Can Visit To Locus In Quo Be Delegated By A Court To Another Party? By David Andy Essien, Esq.

*By David Andy Essien, Esq.

 

 

INTRODUCTION:

Facts are the fountainheads, lubricants and forerunners of the law. This is why the entire process of adjudication is designed to breathe life and purpose into idle and near comatose facts. Consequently, visit to locus in quo qualifies as one of the numerous life-injection tools available to a court in the facts synchronization process.

The phrase, “locus in quo”, is a legal jargon that means “place in which” and it is used to refer to the place where something is alleged to have occurred. Visit to locus in quo, also called “inspection of real evidence”, is a judicial handiwork geared towards the application by a court of its visual senses in aid of its sense of hearing for the overall attainment of justice. Put differently, it is a sensory judicial exercise that entails the authentication, with the eyes, of what the ears heard in open court. This process of authentication is certainly more beneficial to the truth-searching process because the court, being a natural person, will apply the eyes and the brain to see and absorb physical things.

Considering the busy schedule of a court, a curious mind may ask: can a court of law carry out its duty of visiting a locus in quo through proxies? This legal question, which can be couched in a hundred different ways, queries the legality of considering a visit to locus in quo as a tiresome pinprick that can and should be delegated to a third party.

DO ENABLING STATUTES PERMIT AND/OR SANCTION THE DELEGATION OF VISIT TO LOCUS IN QUO BY A COURT TO ANOTHER PARTY?

To begin this inquiry, there is need to give a clear meaning to the word, “Court”. The use of the word, “Court”, is narrowed down in this work to mean any person, excluding arbitrators, empowered by law to take evidence.  This is in tandem with the policy thrust of Section 258(1) of the Evidence Act 2011 which defines the word, “Court”, to include “all judges and magistrates and, except arbitrators, all persons legally authorized to take evidence.”

The starting point of this inquiry is Section 127(1)(b) and (2)(a) – (b) of the Evidence Act 2011. The said Section, identifying the “court” as the ever-present umpire in a visit to locus in quo, provides as follows:

“127(1) If oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it deems fit–
…
(b) inspect any moveable or immovable property the inspection of which may be material to the proper determination of the question in dispute.

(2) When an inspection of property under this section is required to be held at a place outside the courtroom, the court shall either:

(a) be adjourned to the place where the subject-matter of the said inspection may be and the proceeding shall continue at that place until the court further adjourns back to its original place of sitting, or to some other place of sitting; or

(b) attend and make an inspection of the subject-matter only, evidence, if any, of what transpired there being given in court afterwards, and in either case the defendant, if any, shall be present.” (Underlining mine, for emphasis)

Section 51 of the High Court Law, Cap. 63, Vol. 3, Laws of Akwa Ibom State 2022 (hereinafter referred to as “the High Court Law”), providing for “Inspection” and also identifying the “court” as the unchanged centerpiece in a visit to locus in quo, states thus:

“In any cause or matter, the court may on application of either party, or of its own motion, make such order for the inspection by the court, the party or witnesses, of any movable or immovable property, the inspection of which may be material to the proper determination of the question in dispute, and give such direction respecting such inspection as the court may seem fit.” (Underlining mine, for emphasis)

See also, Section 67 of the Magistrates’ Courts Law Cap. 92, Vol. 4, Laws of Akwa Ibom State 2022 and Section 45 of the Customary Court Law, Cap. 63, Vol. 2, Laws of Akwa Ibom State 2022 which are similarly worded.

Visit to locus in quo is a continuation of the proceedings pending in court. As such, proceedings at the locus in quo form part of the trial of a case. See the following cases: BABA – IYA V. SIKELI (2006) 3 NWLR (Pt. 968) 508 (CA) at p. 538, para. E and MAI UNGUWA LAWAL MAI GEZOJI & ANOR V. AUDU KULERE (2012) 4 NWLR (Pt. 1291) 458 (CA) at p. 482, paras. C – F, Ratio 13. In this wise, Section 46 of the High Court Law requires all civil and criminal matters and proceedings in the court and all business arising from it to be tried, heard and disposed of by a single Judge. It further requires all proceedings in an action subsequent to the hearing or trial, down to and including the final judgment or order, to be taken before the Judge before whom the trial or hearing took place. The litera and sententia legis of this provision calls for consistency in the composition of the court in all proceedings (visit to locus in quo included) and all through the hearing and determination of a case.

The inexorable inference drawn from the enabling statutes x-rayed above is that the exercise of this sensory judicial function by a Judge or Magistrate cannot and should not be delegated or assigned to another Judge or Magistrate; a court official; law enforcement agent(s); and/or any other party. This is because proceedings at the locus in quo are intrinsic to the trial of a case.

JUDICIAL ATTITUDE TOWARDS THE DELEGATION OF VISIT TO LOCUS IN QUO BY A COURT TO ANOTHER PARTY

The ne plus ultra of judicial wisdom, in considering whether a trial judge can delegate his visit to the locus to a law enforcement agent, in the 1968 landmark case of ERDMANN EVOYOMA & 5 ORS V. OKIKI DAREGBA & 3 ORS (1968) NMLR 389 (SC); (1968) ANLR 191 (SC) answered the said question in the negative. For the effect and importance of this decision, I hereby set out the relevant portions of the Leading Judgment of the Law Lord, Honourable Justice Lewis, JSC, at page 196 [of (1968) ANLR 191 (SC)], below:

“During the hearing of the case the learned trial judge apparently indicated his intention to view the area in issue but after the court stood adjourned on the 29th April, 1965 when the first defendant was giving evidence the record reads as follows for the 14th May, 1965: –

‘COURT:- On 11/5/65 I received a petition with sworn affidavit attached from the counsel for the defendants in this case informing the court that after the last adjournment of this case which was on 29/4/65 the plaintiffs and their people of Olota have gone on the land in dispute to dig the stream which is the subject matter of dispute in this case…. Immediately I ordered that the Chief Superintendent of Police detail an officer to investigate the allegation and report to the court today. The officer now reports – RICHARD AMGBADUBA – Sworn on bible states in English:-

I am Police constable No. 3088 attached to the Provincial Crime Office, Warri. On 11/5/65 I received instructions from the court to visit the land in dispute in this case. …. I did not meet anyone actually digging the canal but I am convinced that the fresh canal was being freshly dug from Olota to the creek called Obrifo.

COURT: I hereby order that the police investigate this case further and apprehend the culprits and charge them before the Chief Magistrate Warri for perverting the course of justice under section 111(1) of the Criminal Code and alternatively  for destroying evidence contrary to section 118(9) Criminal Code. Copy of this order to be served on the Chief Superintendent of Police Warri.’ ”

Drawing conclusions in the above case, at pages 197 – 198 [of (1968) ANLR 191 (SC)], the said Law Lord remarked:

“…it appears that the defendants’ counsel apparently thinking the plaintiffs were acting in contempt of court saw fit to address a private communication to the learned trial judge during the course of the action who, for his part, acting thereon directed a police constable to go to the scene to investigate the allegation and the police constable then went there accompanied only by the defendants and on his return the learned trial judge, without consulting or obtaining the consent of both parties, himself called the police constable to give evidence. ….

Finally, it was of course a wrong procedure for an inspection to be carried out in the presence of only one of the parties when the other party had not been given the opportunity to attend. Of course, so far as inspections by the court are concerned, it must be carried out by the trial judge and not by someone delegated to do so on his behalf. The action of the learned trial judge was clearly, therefore, in this respect, a most serious irregularity which, had we not otherwise decided that the appropriate course of action to take was a non-suit, would have had to be taken into account in order to consider whether a retiral (sic) was necessary. We have drawn attention to it in order that it may be clearly known that the actions to which we have referred, of both the counsel concerned and the learned trial judge, should not be followed by others in the future.” (Underlining mine, for emphasis)

In the case of CHIEF JOSEPH OLANUDU & ANOR V. MOSES TEMIYE & 3 ORS (2001) LCN/1025 (CA); (2002) FWLR (Pt. 120) 1634 (CA); (2002) 2 NWLR (Pt. 750) 21, where the learned Trial Judge delegated his visit to the locus in quo to the Acting President of Grade II Customary Court, the Court of Appeal unanimously resolved that such an inspection without the learned Trial Judge was a nullity. Honourable Justice Saka Adeyemi Ibiyeye, JCA (as he then was), delivering the Leading Judgment at page 37, paras. B – C, Ratio 8 [of (2002) 2 NWLR (Pt. 750) 21], had this to say:

“Apart from the foregoing misconception, the learned trial Judge appeared to have erred in other aspects such as, … he delegated his judicial function by commissioning the Acting President of Igbekebo Customary Court to inspect the imagined locus in quo and utilizing the report therefrom in his judgment. This approach to say the least, with due regard, was utter dereliction of duties of hearing, seeing and observing during trial by the learned trial Judge.” (Underlining mine, for emphasis)

At pages 38 – 39, paras. E – A, Ratios 11 and 13 [of (2002) 2 NWLR (Pt. 750) 21], the Legal Oracle, Honourable Justice Niki Tobi, JCA (as he then was), in his Concurring Judgment, rationalized the basis for rendering such an exercise a nullity and beautifully declared thus:

“It is the visit to the locus in quo. The learned trial Judge delegated his responsibility to visit the locus in quo to the Acting President of Igbekebo Customary Court. This is a very wrong procedure and I condemn it. …. In visiting the locus in quo the Judge must be present. As a matter of law, by the visit to the locus in quo, the Judge temporarily changes his environment from the traditional courtroom to the locus in quo. The Judge must be present to hear and see witnesses step boundaries, if it is a land matter, or show the court the subject matter, its features and all that. …. An inspection of locus in quo without the Judge is a nullity. It is like another person who is not a Judge giving a decision in a matter in the court room. This is clearly an impossibility but I thought I can draw the analogy, though stupid.” (Underlining mine, for emphasis)

In the case of MAI UNGUWA LAWAL MAI GEZOJI & ANOR V. AUDU KULERE (2012) 4 NWLR (Pt. 1291) 458 (CA), where the learned Trial Judge was represented at the locus in quo by two Assessors (officers of the Court),  the Court of Appeal did not gloss over this aberration. The Penultimate Court, speaking through Honourable Justice Theresa Ngolika Orji-Abadua, JCA, at pages 479 – 480, paras. G – A; page 481, paras. F – D; and page 482, paras. C – F, Ratio 13, consolidated its stance in the following words:

“The record firstly depicts that it was not the Judges of the trial Upper Sharia Court as constituted that conducted the visit. They were not present at the visit, rather they were represented by one Musa Gyaza and Mr. Lawal D’Musa described as a messenger, who, apparently, conducted the visit. …. At this juncture, I am compelled to invoke the decision in the case of Olanudu v. Temiye (2002) 2 NWLR (Pt. 750) 21….

In this case, it was never indicated that the court visited the locus in quo, rather it was stated that the court was represented by the two gentlemen mentioned above. Assessors are definitely different from the court itself. ….

As I earlier observed, the stated representatives of the trial Upper Sharia Court at the visit to locus were not members of the Judges of the said trial court. They were mere staff of the court. It is my candid view that be it Sharia Court proceedings or proceedings under a common law system, a court is under a duty to visit the locus in quo or inspect the subject matter of the action since by the visit, it is shifting the proceedings i.e., proceedings of the court thereto. Since it was boldly and succinctly stated that the court was represented by Musa Gyaza and M. Lawal D/Musa, it seems clear that the visit to the locus in quo was not conducted by the trial Upper Sharia Court and as such the conduct is bereft of all legal principles and cannot be remedied or rectified in any form. See the case of Olanudu v. Temiye (supra). The record of this appeal clearly shows that the trial Upper Sharia Court was represented by the said staff of the court during the visit to the locus in quo and it was in clear breach of the trial court’s fundamental duty. In this regard, issue No. 2 is hereby resolved in favour of the appellants.” (Underlining mine, for emphasis)

At page 493, paras. C – D, Ratio 14; page 494, paras. C – D, Ratio 17; and page 495, paras. C – D, Ratio 15 of the above case, Honourable Justice Joseph Tine Tur, JCA, concurred with the Leading Judgment and held firmly thus:

“Inspection of the farmland to see the extent of the damage to the guinea corn was to be conducted by ‘the Sharia Court’ in company of ‘the parties or any witness’…. Section 30(1) and (2) of the Law supra is not a licence or authority for the messenger s or assessors who were not witnesses to the farmland. Inspection of movable or immovable property the inspection of which may be material to the proper determination of the question in dispute is not to be by messengers nor what the learned Justices of the High Court called ‘assessors’ at page 44 lines 5 – 18 of the printed record. Assessors are mere advisers to the court; they have no votes in determining the matters in controversy. See Adeigbe & anor v. Kusimo & Ors (1965) NMLR 284 at 288. ….

There is no provision under Section 30(1)(a) of the Law supra for the use of assessors in inspecting movable or immovable property except they come within the term ‘witness’ or ‘witnesses’ so they could testify if the need arises. The Upper Sharia Court abdicated her role in adjudication. The inspection forms an important part of the trial for it may be material to the proper determination of the question in dispute between the parties.

The Jurisdiction to inspect movable or immovable property in the course of trial is conferred on the Upper Sharia Court by substantive Law … but not the Sharia Court’s (Civil Procedure) Rules 2008. Therefore, when it is provided under section 30(1) and (2) of the Law supra that inspection is to be conducted by ‘…the Sharia Court in company of the parties or any witness’ it means it is the presiding Sharia Alkali and the assistants or members constituting the court under section 4(1) of the Law supra that shall carry out the inspection in company of the parties and the witnesses.” (Underlining mine, for emphasis)

Honourable Justice Obande Festus Ogbuinya, JCA, making his position known, at page 496, paras. C – G, Ratio 16, commented as follows:

“Besides, it was an aberration in adjectival law for the trial Upper Sharia Court to assign its function of visit to locus in quo to the staff of the court. By law, visit to locus in quo is a function that is within the exclusive monopoly of adjudicating court, not duty of court officials. …

The trial Upper Sharia Court woke up to its bounden duty, regarding the visit to locus in quo, when on 06/10/2004, it ruled: ‘At the last adjourned date this court, adjourned in order to visit the farm in issue to see the damage alleged to have been done to the farm’. Incidentally, that court never kept faith with its proceedings as it sent Musa Gyaza and M. Lawal D’ Musa, court officials, to do the visit. In that wise, it is goofed. I dare say, it is a sacrilege of judicial procedure. The court below, to my mind, was in visible error when it endorsed the wrongful conduct of the trial Upper Area Court.” (Underlining mine, for emphasis)

CONCLUSION:

Since the exercise of judicial functions cannot be delegated by a Judge or Magistrate, while presiding over a case, the position will remain the same in cases requiring a visit to the locus in quo. By the phraseology of the enabling provisions, no room or space is created for a Judge or Magistrate to delegate this duty.

Like the Wise Men who personally travelled from the East to Jerusalem in search of the New Born King, a court is expected, in law, to personally embark on a visit to the locus in quo in search of justice. A delegation of this sacred duty to a proxy will amount to a dereliction of duty which invariably nullifies the entire exercise.

 

*David Andy Essien, Esq., is an Associate in the Law Firm of Usungurua Bassey & Associates, No.140 Atiku Abubakar Way, Uyo, Akwa Ibom State. He can be reached at davidandyessien@gmail.com. Twitter: @DavidAndyEssien