Karimu Omisakin Apata Vs Yesufu Awoyemi (1960) LLJR-SC

Karimu Omisakin Apata Vs Yesufu Awoyemi (1960)

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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:-

‘The mere fact that these letters are amongst the documents admitted as evidence on the action does not make them evidence unless they were read at the trial in the Court below or put in and marked by the Registrar. Every document which is intended to be used in evidence should be put in and marked by the Registrar.’

The report of the case continues as follows:-

‘It appearing that the letters in question had been read in the Court below, the objection was withdrawn.’

The learned author of Phipson on Evidence expresses views which would limit the application of Watson v. Rodwell to Chancery cases and then only to document produced to a witness or whose admissibility is in question. Reference is made by the author to the case of Atone v Delarmy, 1886-7 L.T.N.S., 217, where Blackburn J. refused to allow Counsel to address the Jury as to the contents of a letter, which, though admitted by opposing Counsel, yet had never been handed to the officer of the Court nor read by him.

From these two authorities the following point emerges:- the document should be marked by the registrar, but if the document is read at tile trial it is held to be equally in evidence. Finally, in the case of Mainwaring v, Lord Clarina, 1910 W.N.14, a motion was brought by the plaintiffs for directions that the whole of a bundle of correspondence admitted by the parties and laid before the judge at the trial be admitted as read in the order, though only some of them were actually referred to. Neville J. declined to follow Kekewich J. in Law v. Law,1904 W.N. 152, and stated that instructions had recently been given by the Court of Appeal that only documents which had been actually and specifically referred to at the trial should be entered as read in the judgment

In this appeal the document was a plan which by its nature could not be read by the officer of the Court; it had been filed in Court with the statement of claim to which reference was made in paragraph 3 of same and a copy had been served on the defendant; it had been used by the Court and Counsel at the beginning of the trial to settle issues and finally the plaintiffs first witness made reference to it both in examination-in-chief where he said:

‘I see the plaintiffs plan. The Oroto stream is the stream so marked.’

and under cross-examination where he said;-

‘It is not my work to know about drains, but I know the stream which is correctly marked on plaintiffs plan.’

There can be no doubt that the provisions of rules 10 and 11 of Order 41 are substantially complied with, and in view of the circumstances enumerated above, I am not prepared to hold that the failure of the Registrar to mark it is such as to disqualify it from being regarded as having been put in evidence, though it is always desirable that rule 12 should be complied with in all cases. I am of the view that the plan was in evidence, and this ground of appeal must therefore fail.

The only other ground of any substance argued at the hearing of the appeal urged that exhibit ‘A’ was wrongly admitted in evidence in that it was not produced by the maker, nor does it satisfy the provisions of s.23 of the Survey Ordinance N.29/1952.

There is, I feel, no need to go into the question of whether this Exhibit was rightly received in evidence or not, for, conceding that it was wrongly received, and excluding it and all reference to it from the record, there was still abundant evidence on which the Court could have come to the decision it did and I would here enumerate such evidence as follows:-

1. In the first place there is the plaintiffs plan and the evidence of the 1st prosecution witness in relation to it, and to which I have already made reference.

2.In the second place there is also the defendants plan, which was filed with the statement of defence and was on the same footing as that filed with the statement of claim in that it was put to the 1st prosecution witness in evidence, and referred to by the Learned Trial Judge in his judgment.

3.    Finally, a comparison of the two plans shows that they are identical in features, the only difference being in the name given to two features which appear in both plans, i.e., the Oroto Stream and the Earth Drain; for what the plaintiff calls the Oroto Stream ill his plan is called the Earth Drain in the defendants plan, and what is called the Earth Drain in the plaintiffs plan is called the Oroto Stream in the defendants plan.

The issue before the Learned Trial Judge was short and simple. He accepted the version of the 1st plaintiffs witness, which was supported by the evidence of the defendant himself in the passage which reads:-

‘The Oroto stream is my boundary. It crosses the Oranmiyan, Road.’

In the defendants plan the Oroto Stream stops in the middle of the land and does not cross Oranmiyan Road, only in the plaintiffs plan is it shown to do this.

This ground of appeal must also fail, and I would dismiss this appeal with costs which I assess at 19 guineas in favour of the respondent.

Other Citation: (1960) LCN/0839(SC)

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