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.