Part 1: Innovation in litigation – Doing “Locus in quo” visitation virtually

Introduction:

Technology has become pivotal in today’s world. The influence of technology has gradually creeped into every space of human life and the legal industry has not been an exception.  Around the world, those responsible for administering justice systems are increasingly turning toward digitization and technological solutions, often with the goal of improving the efficiency and accessibility of justice.  One such area that technology can easily address is Locus in quo visitation in litigation.

What is Locus in quo?

Locus in quo is a British Common Law term meaning “scene of the event”.  More directly in Latin, it means “The place in which”. It is a legal procedure where the court undertakes to ascertain where an event took place. The fact finder or jurist may visit the locus in quo in order to fully understand and appreciate the evidence or matter before it and also to have a proper visual understanding of the facts before the court. The concept of locus in quo is much grounded within our legal jurisprudence through case law and practice directions.

Locus in quo under Ghanaian Law

It ought to be pointed out that a major importance of the locus in quo is for the court have a visual appreciation of a particular location which is very critical to the determination of the matter before it. It helps in making a determination of a factual matter. In the case of Bukari Atiiga Akusi (Per His Lawful Attorney) And Awudu Atiiga Akusi Vs. Musah Ninchemah, Bukari Ninchemah, Moro Ayamba And Daniel Apiawin[1]the court stated that Locus in Quo serves as a guide in resolving an issue. It stated “the District Court determined the boundary between the villages as captured in its judgment. It moved to the locus in quo and found that the Missiga-Kulungugu road served as the boundary between them.  It then held, touching on the disputed land that it “lies in the heart of Bulugu village with Kupelgu at poles apart separated by the Missiga-Kulungugu road…”  The holding is yet a confirmation of the decision of the District Court, that the villages are separated by the Missiga-Kulungugu road.” 

Also emphasized in the case of Joseph Adjetey Okine  vs. Julius Tsetse, Stephen Sallah, Theodore Adisu And Kwame Kpovi [2] the purpose of a locus in quo as gleaned from the preponderance of authorities is not to fish for evidence or to bolster the case of one party against the other but to rather make a firm determination of a fact in dispute.

Flowing from the Adjetey Okine case it is safe to posit and was in fact posited by the court also in the case of Kofi v. Kumansah[3] that a main purpose of locus in quo should be to clear a doubt which had arisen during the course of the hearing and not to find evidence either to support or destroy the case of one party or the other. The court stated in the case that “In the instant case, the trial magistrate visited the locus in quo when no need had arisen for the land to be inspected and the parties had not asked for any inspection. He collected further evidence and he should have had the witnesses at the locus in quo re-sworn to narrate their evidence in court when the court reassembled. Nevertheless, in the circumstances of the case and especially since the inspection was absolutely unnecessary and quite superfluous, his failure to observe the practice was not fatal.”

More particularly, the Supreme Court concluded in the case Nortey (No.2) Vs. African Institute of Journalism and Communication and Others (No. 2)[4] that: 

“We wish to state that locus inspection is an exceptional undertaking and not the norm in the trial process. Locus inspection becomes necessary where there is a material issue which could not be resolved except by visual inspection. The primary purpose of the visit to the Locus is to clear doubts which arise during the hearing and not to find evidence in support or to destroy the case of one party or the other.  It is therefore not granted for any flimsy reason but to help resolve a conflict which visual inspection would help unravel

A locus in quo can be used in a land suit, a criminal case or in any matter where there is doubt on a premise in dispute. For the court to make a move, the court must ascertain whether there is a matter of which its resolution can be properly made by a visual inspection of the premise. In the land mark case of Egbetorwokpor and Others v. The Republic[5] it was held that the court must exercise its powers of locus in quo only when in its view the inspection is necessary in resolving the material dispute before it. The Court stated same in the following words-

“Where a court was asked to visit a locus, it must at least be satisfied that there was a material issue which could not be resolved otherwise than by such inspection. The danger that impressions gained at the locus might be substituted for the conclusions properly drawable from the evidence and demeanour of witnesses, ought to inhibit a judge from making such orders lightly.” 

As a basic proposition, only the judge or the trial magistrate has the capacity to undertake a locus in quo. The fact is that a locus in quo forms part of the proceedings of the court much like putting in a witness in a box or hearing a motion from parties in a matter as such if the judge delegates any other person to undertake the locus in quo in the matter will amount to a change in the constitution or composition of the court of which same can render the proceedings a nullity. The position of the law as espoused in the case of Nana Essel Tawiah III v Kwesi Ewudzi[6] is to the effect that an entire proceeding will be rendered a nullity where a judge who sits on a case and gives judgment wasn’t present throughout the hearing. This proposition was re-stated in the case of Runka v Katsina Native Authority[7].  More particularly, this proposition is better conceptualized in the case of Amane v Kwabla[8] where in the suit before the court, the clerk and the registrar of the court were made to do the inspection on behalf of the magistrate. On appeal the court had an opportunity to discuss the onerous burden placed on the judge in inspecting the land personally without delegating. The court held that “In this instant case, Mr. F. D. Amooh, the assistant registrar and court clerk, was not a party to the suit, nor was he a witness in the case or at the inspection; viewed from that perspective his evidence ought to have no place in the proceedings; it is my view that his commission to inspect the land in dispute was nothing but an attempt to constitute him into a court, for the purpose of an inspection, in place of the trial magistrate or the court; this is an irregularity which cannot be cured as it goes to the very root of the trial and the judgment, for its practical effect has been to make the court (duly constituted by the trial magistrate) look and view the case and assess evidence with and through the eyes of its court officer who was neither the court nor a member of the court as constituted. When a court embarks upon an inspection of the locus in quo it does so as part of the process in the hearing of the case; it is a continuation of the hearing by substitution of its eye for the ear in the reception of evidence.”[9] The ratio resonates with that also in the recent case of Kwadwo Mireku and Tweneboah Koduah vs. Yaw Mireku[10]

These decisions are to the effect that where a locus in quo becomes apparent in a trial, the judge has no discretion nor opportunity to sub delegate to even a court official to undertake the inspection. The must take time off him/her  schedule and duty in court to attend to the inspection personally as part of the hearing in the case. Having in view the schedule and load of cases to be heard by trial judges, this presents a strenuous task for the trial judge.

In other instances, though conditions of payment to be made by parties in relation to  locus in quo is fixed by a statute, there have been instances judges have ordered parties to pay exorbitant amounts to cater for  cost of transportation to conduct inspections. Meanwhile, the law requires that parties make payment to just officers accompanying the judge and not the judges themselves. Though this practice is deemed a serious misconduct on the part of any judge, the practice continues to thrive because parties are often desperate and want their trials to proceed quickly hence they succumb to these unconstitutional demands. In some instances, trials are put on hold because parties have not been able to make payment for the inspection of the locus in quo. [See the Chief Justice Circular Dated the 4th day of October 2007 contained in Justice Brobbey “Trial Courts in Ghana “at page 560-561]

Technology and Locus in quo

However, with the advent of technology, this arduous task of the judge inspecting the site personally and the risk involved in the light of land guard activities can be dispensed with by a click of a button which shall produce the exact location with all features thereon on a screen. The use of technology makes it all the more necessary without fear of equivocation especially because the procedure of a locus in quo requires the parties to be present with the judge where they point out to the judge any special feature or material which the court must avert its mind to during the inspection. In the practice direction issued in 1959 in  Practice Note: Gblevi Family v. Amanie[11] which was affirmed by the Supreme Court in the case of Brown vrs Quarshigah[12] the court stressed on the fact the inspection is not an end in itself. The parties who aided the court in visiting the locus in quo must have be invited under oath to state what connection they had with the locus in quo of which each party can cross examine them. The practice direction was emphatic in the following words-  

“The practice to be followed by a local court after visiting the locus in quo was stated by this court in Kwami and Kofi v. Adzonu and others (see Practice Note above) and it is further directed that it should be as follows: – The court should be accompanied by the parties and any relevant witnesses to the inspection. The parties or the witnesses there point out such places and things which are material to the case, etc. If certain other persons, who may assist the court in arriving at a decision in the matter are found on the land but who have not given evidence in court, are heard, those other persons should be asked to appear before the court when it re-assembles. Then when the court re-assembles all the persons who were used at the view must be put into the witness box, and on oath state what part they took in the recent visit to the locus and what each did. The parties that is the plaintiff and the defendant are to be given an opportunity of cross-examining those witnesses who after the inspection are called by the court itself, and at that stage must be deemed to be witnesses called at the instance of the court.”

As further stated in the cases of R v Dogbe[13] and Atuahene v Commissioner of Police[14] the court held that any witness or party used during inspection must be put in the witness box to afford either the defence or the prosecution an opportunity to cross examine them of which not doing same shall render the evidence inadmissible.

The necessity of the parties after the locus in quo to present a sworn in testimony of inspection thus affirms the proposition that the judge cannot be misled by the use of the technology of accessing the locus in quo inspection on a screen with virtual visual representations since the parties and the court will further be afforded the chance to correct any wrong impressions the judge might have had on the locus in quo.

Majority of the delay in land trials can also be associated with inspection of the locus in quo. Due to the heavy workload on most judges and magistrates, it has been realized that when trial judges order for the inspection of the locus in quo, they do not attend to them immediately. Trials are often given long adjournment dates in order for the judges ample time to visit the land in question.  These adjournments typically delay land litigation cases in court.

The use of GIS Technology has been applied in court with regards of ascertaining the state of the locus in quo in dispute. Although one will be quick to admit that the process of accepting such evidence is different the import of ascertaining the locus to resolve a dispute of fact remains the same. In the US case of PARKER v. SCRAP METAL PROCESSORS INC, a real estate property owner in Atlanta Georgia filed a suit against a scrap yard owner in combination with a law suit against the owners of the waste to pay for the cleanup. This was due to the fact that, a portion of his property had been used as a dumping site by a neighboring small business owner. The portion of the property in question was heavily wooded, so the dumping had escaped notice for several years, with some activity on the property starting as early as 1988. Approximately three acres of the study property were impacted by the neighboring small business owner. The prosecuting attorney decided to employ GIS technology and techniques to quantify any evidence that they had against the responsible party to ensure a conviction. The GIS technology proved to be powerful court room evidence as it clearly refuted the defendant’s story and helped secure a conviction. Furthermore, GIS techniques were used to calculate waste volumes in support of cost estimates for removal of the illegally dumped debris. This cost estimate was used to specify a dollar amount in the lawsuit filed against the responsible parties. [GIS Litigation Support Applications in the Courtroom by Pat Curley] [15]

Simple GIS technology such as Street View Map app, Google Earth, Google Maps and Drone Technology can be used to ascertain the status on the land. The judge in the comfort of the court room can see the land as parties are present in the court through a live video feed. All questions can be asked in the court room. In modern times the locus in quo can be ascertained in the comfort of the court with a live feed without the court physically moving to the site. This method is most convenient, effective, efficient and safe.

Conclusion:

We believe is time for judges, lawyers and litigants to insist on technology as a better mode of dispensing justice. The future of litigation will be enhanced with the involvement of technology.  

[1] [2019]DLHC8171

[2] [2018]DLCA4992

[3] [1984-86] 1 GLR 116

[4] (2013-2014) 1 SCGLR 703

[5] [1975] 1 GLR 485

[6] (1936) 3 WACA 52

[7] (1950) 13 WACA 98. Suffice to say that these cases involved a panel hearing yet the principles are applicable to cases where a single jurist hears the case.

[8] [1975] 1 GLR 417

[9]  Ibid at 420-421

[10] [2011]DLCA7928

[11] [1961] 1 GLR 1

[12] [2003-2004] 2 SC GLR 930 at 962 and 963

[13] (1947) 12 W.A.C.A. 184

[14] (1963) 1 GLR 448

[15] Pat Curly. 2005 “GIS Litigation Support Applications in the Courtroom.” Paper presented at 25th Annual ESRI International User Conference, San Diego: CA