Alhaji Babatunde Adisa Thanni & ANOR V. Sabalemotu Saibu & Ors (1977)
LawGlobal-Hub Lead Judgment Report
S. SOWEMIMO, J.S.C.
In suit IK/97/68 the plaintiffs, who are the appellants before us, sued the six defendants, the respondents to this appeal, before the High Court of Lagos State, Ikeja Division (formerly in the Western State) on the 5th October 1966 and the claim reads: -“The Plaintiffs claim is for an order setting aside the Deed of Conveyance dated 17th October, 1965, and registered as No. 32 at page 32 in Volume 896 of the Registry Deed kept at Ibadan Lands Registery.”
Beckley, J, who tried the case gave judgment on 14th May 1973 in favour of the defendants thus: –
“I must accordingly hold on the evidence before me that the plaintiffs have failed to proof (prove) their case against the defendants.
“They have failed to prove fraud on the part of the 1st to 5th defendants and the entire claim must fail. This claim is accordingly dismissed.”
It is against this judgment that an appeal has been lodged.
When pleadings closed on 23/11/66 the plaintiffs averred that by a decision in suit 317/24, the Kuje Family was held to comprise of two branches, viz, the Imore and Amuwo, and that the Kuje landed property was vested in the two branches jointly. The defendants in the three statements of defence filed by them denied this averment. The 1st and 2nd plaintiffs also claimed to represent the Ogunbewon and Alaketu sections of the Amuwo Branch of the Kuje Family and therefore ought to be consulted and their consent obtained when a portion of the joint family property was to be sold to the 6th defendant by the 1st to 5th defendants. The defendants severally denied that the plaintiffs are members of the Kuje family. They averred that the only accredited representatives of the Kuje family are the 1st to 5th defendants, who after a family meeting in 1960, were mandated to and did sell the portion of the family property to the 6th defendant and executed Exhibit A.
At the close of the case, without any amendments to their averments, the defence in evidence admitted that by virtue of the judgment in 317/24 it was held that the two branches, Amuwo and Imore form the Kuje Family and that the family property belonged to them jointly. The 1st to 5th defendants also submitted in evidence through the 1st witness for the defendants, as averred by the plaintiffs, that they the Imore branch of the Kuje family sold the property covered by the conveyance, sought to be set aside, to the 6th defendant for 3,500(pounds) (7,000 Naira).
Although not pleaded by 1st to 5th defendant on the one hand, or the 6th defendant on the other hand, two documents were tendered in evidence, against the objection of learned counsel for the plaintiffs, and which documents came into existence during the pendency of this case. The two documents are: –
(a) Exhibit V titled ‘Kuje Family Agreement’ dated 16th May 1967 and tendered through the 1st witness for the defendants on 21/12/71.
(b) Deed of ratification dated 26th November 1966 registered on 17/12/71 as No. 53 at page 53 in volume 1375 in the Lands Registry Lagos and tendered in evidence by the 1st witness for the defendants on 21/12/71 as Exhibit W.
The learned trial Judge with regards to item (a) admitted this document under Order 42 of the applicable Rules of Court, i.e., Supreme Court (Civil Procedure) Rules Cap. 211 in Volume 10 of the Laws of Nigeria 1948 which reads: –
“Facts or circumstances occurring after the institution of a suit may, by leave of the court, be stated at any stage of the proceedings previous to the conclusion of the hearing, and the court may make such order as seems just respecting the proof of such facts or circumstances, or for affording all parties concerned leave and opportunity to meet the statements so introduced.”
With respect, we think that rules of court govern practice and procedure in court but definitely do not extend to the law of evidence. The learned judge was in error in admitting this document under the circumstances before him. With regards to item (b) this document went to no issue on the pleadings but the learned judge on the purported authority of Order 42, recited above, admitted it. In view of our comments on (a) above we hold that this document was wrongly admitted. We have dealt with these two documents now because of the reasons that the learned judge did not relate them to the pleadings, and had thought that the defendants had pleaded that the Imore and Amuwo branches of the Kuje family were the 1st to 5th defendants before him, and had therefore proved the sale of the family property jointly to the 6th defendant.
We have drawn attention earlier on that at the close of the hearing, 1st to 5th defendants on the one hand and the 6th defendant on the other hand, conceded that Exhibit A was not executed by the accredited representatives of the Kuje family but only by a section, that is, the Imore branch. At the close of the case therefore what the learned trial Judge had to decide was whether the plaintiffs are members of the Amuwo branch of the Kuje Family and therefore ought to have consented to the sale of the family property.
The plaintiffs led evidence both oral and documentary to show that at all times prior to 1966, they as individuals were accepted as members of the Amuwo branch of the Kuje Family and that dispute only arose when they claimed to represent two of the six sections which formed the Amuwo branch.
Alhaji Ade Thanni (now deceased), gave evidence as 1st plaintiff as well as Yaya Lemomu, the 2nd plaintiff. They called Wahabi Babalola Ogunbewon as a witness PW.2. Of the 1st to 5th defendants who claimed to have executed Exhibit A as the accredited representatives of the Kuje Family, only the 3rd defendant gave evidence. Two other witnesses – DW. 1, Mustafa Akanni Akinlolu and DW.2, Bisiriyu Ariyo were called as witnesses to the 1st to 5th defendants and the two witnesses are from the Amuwo branch.
6th defendant also gave evidence.
The first ground of appeal argued before us is that the judgment of the learned trial Judge is against the weight of evidence. On the traditional history of his family, Alhaji Ade Thanni had this to say: –
“THERE are seven branches of the KUJE family, namely: Orofin, Ajore, Iku-gbamola, Omoya, Ogbebunsun Pekun/Ogunbewon, Odu Akande, Emidawo Alaketu. The other six branches were not aware of this transaction. They did not assert (assent) to the transaction. I belong to the Ogbebunsun Pekun/Ogunbewon Branch. It is not true that any meeting or meetings of the entire members of the Kuje Family was or were held in 1960, and the Vendors were never so appointed or given any authority whatsoever to deal, act or do anything whatsoever out to Kuje Family land. Kuje begat three children namely, Omose, Adeyi, and Asolomogbo. Asolomogbo died childless. Adeyi had 4 children, namely, Orofin, Ikugbamola, Ajoke and Omoya. Omose had children, namely Odu Akande, Emidawo Alaketu and Ogbebunsun Pekun. Ogbebusun Pekun begat Afolagbade Okunoye; Afolagbade Okunoye begat Ogunbewon. Ogunbewon had 8 children; namely, Dauda, Ali, Talabi, Ibrahim Okunoye, Nusiratu, Nofisatu, Adeyebi and Morinatu Omowale Omolayajo, the last named Morinatu Omowale Omolayajo was my mother. I am a member of the Kuje family. The defendants excluding the 6th defendant are not entitled to deal with the family land without the knowledge of the other branches.” (Underlining ours)
In order to confirm this traditional history of genealogy he tendered the judgment in HK/117/65 dated 15th November 1968. The 1st to the 5th defendants in this case on appeal were the plaintiffs in HK/117/75 – Ex E. Amongst the defendants in that case, who are either party or witnesses in this case are (a) Yaya Lemomu (4th defendant in that case and 2nd Plaintiff in this case), (b) Wahabi Babalola (5th defendant in that case and plaintiffs’ 2nd witness in this case), (c) Mustapha Akinlolu (6th defendant in that case and the 1st witness for the defendants in this case), (d) Bisiriyu Ariyo (7th defendant in that case and 2nd witness for the defendants in this case). The 1st and 2nd defendants in that case are members of the Ogunbewon branch of Kuje family. The learned Judge in his judgment (who incidentally is the same Judge who tried the present case on appeal) stated as follows: –
“The plaintiffs who are the principal members of Kuje Family or Amuwo Western Nigeria the owners of the area of land situate lying and being at Ojo Road, Western Nigeria, delineated on the Plan marked Exhibit “B” in suit No. 258/22 and adjudged the property of the descendants of Kuje seek: –
(i) Declaration that the defendants are not members of the said Kuje family…
“Three witnesses gave evidence for the defendants, Wahabi Saka Babalola, the 5th defendant, gave evidence and traced his history to Kuje family. He stated that Kuje begat three children. These are Adeyi, Omose and Asolomo Ogbo. Omose begat Ogbebusun-pekun; Odu Akande, Emidawo, Ogebusun-Pekun begat Afolagabde Okunoye. Afolagbde Okunoye begat Ogunbewon, Ogunbewon begat 9 children, namely, Dauda, Mustapha, Talabi, Nofisatu, Braimoh, Ogunyemi Okunoye, Nusiratu, Adeyebi and Morinatu Omolayajo. Talabi begat Saka which is the father of the 5th defendants.
I accept that evidence. He was not shaken under cross-examination…
“Yaya Lemomu, another member of the family, and the 4th defendants also gave evidence. His evidence is to the effect that he is a descendant of Kuje. He agreed that he has been a party to the various litigations relating to the Kuje land in the past seven years. He farms on the Kuje land and he is one of the donees in Exhibit J.” …
“The claim before the court is at page 1 of this judgment. In regard to the first item of the claim it would be observed that the plaintiffs who were originally eight sued as principal members of Kuje family of Imore. The evidence for the defence reveals that there are two branches of the Kuje family, that is the Imore Branch and the Amuwo Branch. The plaintiffs do not claim to sue as representing both branches of the family and in fact the evidence reveals that most members of the family are not behind Momo Jimoh Sanni Abijo, the sole witness for the plaintiffs. The evidence of the defence which I accept also reveals that there has been no partition of the Kuje land between the two branches of the Kuje family, and in all the circumstances of this case I am convinced that the only witness for the plaintiff, who is the third plaintiff on the claim has no authority to sue on behalf of the family for the claims now before the court. The defendants have not denied that he is a member of the family and in all the circumstances of this case the claim of the plaintiffs cannot stand. In fact, as I have observed above the evidence of the only witness for the plaintiffs is absolutely unsatisfactory.”
…
“That the property belonged to the whole members of the Kuje family of Imore and Amuwo has previously been decided in previous judgments of the Supreme Court and as far as that evidence is concerned, that matter is res judicata.
“The plaintiffs’ claim must fail in its entirety and it is accordingly dismissed.”
(Underlining ours)
The case HK/117/65 went on appeal to the Supreme Court in SC. 114/69 and judgment was delivered on 11th October 1971 which inter alia reads:
“We are satisfied that in the evidence before him the learned trial Judge rejected the plaintiff’s case and accepted the defendants’ on the essential matters and he was entitled to come to the conclusion that he did.
“The appeal is dismissed.”
In further confirmation of the membership of the Ogunbewon and Alaketu families, Exhibit G, a registered Power of Attorney was tendered by the appellants and received in evidence. The donors described themselves as principal members of the Kuje Family thus: –
“In witness whereof the said family have authorised the principal members on behalf of the said family to sign or attest to this document.
Some of the donors are 2nd defendant, 3rd defendant, 4th defendant and the original 1st plaintiff in this case (now deceased).
The donees are (a) Jinadu Yesufu Bale of Imore (b) Sikiru Apanisile and the 1st Plaintiff, Babatunde Adisa Thanni (substituted for his elder brother – the original 1st plaintiff) in this case. The Power of Attorney is dated 5th July 1962.
Another Power of Attorney dated 5/1/61 and duly registered was tendered in evidence by the appellants and received (without any objection) as Exhibit H. The evidence on it which is in accordance with the content reads: –
“There has been occasion when members of the OGUNBEWON BRANCH have been donor and donee in a Deed of POWER OF ATTORNEY. This is a Power of Attorney dated 5th January 1961, and registered as No. 13 at page 13 in Volume 411 of the LAGOS LANDS REGISTRY AT IBADAN NIGERIA.
This Power of Attorney was executed by six branches of KUJE family. The donors are SALISU DOSUNMU, the Head Chief of AMUWO: he belongs to IKUGBAMOLA branch of the family: the second donor, ALI MUSTAPHA, from OGUNBEWON BRANCH, he is otherwise know as ALI ONIKIN. He was one of the 8 sons of OGUNBEWON. He was later installed the Head Chief of Amuwo: the third donor was SAKA IYEKANTAN, from IYEKANTAN BRANCH. The former was ALIMI AGEMO from ODU AKANDE BRANCH. The donees were (1) YAYA LEMOMU Head of EMIDAWO – ALAKETU BRANCH: (2) WAHABI BABALOLA from OGUNBEWON BRANCH, being a grandson of THANNI, daughter of OGUNBEWON. The fourth donee MUSTAPHA AKANNI AKINLOLU from ODU AKANDE BRANCH. He was secretary to the KUJE family at the material time. The fifth donee, BISIRIYU ARIYO, from OMOYA BRANCH. With this Power of Attorney, the donees have prosecuted court actions on behalf of the family – (Tendered – no objection – admitted and marked Exhibit “E”). They have been representing the family in cases up till 1971.”
With regards to the execution of Exhibit A, the plaintiff had this to
say: –
Out of the seven branches of KUJE family, six branches have from time immemorial settled on KUJE family land in AMUWO. They lived in AMUWO and settled there from time immemorial, i.e., some two hundred years ago. The seventh branch, i.e. the OROFIN branch had never lived on KUJE (Amuwo) before, never owned house or hut, nor pursued any form of occupation on the land. Exhibit “A” was executed on 27th October, 1965. There was no Head of KUJE family on 27th October, 1965. There was of course, the BALE OF AMUWO.” (Bracket ours)
On cross-examination, Alhaji Ade Thanni (now deceased) admitted that as a result of the Supreme Court judgment in SC.289/68, he filed an action, IK/19/69 which was still pending in court. He also gave evidence that his uncle, Mustapha Alli Ogunbewon was installed as the Alamuwo of Amuwo by all members of the Kuje Family and that at the same installation Bisiriyu Ariyo, 2nd witness for the defendants in this case, was installed as Otun Oba of Amuwo, Isiaka Iyekantan, the Osi Oba of Amuwo and Saula Nosiru as the Balogun of Amuwo. An affidavit sworn to during a case heard in 1920 by persons not parties to the case was tendered as Exhibit P. The witness further testified that in 1964 Barrister Awoliyi called on him in his office at the Investment House but denied that he came there on a representation made to him by the 6th defendant. He was later recalled to give evidence as to his knowledge of a Deed of Ratification which was alleged to have been executed by some members of the Kuje Family of Amuwo in favour of the 6th defendant, the knowledge of which he denied.
The 2nd witness to the plaintiffs was one Wahabi Babalola Ogunbewon whose evidence corroborated that of Alhaji Ade Tahnni in all material particulars. The 2nd plaintiff also gave evidence and traced his genealogical history to the Kuje Family.
On the defence, based on the pleadings, the 3rd and 6th defendants gave evidence. The 3rd defendant claimed to be the present Head of the Kuje Family at the time he gave evidence and significantly denied knowing the true traditional genealogical history of the Kuje Family but asserted that the two plaintiffs were not members of the Kuje Family. His evidence so far as is material to the case is quite contrary to the pleadings, because the 1st to 5th defendants had averred in the Statements of Defence that Exhibit A was executed by them as accredited representatives of the whole Kuje Family, whereas this witness in his evidence stated that Exhibit A was executed by only the Imore Branch of the family as there was a quarrel at the time between them and the Amuwo Branch from 1959. He said that it was during the pendency of this case that the Amuwo branch of the family executed a Deed of Ratification to give validity to the sale of the joint family property to the 6th defendant.
The 6th defendant also gave evidence and quite contrary to the averment in his Statement of Defence, admitted that only one section of the Kuje family, that is the Imore branch, sold the joint family property to him in 1959 and executed Exhibit A in his favour in 1965. He admitted that he had to renegotiate a sale of the same property by the 2nd branch of the family, that is the Amuwo branch, for a price of 1,000(pounds) for which a Deed of Ratification was made to validate the sale to him by the Imore Branch. He maintained that the 1st plaintiff Alhaji Ade Thanni, was never a member of the Kuje family, but strangely enough, he admitted that it was the same Alhaji Ade Thanni who gave him the history of the Kuje family. He gave some evidence of certain discussions with Alhaji Ade Thanni which was never put to Alhaji Ade Thanni when he gave evidence and the learned trial Judge for reasons not specified in his judgment used this evidence against Alhaji Ade Thanni.
It therefore appears to us that at the conclusion of the trial, there was sufficient evidence adduced and admitted by the defendants that Exhibit A, executed by the 1st to 5th defendants as accredited representatives of the Kuje family could not have conveyed the joint family property stated therein to the 6th defendant. We have earlier on pronounced on the admissibility and validity of the Deed of Ratification executed in 1968 and purporting to ratify Exhibit A which had earlier on been executed in 1965.
The question which came for a decision before the learned trial Judge was whether the plaintiffs have established that they are members of the ‘Kuje Family. In order to dispute the traditional history of the plaintiffs, the 1st witness for the defendants, Mustapha Akanni Akinlolu, who claimed to be the secretary of the Amuwo branch of the Kuje family from 1959, gave evidence denying that the plaintiffs were members of the Kuje family. He claimed that they were members of the Odofin family and that they had no interest in the property sought to be conveyed in Exhibit A. As we have earlier on referred, the 3rd defendant, David Olayemi who gave evidence as well as 2nd defendants’ witness, Bisiriyu Ariyo, both only made assertions denying the connection of the plaintiffs to membership of the Kuje family.
The learned trial Judge stated that the first question to be decided was whether the plaintiffs are members of the Kuje family. He then reviewed the pleadings before him and took the view that that was the first issue that had to be decided. We have referred earlier on to the situation as to the position of the parties at the close of pleadings as well as at the close of the trial. The learned trial Judge would have realised that the defendants admitted the following averments of the plaintiffs viz: –
(1) that in suit 317/24 the Supreme Court of Nigeria decided that the Kuje family land was jointly owned by the Imore branch, as represented by the 1st to 5th defendants, and the Amuwo branch.
(2) That the land which the Imore branch sold to the 6th defendant was not sold nor was the Deed of Conveyance made by the two branches of the Kuje family to the 6th defendant as claimed on Exhibit A.
(3) that contrary to their pleadings the 1st to 5th defendants admitted by the evidence called by them that they were not in fact the accredited representatives of the whole or entire Kuje family and did not negotiate on behalf of the Kuje family the sale of the land in 1960 to the 6th defendant.
The issues which the learned trial Judge was called upon to try at the close of the trial were as follows: –
(a) Are the plaintiffs members of the Amuwo branch of the Kuje family as between them on the one side and 1st witness for the defendants on the other This issue did not arise from the pleadings at all. The case of 1st to 5th defendants and the 6th defendant was that the plaintiffs do not belong to the only branch of the family as represented by the 1st to 5th defendants and that so far as they are concerned there is no Amuwo branch of the Kuje family as such.
(b) Whether in view of the non-recognition by the 1st to 5th defendants of the Amuwo branch of the Kuje family there was no need for them to consult or seek consent of that branch to the sale of the family property to the 6th defendant But in view of their admission that the suit 317/24 decided that the Kuje family comprised of the Imore branch and Amuwo Branch and that the property sold to the 6th defendant was part of the joint family property of the two branches of the Kuje family, was this issue still open
It may be stated that on the 13/12/68 the 1st and 2nd witnesses for the defendants and two others on behalf of themselves and the Kuje family of Amuwo applied to be joined as co-defendants. In a ruling dated 19/9/69, the learned Judge stated inter alia: –
“The main test for this application therefore, in my view, is as follows: –
(1) Are the applicants necessary parties to this suit
(2) Are their interests not adequately covered by the present defendants
In my view the applicants are not necessary parties to this suit. The plaintiff claims nothing from them, that is, no cause of action is disclosed against them on the summons. The statement of claim also does not disclose anything against them. Although there might be cases in which the court will compel an unwilling plaintiff to proceed against any party he does not wish to proceed against this is not such a case.
Secondly, it is my view that the interest of the applicants is adequately covered by the present defendants as witnesses for they claim to belong to the same family.
This application will accordingly be refused. The application is dismissed.”
(Underlining ours).
This point was not raised before us as a ground of appeal except as part of the argument canvassed on the first ground of appeal argued by Chief F.R.A. Williams, learned counsel for the appellants.
The evidence on either side was primarily based on traditional history, but the plaintiffs however, adduced evidence of recent acts in which their claim to membership of the Kuje family was recognised. The star witness of the defendants, Mustafa Akinlolu, who belonged to the Amuwo branch of the Kuje family and incidentally not to the Imore Branch of the 1st to the 5th defendants, depended for his sources of traditional history on decisions of the Supreme Court in four cases exhibited as A, B, C, D and also affidavit Exhibit P which was attached to the proceedings in the 1920 case. Exhibits A, B, C and D were proceedings and judgment in the individual cases set out. The learned trial Judge in deciding the issue before him stated inter alia: –
“This 1st issue is whether I am satisfied on the evidence that the plaintiff have established their claim that they are members of the Kuje family. A considerable volume of evidence had been led in this case to establish the claim of the plaintiffs to the membership of the Kuje family. I have subjected the evidence on this point to the minutest scrutiny. Firstly, it could not be doubted that there has been such juxtaposition between members of the Kuje family and the Odofin family during the course of the last 54years. There is no doubt-there has been some confusion as to who are or who are not members of the Kuje family. It is also a matter of doubt from the evidence whether Kuje and Odofin are members of the same family. We have no satisfactory history going beyond Kuje and Odofin establishing their affinity. Also it could not be doubted that there has been statements in proceedings by some members (of the) Kuje family indicating that Alhaji Ade Thanni or his (brother) Alhaji Babatunde Thanni is a member of the Kuje family; admonitions made honestly by some member, although mistakenly, but this could not be held as admissions by the entire family, shifting the onus of proof from the plaintiffs to defendants that Alhaji Ade Thanni and the other members of the plaintiffs are members of the Kuje family. Alhaji Thanni and the other plaintiffs must establish their relationship satisfactorily with the Kuje family for their claim to succeed. They claim their relationship through Ogbebusun – Pekun and Emidawo-Alaketu branch, but in the old cases coming from 1919 onwards, and the evidence given in them, there was no mention of any branch of Kuje family by name Ogbebunsun-pekun and Emidawo Alaketu. According to one of the witnesses for the defendant, these names came into existence during the Suit IK/117/65. The possibility that these names were later inventions to boost the claim of some people to the Kuje family land cannot be excluded.
I must hold that the existence of these two branches through whom the plaintiffs claim have not been satisfactorily proved. I accept the evidence for the defendants that these two names from whom the plaintiffs claim affinity with the Kuje family only came into existence during the hearing of the cases IK/117/65. The 2nd plaintiff on his own part admitted that his father Seidu Lemomu gave evidence in Suit Nos. 13, 14 and 18/1919 consolidated. In that case Exhibit “U”, Seidu Lemomu admitted that he is a tenant. To my mind the basis of the plaintiffs claim to membership of the Kuje family is tenuous and must be rejected.
Secondly, Alhaji Ade Thanni gave evidence that for 30 years he lost interest in Kuje family land and only revived his interest in 1961. Why did he sleep on his rights for 30 years Even if I find that the plaintiffs are members of the Kuje family simpliciter, would that finding be sufficient to avoid the contract entered into with Chief A. O. Lawson, the 6th defendant I cannot find principal members of Kuje family.”
(Underlining ours)
We wish to say that we agree with the learned trial Judge that it was the duty of the plaintiffs to establish such part of their claim as was not admitted by the 1st to the 6th defendants. The learned trial Judge used a portion of the evidence given in a suit in 1919 against the claim of the 2nd plaintiff. With respect to the learned trial Judge, we do not think he took into consideration the provision of Section 34 subsection (1) of the Evidence Law Cap 39 of Volume 2 of the Laws of Lagos State of Nigeria 1973 which reads: –
“34.(1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable:
Provided –
(a) that the proceeding was between the same parties or their representatives in interest;
(b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and
(c) that the questions in issue were substantially the same in the first as in the second proceeding.”
In the body of the judgment which we have recited above, the learned trial Judge did not consider the evidential value of the series of documents in which the Amuwo branch of the family had admitted that the 1st and 2nd plaintiffs were members of the Kuje family. All he said was that he was not satisfied that the plaintiffs have proved their claim to membership of the Kuje family. On settled principle, it is improper to determine traditional history solely on the demeanour of witnesses (see the decision of the privy council in Kojo II v Bonsie & Anor (1957) 1 WLR. page 1223 at page 1227). The learned trial Judge should have adopted the test set out in the Privy Council judgment which has been applied by this court in several cases, that “the best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable.
We wish to point out that the learned trial Judge was definitely in error when he stated in his judgment that the 2nd plaintiff admitted that his father, Seidu Lemomu gave evidence in proceedings tendered in Exhibit U. Exhibit U was tendered on the 21st December 1971 by the 1st defence witness and therefore it was not possible that the 2nd plaintiff could have been asked any question about the Exhibit that was never in evidence on the 16th December 1971, when he the 2nd plaintiff was cross-examined. Under cross-examination, the 2nd plaintiff had denied that his father was a customary tenant of Kuje. He was never challenged on that evidence and so it was wrong for the learned trial Judge to have held this point against him. We wish also to refer to the proviso to Section 34 of the Evidence Law Cap 39, which we recited above and hold that that was not applicable to the circumstances of this case as used by the learned Judge. See Joseph Nahman v. J. A. Odutola (14 WACA) page 381.
In further argument learned counsel for the appellants drew attention to documents tendered in evidence on the cross-examination of 1st defence witness which comprise of:
(a) admissions under Section 90 subsection 1 of the Evidence Law;
(b) admissions under Section 34 of the Evidence Law;
(c) admissions by 1st witness for the defendants that his oral evidence was not based on his own knowledge but was based on the proceedings and judgments in Exhibits A, B, C & D.
It must be pointed out that all the exhibits were tendered and admitted in evidence without objection by the defendants. The position of the law when no objection is raised in civil matters to documentary evidence tendered and not objected to is set out in Okeke v. Obidife & Ors (1965) NMLR page 113 at page 115.
Learned counsel for the respondents however, did not specifically reply to the argument of learned counsel for the appellants on each of the documents tendered but made a general statement that all the documents can only affect the credit to be attached to the evidence of the witness and no more and stated further:
“It is submitted therefore that the court should not accept the documents relied upon by the appellants for no other purpose than to contradict the witness because the conditions laid down in Section 90 subsection 1 of the Evidence Law were not fulfilled, they were not pleaded, and in the circumstances of this case objection could not be deemed to have been waived.”
(underlining ours)
With respect to learned counsel for the respondents, he was under a misconception that it is the duty of the court to raise objections to documents which are tendered in civil matters. He did not specify, in his reply, which conditions were not fulfilled under Section 90 of the Evidence Law.
In arguing this appeal, learned counsel for the appellants referred to Exhibits 5, 6 and 7 as admissions made by the 1st witness for the defendants. In Exhibit 5, a letter which the 1st witness for the defendants admitted writing to Mr. Omunnu and dated 9th June, 1964, he stated so far as it is material to this case: –
“The only accredited representatives of the Kuje family of Amuwo are: –
(1) Yaya Lemomu (2nd Plaintiff in this case).
(2) Bisiriyu Ariyo (2nd defendant’s witness in this case).
(3) Wahabi Babalola (2nd plaintiff’s witness in this case) of 10, Agoro Street, Lagos, appointed under and by virtue of Power of Attorney dated the 5th day of January 1961, and registered as No. 13 at page 13, in volume 411 of the Lands Registry in the office at Ibadan.
In Exhibit 6, 1st witness for the defendants admitted issuing the Public Notice which is titled Kuje Family of Amuwo and therein is stated the name of the man to be installed Alamuwo of Amuwo as Alli Ogunbewon, as well as that of Bisiriyu Ariyo (DW.2) as the Otun Oba of Amuwo and 2 others. The Notice described I.A.O. Okunoye (another Ogunbewon) as Chairman, Kuje Family and M. A. Akinlolu Secretary, Kuje Family.
Exhibit 7 is a Public Notice which the 1st witness for the defendants admitted he caused to be advertised in the Sunday Express of June, 4, 1961, and reads as follows: –
“Public Notice
“At the general meeting of the Kuje family of Amuwo held at Amuwo on Sunday May 28, 1961 the whole members of Kuje family and the People of Amuwo unanimously selected and appointed the following persons to fill the following chieftaincy vacancies, namely: Alli Ogunbewon, Alamuwo of Amuwo – Head Chief, Bisiriyu Ariyo, Otun Oba, Isiaka Iyekantan, Osi Oba; Saula Nofiu Balogun of Amuwo. Capping shall take place at Amuwo on a date to be notified later. Dated this 30th day of May, 1961. By Order I.A.O. Okunoye; Alimi Dosunmu; Lawal Tijani; Yaya Lemomu, Shifawu Iyekantan; Raliatu Iyajemi for themselves and on behalf of the Kuje family.” (Underlining ours)
On the face of the documents we have just referred to, they come within the provisions of Section 90 subsection (1) of the Evidence Law, and they are therefore admissions made by the 1st witness for the defendants. Learned counsel for the respondents submitted that in cases of such documentary evidence, they can only be admissible if pleaded. With respect again, we wish to draw the attention of the learned counsel to relevant provisions governing pleadings and state that all that is required to be pleaded are facts and not the evidence by which such facts are to be established. See U.A.C. Limited v. Saka Owoade (13 WACA) Privy Council, page 207.
Learned counsel for the respondents was at pains to convince us that Exhibits R, 8 & 9 were not admissible against the respondents in proof of the truth of their respective and several contents, and in support of the proposition, he referred us to the case of British Thomson-Houston Company Limited v. British Insulated and Helsby Cable Limited (1924) 1 Ch 203 at 210. For the purpose of a decision in this appeal it is hardly necessary to reflect on this issue, but since learned counsel had addressed this court at length on the subject we think we should point out that in respect of Exhibits R & 8 and the Statement of Claim in Exhibit 9 which, indeed, are pleadings delivered in previous cases in which the respondents were parties, there is no question but that on the authority of the case of British Thomson, Houston (supra), those pleadings cannot be used as admissions against the respondents in proof of the truth of their respective contents.
With regard however to a document (used in Exhibit 9), which is an affidavit deposed to by members of the respondent’s family and on which reliance was placed by the respondents in a previous suit in which the Kuje family was concerned, we think that the statement in the 4th Edition of Cross on Evidence reflects the present state of the law. That statement reads: –
“The decision in the British Thomson – Houston case may in due course be applied to affidavits, but until this is done, the authorities on the latter subject necessitate the treatment of a 3rd person’s affidavit used by a party in previous proceedings as a species of admission so far as subsequent litigation is concerned.”
(Cross on Evidence 4th Edition at p 449)
The cases which manifest the application of the above statement of the law include Pritchard (Executrix of Daniel Pritchard v. Bagshawe & Ors (1851) 11 CB 459; also 138 ER 551 and Richard v Morgan (1863) 4 B & S 641; also 122 ER, 600, particularly Blackburn, J., at 604, 605, 606 & 607.
Further, with respect to the submission of learned counsel that these Exhibits should not have been received in evidence (and if received should not have been acted upon), because the appellants failed to plead the same, we think attention should be drawn to the provisions of Order XXXII rule 5 of the Supreme Court (Civil Procedure) Rules Cap. 211 vol X 1984 edition of the Laws of Nigeria applicable in the Lagos State High Court at the time of the hearing by the High Court of these proceedings which read: –
“Every pleading shall contain a statement of all material facts on which the party pleading relies, but not the evidence by which they are to be proved, such statement being divided into paragraphs numbered consecutively, and each paragraph containing as nearly as may be a separate allegation.” (Underlining ours)
In Davy v. Garrett (1877) 7 Ch D 473, the Court of Appeal in England was of the view that the Rule of Court (similar to the provisions above), which provides that evidence is not to be pleaded applies to admissions (such as here) as well as to other evidence. In his judgment, James, LJ., made the following observations:
“… It is said that part of the resolution is evidence supporting the plaintiffs’ case, but the Rules of Court expressly forbid the statement of evidence in pleading. The party is to state facts constituting the wrong of which he complains and he is not to state evidence, whether consisting of admissions or not.” (Underlining ours).
(See 7 Ch. D. at 485)
And on the same issue Brett, LJ., dealing with rule 4 (similar to the provisions of our Rule under consideration) had this to say: –
“The distinction is there pointed out that every pleading shall contain a statement of the material facts on which the party pleading relies, but not the evidence by which they (that is, those material facts) are to be proved. The distinction is taken in the very rule itself, between the facts on which the party relies and the evidence to prove those facts. Erle, CJ., expressed it in this way. He said there were facts that might be called the allegata probanda, the facts which ought to be proved, and they were different from the evidence which was adduced to prove those facts.”
(See Philipps v Philipps & Ors (1878-9) 4 QB 127 at 132-3)
The counsel did not cite any authority in support of his submission that under cross examination no document can be tendered unless it was pleaded. The learned trial Judge, although he said in his judgment that learned counsel for the appellants cross-examined the 1st witness for the defendants so long as to cover 38 pages of his record, made no reference whatsoever to these exhibits or their effect on the case before him.
Attention was also drawn to a statement of the witness (i.e., 1st witness for the defendants) made under oath in an earlier case in which he stated that 1st plaintiff is a member of the Kuje family. He admitted giving such evidence on oath but stated that it was given in error and the learned trial Judge thought that it was open to him to accept his evidence as corrected by the 1st witness for the defendants before him. We would have thought that it was not open to him, in the circumstances of the conflicting evidence, to accept either the evidence he gave in a previous case or his contradiction of such evidence in the case before him.
With regards to the admission by the 1st witness for the defendants that all the oral evidence he gave were more or less his version of what was contained in the cases Exhibits A, B, C and D as well as the affidavit Exhibit ‘P’, the learned Judge should have considered these exhibits in the light of the provisions of Section 131 of the Evidence Law.
Learned counsel for the respondents had drawn our attention to Section 4 of the English Criminal Procedure Act 1865, Evidence by Cross, 2nd edition page 216, Australian Territory v. Goldsborough Mort & Company (1893) 2 Ch 381 at page 386, Section 1(1) of the English Evidence Act 1938 and the English decisions made on the interpretation of that section. We wish, however, to draw attention to the fact that the English Evidence Act 1938 had since been repealed by the English Evidence Act of 1968 and also that the 4th edition of Cross on Evidence was published in 1974 and pages 226 et. seq, deals with cross examinations orally and documentary.
We are of the view that our Evidence Law Cap 39 of the Laws of Lagos State covers all the points raised by learned counsel for the respondents, and we are in no doubt that a proper study of this law will show that the arguments canvassed by learned counsel for the appellants are valid. We are therefore of opinion that learned counsel for the appellants had sustained the complaint on the 1st ground of appeal and we hold that the plaintiffs have established that they are members of the Kuje family and that they were neither consulted nor did they give consent to the sale of the family property to the 6th defendant nor did they participate in the execution of Exhibit A by the 1st to 5th defendants.
We therefore hold that the following facts were established:
(1) that the property purported to be conveyed by Exhibit A belongs to the Kuje family comprising of seven branches as claimed by the plaintiffs.
(2) that only the Imore branch as represented by the 1st to 5th defendants sold the Kuje family property to the 6th defendant.
(3) that the 1st to 5th defendants knew at the time of the sale that the property did not belong to them as a distinct branch or solely to their branch of the Kuje Family.
(4) that it was false for the 1st to 5th defendants to describe themselves that they were the accredited representatives of the Kuje family as in Exhibit A.
(5) that the 6th defendant did not purchase the property from the Kuje family as averred by him in his Statement of Defence.
On these facts the plaintiffs have established that Exhibit A is void and could not convey the property of the Kuje family to the 6th defendant. It is therefore in fraud of the plaintiffs for the 1st to 5th defendants to purport to sell the family property of the whole Kuje family to the 6th defendant in this case.
Other grounds of appeal were argued by learned counsel for the appellants but in view of our decision on the first ground of appeal, we do not think any useful purpose would be served by dealing with those grounds.
The appeal succeeds and it is allowed. The judgment of the learned trial Judge in Suit NO. IK/97/66 delivered on the 4th of May 1973, including the award of costs is hereby set aside. We substitute therefore the following:
(a) the Deed of Conveyance dated 27th October 1965 registered as No. 32 page 32 in Volume 896 of the Register of Deeds, formerly kept at the Ibadan Lands Registry, and now in the Lagos Lands Registry, executed by the 1st to 5th defendants in favour of the 6th defendant is hereby set aside.
(b) the appellants, who are plaintiffs in the lower court are awarded costs of N500 against the 1st to 5th defendants/respondents and N250 against the 6th defendant/respondent as cost in the court below, and N900 costs against all the respondents who are represents before us by E. A. Molajo, Esq., of counsel as costs in this court.
SC.314/1975
