Abowaba V. Adeshina (1946)

LawGlobal Hub Judgment Report – West African Court of Appeal

Oloto Chieftaincy land—Sale without consent of Chief Oloto—Waiver of
forfeiture—Admissibility of evidence of waiver though waiver not pleaded—
Rules of pleading—Practice and Procedure.

Facts

The defendant to a claim for possession and declaration of title pleaded an allotment to his predecessor in title by Chief Oloto. It was undisputed, however, that the sale to the defendant was made without the consent of Chief Oloto, and was therefore liable to •forfeiture. The defendant, without pleading waiver, adduced, without objection from the plaintiff, evidence of the waiver.

Held

(i) that, as the waiver was a very material fact in the defence, it should have been pleaded;
(ii) the penalty for failing to plead a material fact is.the exclusion, upon objection being taken, of evidence to establish it;
(iii) the plaintiff, having taken no objection at the trial, the evidence of waiver was admissible, and the plaintiff could not take the objection on appeal.

Per curia= The defendant in a suit for possession of land must, in Nigeria, plead all material facts upon which he relies to answer the plaintiff’s claim. Appeal from the Supreme Court of Nigeria.

Appeal dismissed.