Enitan Edun V. Salami KoledoyeEnitan Edun (1954)

LawGlobal Hub Judgment Report – West African Court of Appeal

Practice and Procedure—Justice to be aimed at in preference to technicalities—Variance between writ and pleading—Indulgence to illiterate person giving evidence.

Facts

The plaintiff by her writ claimed a declaration of title in accordance with native law and custom; by her statement of claim she pleaded as her title a conveyance from a person who had purchased at an execution sale the right title and interest of the Oloto family. Giving evidence the plaintiff, an illiterate person, said she had bought the land by native law and custom, a statement she afterwards explained to mean that she had bought the title of the Oloto family (which was a title by native law and custom).

The Court ruled that any question designed to bring in the deed of conveyance would be inconsistent with the claim in the writ, and would not admit the deed unless first satisfied that it effected a transfer by native law and custom; the Judge’s manner to counsel for the plaintiff discouraged him from pursuing the case, and he called no further evidence; the action was dismissed; and the plaintiff appealed.

Held

The attitude of the Court in looking for technicalities, instead of endeavouring to do substantial justice, had affected the merits of the case; some indulgence was due to an illiterate witness; the plaintiff was relying on a purchase of the Oloto interest, and the Court erred in rejecting her deed of conveyance; there should be a new trial with liberty to her to amend her writ of summons.

Appeal allowed; case remitted for trial.