellant as plaintiff sued the respondent in the High Court for a declara-

tion that he is entitled to the use of a road leading both to his own house and that

of the respondent, an injunction and damages. On 9/4/81 both sides addressed

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the court and the judge fixed

9

/

1

1/81 for an inspection of the road and 15/12/81

for judgment. On 9/11/81 the judge inspected the road but failed to record minutes

of what transpired there and then though he mentioned it in his judgment. On

15/12/81 the judge duly delivered the judgment and dismissed the appellant's

claims. On appeal by the appellant to the Court of Appeal, the trial judge's deci-

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sion was upheld. The appellant further appealed to the Supreme Court, where he

raised an issue questioning the validity of the trial court's judgment which the ap-

pellant alleged to be outside the 3 months limit prescribed by s.258(1) of the 1979

Constitution.

HELD:

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1. Under s.76 of the Evidence Act a court which attends and makes an inspection

of the subject matter of a case, is expected to take evidence in court afterwards

of whatever transpired at the

locus.

Inspection therefore cannot be separated

from the evidence and forms a vital part of the proceedings before adjournment

for final address or judgment. The failure of counsel to address the court after

1064

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NIGERIAN SUPREME COURT CASES

[1987] 2 N.S.C.C.

the inspection of the

locus in quo

amounts to a failure to exercise a right to give

final addresses.

2.

The Evidence Act laid down two procedures for visit to a

locus in quo

that is,

the Court may adjourn to the

locus

and continue sitting there in the normal way

by hearing and taking evidence of witnesses or it may just move to the locus to

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inspect the subject-matter of dispute and return to the Court room for evidence

of the inspection to be adduced.

3.

The inspection brought forward the commencement of the period prescribed

in s.258 of the constitution to 9/11/81 and to a later date if further evidence and

addresses had followed the inspection, the fact that the date of judgment was

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fixed on 8/4/81 notwithstanding.

CASES REFERRED TO IN JUDGMENT:

1.

Enang v. Adu

(1981) 11/12 S.C. 25 at p.42.

2.

Lokoyi v. Olojo

(1983) 8 S.C.61 at pp.68-73.

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3.

Ojomu v. Ajao

(1983) 9 S.C. 22 at p.53.

4.

Ifezue v. Mbadugha

(1984) S.C. N.L.R. 427.

5.

Paul Odi v. Osafile

(1985) 1 N.W.L.R. 17.

6.

Sodipo v. Lenmminkainen OY

(1985) 2 N.W.L.R. 547.

7.

Dominic ffezue v. Mbadugha

(1984) 5 S.C. 79.

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8.

Taylor v. Methodist Church

(1986) 4 N.W.L.R. 136.

9.

Aremu v. A-G. of Western Nigeria

(1967) N.M.L.R. 62 at p.63.

10.

Musa Maji v. Mallam Shewa Shaffi

(1965) N.M.L.R. 33 AT P.34.

11.

Chief Aaro Nwizuk & Ors v. Chief Warribo Eneyok & Ors

14 W.A.C.A. 354.

12.Ejidike & Ors v. Obiora

13 W.A.C.A. 270.

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13.Adeleke Arutu v. R.,

4 F.S.C. 77.

14.Awoyele v. Ogunbiyi

(1985) 2 N.W.L.R. 816.

15.

Ukpe lbodo & Ors v. Enarofia & ors

(1980) 5 - 7 S.C. 42, 55.

16.

Onobruchere & anor v. Esegine & anor

(1986) 1 N.W. L.R. (Part 19) 799 at

804.

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Chief G.R.I. Egonu, S.A.N.

for the Appellant.

Respondent not represented by counsel

OBASEKI, J.S.C.

(Delivering the Lead Judgment): This appeal has its genesis

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in an action filed in the High Court of East Central State in the Anambra/Awka

Judicial Division holden at Awka on the 27th day of April, 1974, i.e. just over 13

years ago. The claim is in respect of the right to use a road and as set out in

paragraph 25 of the statement of claim filed by the plaintiff/appellant, reads:

"Wherefore the plaintiff claims from the defendant as follows -

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(a)

A declaration that the plaintiff is entitled to the use of the road leading from

the Enugu-Onitsha road to the house of to plaintiff and the house of the de-

fendant

at

Umuogbunu village, Awka town within the Court's jurisdiction at

all times. The said road is verged PINK on plan No. PO/E98/74 filed with

this statement of claim;

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(b)

N200.00 being damages for nuisance;

(c)

An injunction restraining the defendant, his servant or agents from obstruct-

ing the plaintiff from the use of the said road."

On the order of the High Court (Aseme, J.) pleadings were filed and served

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and exchanged. At the close of pleadings, the case listed before Umezinwa, J.

for trial. The learned trial Judge after hearing evidence and addresses and con-

ducting an inspection of the

locus in quo,

dismissed the plaintiffs claim in its en-

tirety.