Karimu Omisakin Apata Vs Yesufu Awoyemi (1960)

LawGlobal-Hub Lead Judgement Report

TAYLOR, F.J

The defendant/appellant has appealed to this Court against the judgment of Hedges, J., of the High Court of the Ibadan Judicial Division, which judgment granted a declaration of title to the plaintiff/respondent in respect of land situate at Mapa, lfe, and an injunction restraining the defendant/appellant and his servants from carrying on building operations thereon.

Three grounds of appeal were filed with the notice of appeal, and, on the 23rd November, 1960, Counsel for the appellant sought leave to file and argue four additional grounds of appeal. Leave was granted to file and argue the first three grounds and refused in respect of the fourth ground. These three additional grounds do not, however, differ, in substance from the original grounds filed, though in ground 2 of the additional grounds a subdivision has been made.
‘The issues are argued and defined. Both counsel agree that if the stream at the north of the plan submitted with the plaintiffs statement of claim is the Oroto stream, the plaintiff is entitled to a declaration of title. If, however, that stream is not the Oroto stream the plaintiff will fail.’

The parties then proceeded to the proof of their case, during which the only exhibit formally tendered and marked was a plan exhibit ‘A’ purporting to be an official plan from the Ife Native Authority. The judgment in the lower Court was, however, related not to this plan, but to the plan filed with the statement of claim. Learned Counsel for the appellant has attacked this portion of the judgment in ground 2 of his original grounds of appeal, which is identical with ground 2B of the additional grounds and reads as follows:-

“The Learned Trial Judge erred in that: – the based his judgment on a plan which was not tendered in evidence.’

Mr. Omisade for the appellant contended that in so far as the plan attached to the statement of claim was never formally tendered in evidence and marked as an exhibit, the Trial Judge erred in basing his judgment on it.

The relevant rules of Court in this respect at the material time were rules 10;11 and 12 of Order 41 of the Supreme Court Rules, which are identical word for word with Order 26 rules 19, 20 and 21 of tile Western Region High Court (Civil Procedure) Rules now in force in that region. The rules read as follows:-

Rule 10:-

“Documentary evidence must be put in and read or taken as read by consent.’

Rule 11:-

If either party intends to use documents in evidence he must lodge them with the registrar at or previously to opening his case, together with a signed list of such documents, and he shall not afterwards be at liberty to put in any documents or additional documents unless the Court shall otherwise order.’

Rule 12:-

‘Every document put in evidence shall be marked by the registrar of the Court at the time, and shall be retained by the Court during the hearing, and returned to the party who put it in, or from whose custody it carne, immediately alter the judgment, unless it is impounded by order of the Court.’

In the case of Watson v. Rodwell, 4B L.J Ch N.S., 209 James L.J. says very much the same thing of the practice prevailing in the United Kingdom in the following words:-