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ENITAN EDUN
V.
SALAMI KOLEDOYE AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
22ND DAY OF NOVEMBER, 1954
2PLR/1954/40 (WACA)
OTHER CITATION(S)
2PLR/1954/40 (WACA)
(1954) XIV WACA PP. 642-644
LEX (1954) – XIV WACA 642 – 644
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DE COMARMOND, Ag. C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN
ENITAN EDUN – Appellant
AND
1. SALAMIKOLEDOYE
2. IYA SHEGUN
3. SALAMI AKANWO
4. ELIJAH
5. SHOTAYO OJO
6. SAMUEL AKIREMI – Respondents
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ORIGINATING COURT(S)
Appeal by plaintiff: No. 104/1954
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REPRESENTATION
J. I. C. Taylor for Appellant
R. A. Fani-Kayode for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Claim for declaration of title in accordance with native law and custom – Claim – Evidence that claimant was an illiterate but had a title based on Deed – Whether that any question designed to bring in the deed of conveyance would be inconsistent with the claim in the writ
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PRACTICE AND PROCEDURE ISSUE(S)
JUDGMENT AND ORDER:- Justice to be aimed at in preference to technicalities – Variance between writ and pleading – Indulgence to illiterate person giving evidence.
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CASE SUMMARY
The plaintiff by her writ claimed a declaration of title in accordance with native law and custom; by her statement of claim she pleaded as her title a conveyance from a person who had purchased at an execution sale the right title and interest of the Oloto family. Giving evidence the plaintiff, an illiterate person, said she had bought the land by native law and custom, a statement she afterwards explained to mean that she had bought the title of the Oloto family (which was a title by native law and custom). The Court ruled that any question designed to bring in the deed of conveyance would be inconsistent with the claim in the writ, and would not admit the deed unless first satisfied that it effected a transfer by native law and custom; the Judge’s manner to counsel for the plaintiff discouraged him from pursuing the case, and he called no further evidence; the action was dismissed; and the plaintiff appealed.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal and remitting the case for trial) that:
1. The attitude of the Court in looking for technicalities, instead of endeavouring to do substantial justice, had affected the merits of the case;
2. some indulgence was due to an illiterate witness;
3. the plaintiff was relying on a purchase of the Oloto interest, and the Court erred in rejecting her deed of conveyance;
4. there should be a new trial with liberty to the plaintiff to amend her writ of summons.
Case cited:-
(1) Johnstone v. Todd (1843), 5 Beau. 601.
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MAIN JUDGMENT
The following judgment was delivered:
COUSSEY, J. A.
In this appeal, in six consolidated actions from the Supreme Court in the Lagos Judicial Division, the plaintiff-appellant, who appears to be an illiterate woman, claimed a declaration of title to land at Denton Street, Ebute Metta. By her statement of claim she averred that her immediate vendor purchased at auction the right, title and interest of the Oloto Chieftaincy family (a land-owning family) in the property in question at an execution sale. She pleaded as her title, her vendor’s registered certificate of purchase and her own deed of conveyance from the vendor. By their defences the defendants each denied the plaintiff’s title. They did not set up any title in themselves but they, in effect, set up a jus tertii, averring that the Oloto Chieftaincy family had not been divested of its title by the events and the documents upon which the plaintiff relied.
At the outset of the hearing the Court suggested an issue for trial which, it thought, might settle the case without the necessity of calling any witnesses, namely that raised by paragraph 5 of the defences which reads:-
“The defendant avers that none of the documents referred to in the statement of claim can properly divest the Oloto Chieftaincy family of their right, title and interest in the property in dispute.”
Shortly stated, this was a defence that the interest of the Oloto family had not, in fact, been sold because that interest was not in the judgment-debtors for whose debt the property was sold in execution.
Counsel for the plaintiff did not agree with this suggestion.
When he intimated that he would lead evidence, the Court warned him of the adverse view of the plaintiff’s case it would take if leading evidence resulted in a waste of time.
In my opinion counsel for the plaintiff was perfectly entitled to conduct his case by calling evidence. The defendants had not moved the Court by way of demurrer under Order 28 of the Rules of Court for the suits to be dismissed. He was entitled to decline to embark upon an issue the burden of which may have been on the defendants, if called on.
But when the plaintiff, in the course of her evidence, testified that she had bought the land by native law and custom, a statement which she shortly afterwards explained to mean that she had bought the title of the Oloto Chieftaincy (which is a title by native tenure), the Court ruled that any question directed to lay a foundation for the deed of conveyance from her vendor (which had been pleaded) would be inconsistent with her evidence and the claim on her writ to have purchased according to native law and custom. At this stage the Court expressed itself that, in view of her evidence above referred to, counsel for the plaintiff was cross-examining his own witness in inviting her to establish the deed upon which by her statement of claim she in fact relied as the foundation of her title. On this it is unnecessary to comment.
Although the certificate of purchase was, shortly after, admitted in evidence without objection, when the deed of conveyance was tendered the Court refused to admit it unless it were satisfied that it effected a transfer by native law and custom.
Situated as he was, counsel for the plaintiff submitted that he could not prove his case if the deed was not admitted in evidence. He would not call further evidence and, at his request, the deed was marked as tendered and rejected. Thereupon, on the defendants’ submission, the plaintiff’s actions were dismissed with costs, which the Court ordered counsel to pay personally on the ground that he had been negligent in the conduct of the action.
In this case there has been an unfortunate error in procedure on the part of the Court affecting the merits of the case and it is due to the Court looking for technicalities instead of endeavouring to do substantial justice.
The plaintiff, it is true, claimed by her writ a declaration of title in accordance with native law and custom and so stated in her evidence but, as the plaintiff explained in evidence, it was clear that by this assertion she meant that she relied on a purchase of the Oloto interest. The defendants obviously were not embarrassed. Some indulgence is due to an illiterate party. As Lord Langdale, M.R., said in Johnstone v. Todd (1),
“Witnesses, and particularly illiterate witnesses, must always be liable to give imperfect or erroneous evidence, even when orally examined in open Court. The novelty of the situation, the agitation and hurry which accompanies it, the cajolery or intimidation to which the witness may be subjected, the want of questions calculated to excite those recollections which might clear up every difficulty, and the confusion occasioned by cross-examination, as it is too often conducted, may give rise to important errors and omissions.”
In these circumstances the Court erred in rejecting the plaintiff’s deed, in indicating the manner in which her case should be conducted, and in dismissing her claim.
It is regrettable that the Court adopted an attitude of reproach, almost of asperity to the plaintiff’s counsel. In that atmosphere, he could not be expected to represent his client’s interests satisfactorily.
I would therefore allow the appeal, set aside the judgment dismissing the plaintiff’s claim and order a new trial before another Judge, with liberty to the plaintiff to amend her writ of summons if so advised.
It is clear, of course, that this Court is not concerned with any question at all as to the merits of the case or the probability of success or otherwise of the plaintiff or the defendants.
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FOSTER-SUTTON, P.
I concur.
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DE COMARMOND, AG. C. J.
I concur.
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Appeal allowed; case remitted for trial.
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