CaseLaw
Ogundele V. Fasu (1999) CLR 11(m) (SC)
Brief
Facts
The appellant whose claim (as plaintiff) against the respondent (as defendant) for damages for trespass on land claimed to be the appellant's family land and an order of perpetual injunction restraining the respondent from further acts of trespass on the land, was dismissed by the High Court of Ondo State, and whose appeal from the decision of that Court was dismissed by the Court of Appeal, has brought a further appeal to this Court.
Ojuolape, J., who heard the case at the High Court was of the opinion, on the pleadings, that it was common ground that the parties had their respective farmlands from the same grantor who was their common ancestor, that they had a common boundary and that the main issue for determination in the case was: "where lies the common boundary between the two parties?" after which the subsidiary issue would arise whether the respondent ha crossed that boundary. Having considered the evidence adduced by both parties, the learned trial Judge came to the conclusion that the appellant's story that the land in dispute belonged to his family was not true having regard to the totality of the evidence. He came to this conclusion after setting out the principle that should guide him when parties rely on conflicting traditional history a set out in Kodjo v. Bonsie (1957) 1 WLR 1223. In accordance with that principle, he tested the traditional history by reference to the facts in recent years as established by evidence. It was clear from the judgment of the trial Judge that the evidence he relied on was the oral evidence of the witnesses who testified. It has not been suggested on this appeal that he was wrong in believing or disbelieving any of the witnesses.
In the course of his judgment, the judge in several places made mention of an inspection of the land he conducted "with the parties and their counsel as well a some of the witnesses". Extracts from the judgments show that: (1) The inspection covered about four hours during which the judge and the parties, their counsel and some of the witnesses went round various location on the land in dispute. (2) The court observed that: "the ancient footpath which runs through exhibit 'A' is the one along the yellow line and which represents the common boundary between the plaintiff's land and that of the defendant. The defendant's family land is on the western side of the yellow line while that of the plaintiff's is on the Eastern side of the yellow line"; (3) The court observed: "the defendant's family members' farm were found scattered all over the area B."
The trial judge (delivering judgement four months and a few days after conclusion of evidence and final addresses) held that the appellant was not in exclusive possession of the land in dispute and dismissed the appellant's claim.
Dissatisfied with the judgment of the trial court, the appellant appealed to the Court of Appeal which held that the reference made by the trial court to the visit to the locus in quo did not affect its conclusion and that the delivery of judgment outside three months did not occasion any miscarriage of justice to the appellant. The Court of Appeal then dismissed the appeal whereupon the appellant further appealed to the Supreme Court.