JELR 86965 (WACA) 1

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ABOWABA V ADESHINA
(1946) JELR 86965 (WACA)

WEST AFRICA COURT OF APPEAL · MAY 4, 1946 · WEST AFRICA [FOR WACA CASES]
·
OTHER CITATIONS

(1946)12 W.A.C.A. 18

CORAM

BAKER, AG. C.J. (NIGERIA), SMITH AND AMES, J.J.

The following joint judgment was delivered:

Sometime prior to 1936 Chief Oloto allotted a piece of land in EBute Metta, of which the land the
subject matter of this appeal forms a part, to the late Dr. Sapara in tenure by native custom.

In 1936, Dr. Sapara’s administrator sold the land, by leave of the Court, to the respondent’s
predecessor in title, who then sold to the respondent, who obtained a deed which purported to
convey the land to him in fee simple.

As this sales was made without Chief Oloto’s consent, the land became liable to forfeiture to him
under native custom, but the then Chief took no steps to enforce his right.

The learned trial Judge found it proved by the evidence that in September, 1944. the present Chief
Oloto waived the forfeiture in consideration of the sum of £10 paid to him by respondent for which
he later gave him the receipt which was put in evidence in the case.

On 6th December, 1944, the right title and interest of Chief Oloto in the land was purported to have
been sold to the appellant at a public auction on behalf of the Sheriff under a writ of execution,
whereupon the appellant brought this action claiming possession and a declaration of title.

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Pleading were ordered and in answer to the appellant’s claim, respondent pleaded that the land
was a portion of Dr. Sapara’s allotment sold him by the purchaser from the late Dr. Sapara’s
personal representatives and that he was in possession, subsequently resisted an application by
appellant to interrogate as to this allotment.

The appellant, however, obtained leave to reply, and in it he pleaded that Dr. Sapara’s allotment
had become forfeited as the result of the unauthorised sale by his administrator.

The respondent made no further plea to this.

The respondent nevertheless led evidence of the waiver of this forfeiture, with the trial Judge
accepted and, upon it, gave judgment dismissing the appellant’s claim.

The appellant now appeals to this Court on three grounds, vic:-

(1) The learned trial Judge misdirected himself by basing his judgment on as issue which was not
pleaded by the defendant on the defence filed by him, to wit: Payment of money by the defendant
to the Oloto and family for confirmation of the sale of the property to the defendant and the waiver
by the Oloto and family of the right to claim forfeiture.

(2) The learned trial Judge misdirected himself by holding that the alleged sale of the land in
dispute to the defendant by the Chief Oloto on an unknown date was effective in vesting the
property in the defendant.

(3) The judgment is erroneous in law and is against the weight of evidence.

In regard to grounds 2 and 3, appellant’s Counsel argued that the learned trial Judge, on the
evidence before him, ought not to have found that Chief Oloto waived the forfeiture to which he
was entitled before the Sheriff’s sale on the 6th December, but while we consider that on the
evidence as it appears in the record a finding to the contrary could have been supported, yet there
was evidence before the learned trial judge upon which he could make the finding which he did,
and as the eventual answer was largely dependent upon the assessment of the credibility of the
witnesses we are unable to say that the learned Judge was wrong in making the ground of appeal.

It now remains to consider the first ground of appeal.

The record makes it clear that the waiver of forfeiture by Chief Oloto was not pleaded by
respondent, nevertheless he led evidence to prove it.

This waiver was a very material fact to the respondent’s evidence, indeed it is the basis of the
decision in his favour at the trial.

From the record it would appear that no objection was taken to the admission of this evidence at
the time it was tendered, counsel for appellant confining himself to submitting in his final address
that the receipt for the money paid as consideration for waiver of the forfeiture was inadmissible on
the ground that it did not comply with the Land Registration Ordinance, section 15, a submission
which the learned trial Judge, what he now submits to us, that evidence of waiver of forfeiture was
not admissible as it was a material fact of the evidence which the respondent failed to plead.

Under the English Rules of Court, Order XXI, rule 21, a defendant in a suit for possession of land,

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unless he witness to raise certain upon to plead any other facts as to his title.

The rules of the Supreme Court of Nigeria, however, though broadly following the English Practice
Rules as to pleadings contain no rule similar to Order XXI, rule 21, therefore in this country it is
necessary for the defendant to plead all material facts upon which he relies to answer the plaintiff’s
claim, and we are in no doubt but that the respondent ought to have pleaded the waiver of
forfeiture, and that if the appellant had objected at the trial to the admission of evidence as to such
waiver such an objection should have been upheld and the evidence excluded.

The question is, can we now eliminate it?

The object of pleadings is to compel the parties to define the issues upon which the case is to be
contested and to prevent one party taking the other by surprise, by leading evidence on material
facts of which the other has no due warning.

The penalty for failing to plead a material fact is the exclusion, upon objection being taken, of
evidence to establish it.

There are certain type of evidence, such as hearsay, and unstamped or unregistered documents
which are inadmissible per se, they cannot form the basis for a decision, and objection to them
may be taken at any stage of a trial or on appeal, but in our opinion the case is different where
evidence, which could have been ruled out as inadmissible because it is adduced to prove a
material fact which was not pleaded, has nevertheless been adduced without objection and is
before the Judge.

In our opinion the evidence as to waiver of forfeiture in this case falls within the latter class, and the
trial Judge was bound to take it into consideration, and the appellant not having raised his objection
at the trial is precluded from doing so on appeal. We therefore dismiss this appeal. Costs assessed
at twenty guineas.

Appeal dismissed.

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APPEARANCES

AGUSTO AND AKERELE FOR APPELLANT (PLAINTIFF BELOW). SOETAN FOR

RESPONDENT (DEFENDANT BELOW).

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