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25 APRIL, 1969

SUIT NO. S.C. 233/1967

3PLR (1969) 3


3PLR/1969/9  (SC)








  1. MADAM BINTU ADUKE AJALEBE (Substituted by Order of Court dated 12/64



Chief COKER – for the Plaintiff/Appellant

OLUWA – for the Defendants/Respondents






LAND LAW: – Declaration of title to land – Customary law – Need to trace an unbroken chain of title to the root – Effect of failure thereof

CHILDREN AND WOMEN LAW: – Women and real estate – Women and justice administration – Assertion of title under customary law – Relevant principles – Cost of litigation – Order for a new trial (trial de novo) by appellate court – Effect of error committed by trial court in administering visit to locus in quo

PRACTICE AND PROCEDURE – WITNESS: – Evidence of witness – Need for same to be pleaded or for pleadings to be amended to lead same – Where not pleaded and no amendment sought leading to the withdrawal of witness – Whether can form valid ground of appeal

PRACTICE AND PROCEDURE – VISIT TO LOCUS IN QUO:- Judge – Need to observe applicable principles – Where proceedings at an inspection form part of the trial – Duty of trial court to ensure that a visit to the locus do not justify a relaxation or non-observance of the law of evidence or the rules of practice and procedure – Need for parties to agree to any course set upon by the judge during visit to the locus which is beyond an opportunity to appreciate better the oral evidence already given at the trial – Validity of judgment greatly influenced by what judge heard and saw when he visited the locus – Duty of appellate court thereto




The appellant in this appeal was the plaintiff in the Lagos High Court (Suit No. LD/100/64) where his writ of summons was endorsed as follows:-

“The plaintiff claims against the defendants jointly and severally:-

(1)     The sum of £50 damages for trespass to a piece or parcel of land situated at Adana Street, Surulere.

(2)     Declaration of title in fee simple to the said piece of land.

(3)     Injunction restraining the defendants, their servants and or agents from committing any further acts of trespass to the said piece of land.”

At the trial, the plaintiff rested his case mainly on land certificate No. MO.3138 which was admitted in evidence and marked exhibit ‘A’ and in which the name of Yesufu Raimi appears as the first registered proprietor of the freehold interest in the land now in dispute. Yesufu Raimi testified that the land was bush when he bought it from the Oloto Chieftaincy family in November, 1962 and that he cleared the bush and erected a signboard on the land. By an instrument of transfer dated the 3rd of October, 1963, he transferred his interest in the land to the plaintiff. The plaintiff in turn testified that he bought the land from Raimi in 1963 and replaced Raimi’s sign-board with his own signboard. He also stated that about two months there-after, his signboard was removed and replaced by a signboard bearing the names of Bintu Aduke Ajalebe and Raliatu Omolara. In consequence of this, he instituted these proceedings.

For their part, the defendants denied that the land in dispute belonged to the Oloto Chieftaincy family. Their root of title is Oloto Olowo who, they claimed, was the original owner of Adana village where the land is situated. They traced an unbroken chain of title through their grandfather, Fatade Tokosi, who was a grandson of Oloto Olowo. It was part of their case that they and their ancestors have always been in possession of Adana Village and in order to establish acts of possession they called some of their tenants to testify at the trial.

In a reserved judgment, Ikpeazu J. dismissed the plaintiff’s claim with 60 guineas costs and it is against that judgment that the plaintiff has now appealed.

At the hearing of the appeal, it was contended on behalf of the plaintiff that the learned trial judge misdirected himself in law in that he did not allow Chief Ogundimu, the head of the Oloto Chieftaincy family, to give evidence of traditional history relating to the land in dispute. The argument was directed against a portion of the proceedings which reads as follows:-

“Note: Mr. Coker wishes to call further evidence Agreed, P. W. 5 Emmanuel Ogundimu sworn on the Bible states in English. I am Chief Oloto and head of Oloto family. Fatade Tokosi was a member of Oloto family. I know Adana area and how Fatade came to be in possession. Note. I observe that the evidence sought to be led or being led was not pleaded and call Mr. Coker’s attention to it. That being so I am not disposed to allow such evidence in the absence of an amendment.

Mr. Coker: If court rules evidence is not to be admitted I will abandon the witness. No application is made.

Court: Evidence is not to be admitted and Coker withdraws the witness.”

This aspect of the case was specifically considered by the learned judge in his judgment when he said:-

“The head of the Oloto Chieftaincy family, Emmanuel Ogundimu, was called by the plaintiff as his witness. When this witness was asked about the traditional history of the land in dispute, I called Mr. Coker’s attention to his pleadings which are completely silent on this point and indicated that in the absence of any amendment of the statement of claim, such evidence should not be led. No leave was sought to amend the statement of claim but rather the witness was withdrawn and the plaintiff’s case was closed.”

We observe from the record of proceedings that Chief Coker withdrew the 5th plaintiff’s witness, Chief Ogundimu. Having taken that course at the trial, we think it is not now open to him to attack the judgment on the ground that the learned judge refused to allow Chief Ogundimu to testify.

Immediately after the conclusion of the evidence of the 4th witness for the plaintiff on the 2nd September, 1966, the court carried out an inspection of the land in dispute. The inspection notes are as follows:-

“Court: now proceeds to the land in dispute on inspection.

Inspection notes 2 September, 1966

11 a.m. at the land in dispute.

Court arrived at the site in dispute with the counsel on both sides the surveyor and the parties. The boundary pillars at each of the four corners of the land in dispute were observed. The area in dispute is over-grown with grass and has no buildings on it. There are also no trees within the land in dispute. Exhibit ‘C’ is the plan used during the inspection as it contains the areas claimed respectively by each party. The land in dispute is verged pink and lies within a larger area verged blue and which is claimed by the defendants. South of the pink area in dispute is a small building which is shown on the plan. It is a Kitchen building behind which is a large storey house outside the area in dispute. There are six buildings within the blue area but outside the pink. The one immediately north of the pink area and about ten feet from it is built recently and is in fact still under construction. The roof is of corrugated iron sheet but the four sides are of wood. This building is not shown on the plan. Four other buildings are shown on the plan. They are all of corrugated iron sheet with mud wall. It is agreed by all sides that the buildings are not less than thirty years old. They are quite easily more. I marked these buildings, A, B, C, D. There is also a house to the north of D which is not shown on the plan Exhibit ‘D’, and behind it are still within the area is a touchstone (sic) showing the grave of Abudu Salami Bankole who, according to the inscription died on 7 September, 1927. There are three large trees south of B which are accepted by all sides to be not less than thirty years old. Mr. Coker concedes at the end of the inspection that the area in blue which is occupied by the buildings and trees and touchstone (sic) belongs to the defendants and states that their title does not extend to the area in dispute. I have also observed the course shown to be that of Adana Road. There is no marked course west of the land in dispute as is shown to be the case in the plan. A pronounced road starts Southwards from the South end of the land in dispute. East and north of the land in dispute and within the blue area is a foot path which joins up with a clear road outside the land in the vicinity of Old Queens Hotel Compound. This clear road corresponds to what is marked on the plan as have (sic).

Case is adjourned for continuation on the 7th and 8th of September, 1966.”

At the resumed hearing on the 7th September, 1966, the inspection notes were read “to parties and their counsel, and …. agreed as correct and accurate.” Chief Ogundimu then gave evidence for the plaintiff and, as stated earlier, in the course of his evidence, he was withdrawn by Chief Coker. Thereafter three witnesses testified for the defence.

On the ground of appeal that the judgment cannot be supported having regard to the weight of the evidence, counsel for both parties were at one in submitting that the proceedings at the inspection of the locus in quo were irregular and we consider that their submission in this respect is well founded.

If a judge is of the view that it is necessary to substitute the eye for the ear in the reception of evidence and that such a course will assist in arriving at a decision, he may carry out an inspection of a locus in quo but it must be constantly borne in mind that proceedings at an inspection form part of the trial, and that a visit to the locus cannot justify a relaxation or non-observance of the law of evidence or the rules of practice and procedure. We wish to observe that in the instant case, the object was not to view the locus so as to appreciate better the oral evidence already given at the trial. Anyone reading the notes will see that the judge must have himself subjected a number of persons to questioning on various aspects of the case, without any indication that the parties agreed to this course.

This brings us to a consideration of what effect, if any, the irregular proceedings had on the judgment.

Arising out of the pleadings and the evidence adduced at the trial, there was the straight issue of fact between the parties as to whether the land in dispute originally belonged to the Oloto Chieftaincy family or to Oloto Olowo. The learned judge took the view that there was no evidence on which he could come to the conclusion that the land belonged to the Oloto Chieftaincy family. He however accepted the traditional evidence given by the defendants, and as stated earlier, he dismissed the plaintiff’s claims. We are in no doubt that in arriving at this decision, he was greatly influenced by what he heard and saw when he visited the locus but as the proceedings at the locus were irregular, the conclusion at which we have arrived is to remit this case for retrial de novo.

The appeal therefore succeeds and the judgment of Ikpeazu J. in suit No. LD/110/1964 including the order for costs is hereby set aside and it is ordered that:

  1. the case be remitted to the Lagos High Court for rehearing de novo before another judge;
  2. the respondents do pay to the appellant the costs of this appeal fixed at 60 guineas; and
  3. the costs of the plaintiff/appellant in the High Court do abide the event.

Appeal allowed: retrial ordered.



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