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SC. 570/1964.

6TH MAY. 1966.

3PLR/1966/83  (SC)



SIR LIONEL BRETT, J.S.C. (Presided and Read the Judgment of the Court)






(For himself and on behalf of Ifaribijo family)


Lekan Lajide -for the Appellant.

B.O. Babalakin (with him, M.O. Adio) -for the Respondent.


REAL ESTATE – COURT – Excessive criticism – Duty of Judge to avoid.

PRACTICE AND PROCEDURE – COURT- Trial Judge forming unfavourable view of conduct of one of the parties during trial – Whether entitled to say so in his judgment – Duty of court in relation thereto.

PRACTICE AND PROCEDURE – Conduct of parties during trial – Trial Judge forming unfavourable view of conduct of one of the parties – Whether entitled to say so in his judgment – Limitation thereto.


BRETT, J.S.C. (Delivering the Judgment of the Court): This is an appeal by the defendant against the judgment of Somolu, J., in the High Court of Western Nigeria, by which the plaintiff, suing for himself and on behalf of the Ifaribijo family of Ile-Igbo, was granted £I50 damages for trespass to land and an injunction to restrain further trespass. It was the defendant’s case that the land in question belonged to the family of which he is the head and the action was fought on the issue of title. The Judge found in favour of the plaintiff and it has not been submitted that there was not evidence on which he was entitled to do so. There were minor discrepancies in the evidence for the plaintiff but they were not important enough to destroy his case, and there is nothing in the submission that any inference in favour of the defendant arose from the evidence as to the ownership of adjoining land.

As we are satisfied that the Judge came to the right conclusion on the facts we find it unnecessary to review the evidence at length, but there are certain passages in his judgment which are complained of as misdirections and to which we must refer.
There had been two previous suits in customary courts over the title to the land and the records were produced in evidence. We think there is substance in the submission that the trial Judge used these records more freely than he should have in assessing the truth of the evidence given in the action he was trying, and that some of the matters which he regarded as discrediting the defendant were not shown by any admissible evidence to be the responsibility of the defendant at all.
A certain Bello Oyeboade, Chief Akogun of Ile-Igbo, had given evidence in support of the plaintiff’s title in one of the earlier suits. He was called as a witness for the plaintiff in this suit and said that he knew nothing about the land in dispute and that in the previous suit he had said what the plaintiff told him to say. The Judge treated him as discredited, which he was perfectly justified in doing, but he went on to say –

“But I have no hesitation in holding that this witness has been prevailed upon to recant as he did by some people with influence on the side of the defendant, which in my view does not help the latter’s case in the least.”

and later he said of the witnesses for the defence –

“I find the defendant to be a covetous liar who believes that he can mobilise false witnesses to misdirect the course of justice and I reject their testimony.”

We find no evidence to show that the defendant procured Bello Oyeboade or any other witness to perjure himself and suspicion is not enough to justify a positive finding of this kind. The finding was not, however, the basis of the Judges assessment of the credibility of the witnesses; he did not say “these are witnesses procured by the defendant to give false evidence, therefore I disbelieve them” but “I disbelieve these witnesses, therefore they were procured by the defendant to give false evidence.” The ultimate finding of fact thus remains unaffected.
The Judge also expressed the view that the plaintiff in one of the previous suits, named Liasu Oyesiji, has been guilty of some sort of sharp practice and treated this as throwing further doubt on the good faith of the defendant in the present suit. Oyesiji and the present defendant claimed a common interest in the land but the present plaintiff had made no suggestion of sharp practice, and the defendant had had no opportunity of answering such a suggestion. We think it would have been better if the Judge had not gone out of his way to introduce it in his judgment.
Exception was also taken to a passage in the judgment in which the Judge referred to the defendant’s “efforts to confuse the court” and “attempt to throw up dust”. The Judge was commenting on the fact that the defendant had called evidence to contradict evidence called for the plaintiff which he had not challenged in cross-examination, and this was a fair subject for comment. Of the language in which the Judge expressed this and other conclusions we would, with all respect for him. say this. If a Judge has formed an unfavourable view of the conduct of one of the parties or of a witness he is perfectly entitled to say so in his judgment in order to explain the decisions he has reached, and provided accuracy is not sacrificed a judgment is not necessarily the worse for being couched in vigorous terms. A Judge should, however, avoid saying more than is necessary by way of criticism of persons who are not in a position to answer him back, and should be careful not to let a judicial decision assume what might be regarded as the tone of a partisan argument. We do not consider that in the present case the Judge’s conclusion are vitiated by the language he used but his final decision might have been less unpalatable to the defendant if the language had been more restrained and if criticisms of the defendant’s conduct had been confined to matters clearly established by the evidence and necessary for the determination of the issues in the case.

The appeal is dismissed with costs assessed at 26 guineas.

COKER, J.S.C.: I concur.
LEWIS, J.S.C.: I concur.

Appeal dismissed.



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