Alhaji A.w. Elias V. Olayemi Disu & Ors (1962)
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The appellant was the third of three defendants in an action brought by four members of the Disu Family of Lagos to set aside the sale and conveyance of a piece of family land by the first two defendants to the appellant. It is well settled that such a transaction requires the consent of all the members of the family, or of a substantial majority of them, and that it is voidable at the instance of those who did not consent, provided they act timeously: Mogaji v. Nuga (1960) 5 F.S.C. 107.
The appeal involves two questions as to the evidence on whether the respondents consented to the sale or not. Two of the plaintiffs, and the next friend of a third, who is a minor, gave evidence denying consent as part of the case for the plaintiffs, but the fourth gave no evidence, and when the first defendant came to make his defence his counsel wished to call the plaintiff who had not given evidence. No objection was taken by counsel for the plaintiffs, but the learned Judge, after asking ff there was any precedent for this course, said that no subpoena had been issued and that he knew of no case in which a plaintiff had been called as a witness for the defendant, and ruled that the plaintiff was not a competent witness for the defence. The first ground of appeal argued is that this ruling was wrong.
Section 157 of the Evidence Ordinance provides that:
Subject to the proviso contained in Section 147, (which deals with evidence bastarding issue) in all civil proceedings the parties to the suit, and the husband and wife of any party to the suit, shall be competent witnesses.
There is nothing in this to indicate that a party In a civil suit is only competent to give evidence upon his own application, as is the case under Section 159, proviso (a) of the Evidence Ordinance, with a person charged with an offence, and although it is rare for counsel to take the risk of calling an opposing party, I have no doubt that the Judge was wrong in ruling that the plaintiff was not a competent witness for the defence. The fact that no subpoena had been issued was immaterial on the question of competence.
It has been submitted on behalf of the respondents that even if the Judge’s ruling was wrong the point is academic as regards the appellant, since it was not he but his codefendant who applied to call the plaintiff. There may be cases where this would be so, but in the present case I am satisfied that the appellant is entitled to raise the point. It is not a case In which this Court can apply Section 226(2) of the Evidence Ordinance and say that had the evidence wrongfully excluded been admitted it may reasonably be held that the decision would have been the same, and the exclusion of the evidence is in itself sufficient ground for setting aside the judgment of the Court below.
If this were the only ground of objection the proper course would be to order a retrial, but if the second ground of appeal argued is well-founded the appellant is entitled to judgment. This ground complains of misdirection as to the burden of proof on the issue of consent, and the material passages of the judgment are-
The first and only question in this case, as it seems to me is ‘Did all the plaintiffs who were of full age consent to the conveyance of the land to the third defendant?
On this issue there is a direct and irreconcilable conflict of evidence between the plaintiffs and the defendants.
As 1 said earlier, there is a sharp conflict between the parties on the all-important question of consent, and I consider that the defendants have failed to prove that the plaintiffs gave consent. I am of the opinion that the onus is on them to prove that the plaintiffs gave consent to the sale or conveyance.
I am unable to resolve the conflict of evidence on this issue in terms of credibility of parties and witnesses, although I was not well impressed by the third defendant.
In my view, in the absence of proof that the plaintiffs consented to the sale, the sale is voidable at their instance.
I am unable to agree that the burden of proving consent was on the defendants. The plaintiffs had come to Court seeking to have a transaction set aside on the ground that they had not consented to it, and once the question of consent was put in issue it was for them to prove their case. Various decisions were cited to us on behalf of the appellant: Toleman v. Portbury (1870) L. R. 5 O.B. 288; Wakelin v. L.S.W Ry Co. (1886) 12 App. Cas. 41; Abrath v. N.E. Fly Co. 49 L.T. Reo. 618; but they merely exemplify the application of the rule contained in Section 135 of the Evidence Ordinance, that
“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
It is submitted on behalf of the respondents that the passage from the judgment cited above does not mean that the burden of proof was initially on the defendants, but that the burden had shifted to them in accordance with Section 136 of the Evidence Ordinance, which reads:
“(1)In civil cases the burden of first proving the existence or nonexistence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues on the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.”
This submission is incompatible with the Judge’s statement that he is unable to resolve the conflict of evidence in terms of credibility of parties and witnesses, which means that after hearing all the evidence he was not satisfied either that the plaintiffs did give their consent to the transaction or that they did not. In these circumstances the plaintiffs have failed to establish that they are entitled to the relief they ask for.
We were invited to consider ordering a new trial or a judgment of non-suit, but I see no reason why the respondents should be given another opportunity of proving what they have failed to prove in this suit. I would set aside the judgment of the Court below with the order for costs and enter judgment dismissing the suit. The appellant should have costs of 40 guineas in the Court below and costs of this appeal assessed at 50 guineas.
Other Citation: (1962) LCN/0965(SC)