Appeal Court, 18th May, 1938.
Appeal from judgment of Supreme
Court.
Claim for Order to set aside
sale of Realty-Plea of
Acquiescence peT1nitted but
admissible documentary evidence
rejected owing to
misunderstanding by Trial Judge
of Appeal Court's direction in
prior appeal.
Held: Appeal allowed and case
remitted to trial Court to hear
evidence.
There is no need to set out the
facts.
Eric O. Moore (Stella Thomas
with
him) for Appellant.
J.
C. Zizer
for Respondent.
The following joint judgment was
delivered:-
KINGDON, C.J., NIGERIA, PETRIDES,
C.J., GOLD COAST
AND CAREY, J.
This Court has remitted this
case once to the lower Court to
hear the third defendant's
defence. At that time the third
defendant's defence consisted of
two contentions, viz. :-
"1. The defendant says she is a
purchaser for valup " without
any notice of any defect in the
title.
"2. The defendant further says
she bought the said " property
under an order of this
Honourable Court."
At the rehearing these two
contentions were abandoned as a
defence and the Court allowed
the third defendant to add the
additional plea of acquiescence.
The Court allowed this
deliberately so that if the
third defendant wished to test
the plea by taking the case to
the Privy Council she could do
so. The Court also envisaged the
possibility that third defendant
might be able to bring the case
within the Court called the
lower standard of acquiescence
envisaged by this Court. At the
hearing of the defence of
acquiescence the only evidence
sought to be led by the third
defendant was that of a number
of documents tendered or to be
tendered with a view to showing
acquiescence on the part of the
plaintiff family in sales by
their Arotas to strangers of
properties other than the one
now in dispute.
12
J
Disu Akiyemi Oshodi v. Kaliatu [moru
<S-
o'rs.
75
|
Disu Akinyemi Oshodi
tI.
Kaliatu Imom & ors.
|
The Court below refused to admit
this evidence, the Judge g-i ving
as his reason:-
"
In my opinion it would be a waste
of time for me to " allow evidence
of this nature to be given here
since " I am bound by the decision
of the Court of Appeal " that
there has been no acquiescence."
In giving that decision the
learned trial Judge has
misunderstood and misquoted the
decision of this Court. This Court
did not decide that there had been
no acquiescence but merely that
the first defendant had failed to
prove acquiescence, a very
different thing. Having allowed
the third defendant to amend his
Kingdon, defence by pleading
acquiescence it became incumbent
upon the Petrides, Court below to
allow the third defendant to lead
all the admissible C.JJ. evidence
shE wished in order that she might
get before the Court
&
Carey, .T. and, if she wished to
take the case further, before
Higher Courts,
every atom of evidence that could
in any way assist her in .asking
for a decision that there had
been' acquiescence. The only
justifi-
cation for excluding any evidence
tendered would be its
inadmissibility. Objection was
taken at the time to this evidence
on the ground that it was
irrelevant and therefore
inadmissible.
But it was not on this ground that
it was rejected. If however
this Court considered the evidence
inadmissible for irrelevancy, this
appeal would fail, the decision of
the Court below being qpheld
for a reason different from that
given by the trial Judge.
Was, then, this evidence
irrelevant
i'
This question is answered by a
reference to the judgment of the.
Privy Council in the case of
Oshodi v. Balo.qunand others
(~r~vy Cou~cil Appeal No.
46 of 1934)- in which Lord
Maugham. gIVIng the Judgment of
the Board, said-
"
The second is that evidence of an
acquiescence in an " alienation of
lands in the other compounds must
"be regarded as evidence of very
slight if any "weight, since the
circumstances as re~ards th~
"respective families entitled to
occupy the other " premises might
be very different. Nor is it easy
to " see why the family as a whole
was not at full liberty " to
acquiesce in some cases and to
abstain from an " acquiescence in
others."
It is clear that the evidence is
regarded as admissible even though
of slight (if any) weight. That
being so the third defendant was
entitled to put before the Court
this additional evidence in the
hope that it might help to turn
the scale in her favour. The
appeal is therefore allowed and
the case remitted to the lo:ver
Court to hear all relevant
evidence tendered on behalf of the
third defendant. :rhe judlfment of
the lower Court, including the ?rder.
as to costs, IS set aSIde, and the
appellant is awarded costs In thIS
Court assessed at thirty guineas;
the costs in the Court below are
to abide the ultimate issue.
•
Reported at p. 1
ante. |
