LEGAL PRINCIPLE: EVIDENCE LAW — Real Evidence — Locus in Quo — Limits on Use of Judge’s Observations
PRINCIPLE STATEMENT
A judge visiting the locus in quo should not substitute his personal observations for sworn evidence. If a feature has changed due to weather, that fact must be pleaded and proved by evidence, not inferred by the judge.
RATIO DECIDENDI (SOURCE)
Per Ogwuegbu, JSC, in Ojiako v. Ewuru (1995) NLC-1031992(SC) at pp. 20–22; Paras. D–B.
"Having visited the locus in quo, the learned trial Judge placed himself in the position of a witness and arrived at conclusions based on his personal observations of which there is no evidence on record. If the Ekpe wall was reduced to a ridge by the action of weather, one would have expected the Plaintiffs to plead the same and lead evidence on it. The learned trial Judge proceeded to resolve the conflict by substituting the result of his own observation of the Ekpe wall which had been reduced to a longitudinal ridge in the absence of any sworn testimony to the effect. He thereby reached a wrong conclusion."
EXPLANATION / SCOPE
A locus visit supplements evidence; it does not replace it. The judge cannot rely on personal observations not supported by sworn testimony. Changes to the land must be pleaded and proved. The principle ensures that the judge does not become a witness. The court must base its decision on evidence, not speculation. The rule applies to all trials. The judge may use observations to understand evidence, not to create new facts. The appellate court will interfere if the judge relies on unproven observations.