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

LawGlobal-Hub Lead Judgment Report

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.