G.B.A Akinyede And Others V Y.m. Opere And Others (1967)

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ADEMOLA, C.J.N.

This is a motion by the seven appellants who were defendants in this case in the court below, asking for leave of this court to lead additional evidence to correct the record made by the trial judge in respect of evidence given by a witness who was the third witness for the defendants.

The witness Chief Obanikoro is a prominent Lagos White Cap Chief; he was called to give evidence in the court below on a material point concerning the Yoruba law and custom of distribution of intestacy. The issue was which of the two systems, namely, distribution per stirpes (idi igi) or per capita (Ori ojori) must be adopted in distribution among the children of the deceased.

For the applicants, certain passages of the judge’s notes had been attacked as not having been correctly recorded. The two passages are as follows: – the first, under examination-in-chief reads:-

“If the family once consent to this they will be bound by it and cannot go back.”

and the second, under re-examination, are as follows:-

“ I still say that when all the members of the family agree to share their assets by one system such as ori ojori it is not open to them under the custom to go back. They will be bound by it.,,

According to Mr Akinyede, arguing the motion, the reply to the first question, If properly recorded, was-

“The family can change ff they so wish but not arbitrarily  meaning not change every time.” and that this answer was in response to a question put by the court and not in examination in chief as shown in the record.

In regard to the second passage complained of, Mr Akinyede stated that what should have been recorded as an answer in re- examination was to the following effect-

“If the family desire a change, they may make it but not chop and change as they like.”

Mr. Akinyede also complained that although the learned judge questioned the witness at length, there was nothing to show in the record that any question was put to the witness by the court.

Mr. Akingbade for the other applicants associated himself with all what Mr. Akinyede said. Both urged the Court that the justice of the case will be met by allowing additional evidence; in other words, that this court should hear for itself the evidence of Chief Obanikoro who, from the affidavit before us, was rather aggrieved at what he considerd the hostile attitude of the judge to him during his evidence; he was also concerned about the Yoruba native law and custom he was postulating and which according to his affidavit, although the record does not show it, the judge termed, at the time, as “Uncivilised and barbarous.”

For the respondents, Mr. Oseni submitted that the application appeared to go beyond calling additional evidence; in effect the court was being asked to amend the record before it. The court, he submitted should be wary to add anything to the judge’s notes except there is very strong evidence in favour of it.

It Is not in doubt that the court has an inherent power to order the record of appeal of the trial to be amended so as to comply with facts proved and the decision given – see Thynne v. Thynne [1955] 3 W.L.R. 466 referred to at p. 1675 of 1966 White Book. That however, is not the case here.

What weare called upon to do here is to reject the record made by the judge of the oral evidence of a witness on the ground that it does not represent what the witness said, and to take the evidence of the witness afresh.

As arguments between counsel developed it became evident to us that counsel on both sides either by themselves or by their juniors took notes during the proceedings in the court below. The first applicant did not, as he was entitled to do, refer to these notes in his affidavit nor did he state in his affidavit that he was relying on the notes. As the notes were in court, we examined them. We must make ft dear that the notes were not read by us for the substance they contained as the first applicant did not refer to them in his affidavit, but we were able to clear our minds on one point, namely, that the judge himself did put questions to Chief Obanikoro, as the notes on either side show.

The record is at most a summary in narrative form of what the judge understood the witness to say, and it may be to some extent inaccurate or incomplete, but we are unable to go as far as the applicants on the evidence before us, and accept it as proved that the evidence given by the witness was exactly what the applicants now stated before us. In one of the passages complained of, the first applicant himself was unable to tell us exactly what he alleged Chief Obanikoro said in the High Court. He was content to say that what the witness said was “to the following effect.” We feel it will be a very dangerous precedent for the court to accept these words as the evidence given by the witness.

We can understand the attitude of Chief Obanikoro in this matter. He is a man over 80 years of age, well educated and has given evidence on many occasions on the laws and customs of the Yoruba people. His anxiety that what he said about these laws and customs might not be misrepresented in any future proceedings in understandable.

In exceptional cases as for instance where both parties are agreed, or where there is conclusive evidence to show that what was recorded by the trial judge was not what the witness said, we shall be willing to consider exercising the inherent powers of the court to amend the record. In the present case however we are in an extremely difficult position as there is not enough evidence before us upon which we can justifiably act by expunging the evidence already taken by the judge and hearing the witness afresh.

We have no alternative but to dismiss this application.

Other Citation: (1967) LCN/1361(SC)