AJIDE V. KELANI

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1298

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NIGERIAN SUPREME COURT CASES [1985] 2 N.S.C.C.

"2. A reference in an enactment to a period of days shall be construed -

(a) where the period is reckoned from a particular event, as excluding the

day on which the event occurs".

Mr. Ajayi's argument that the date of the delivery of the judgment is to be in-

cluded in the computation of the 3 months period appears to be ill-founded.

In the final result, the preliminary objection fails and it is hereby dismissed.

Appeal dismissed.

AJIDE V. KELANI

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SALAWU AJIDE

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APPELLANT

V

KADIRI KELANI

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RESPONDENT

SUIT NO. SC 76/1984

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SUPREME COURT OF NIGERIA

BELLO,

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J.S.C.

OBASEKI,

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J.S.C.

ANIAGOLU,

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J.S.C.

UWAIS,

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J.S.C.

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OPUTA,

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J.S.C.

29th November, 1985

Practice and Procedure - Action for accounts of partnership - Pleadings - Claim

for declaration that parties remain co-owners in equity of building in dispute

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and for account of rents - Onus on defendant on pleadings to prove case

of partnership ownership - Defendant departing from pleadings - Onus not

discharged on admissible evidence - Plaintiff's claim wrongly dismissed on

question not arising on pleadings.

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Evidence - Admissions - If admissible in absence of pleadings - Requirement

that only facts and not evidence be pleaded - Evidence of witness in previous

proceedings - Admissibility in subsequent proceedings to discredit witness -

Requirement that witness attention first be drawn to parts intended to be

used to contradict him - Admission of plaintiff in previous proceedings relied

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on by defendant - Failure of defendant to plead previous pleadings -

Insufficient foundation laid for admission of previous pleadings.

Appeals - To Supreme Court - Preliminary objection to hearing of appeal -

Promotion of legislative object - Requirement under Supreme Court Rules 1985

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for 3-day-notice - Applicability to hearing of appeal in its entirety as well

as in part only - Validity of notice set out in respondent's brief

ISSUES:

a. Whether the provisions of Order 2 Rule 9 of the Supreme Court Rules 1985

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apply to any preliminary objection to the hearing of an appeal whether in whole

or in part.

1 b.Whether the fact that the preliminary objection is raised in a respondent's brief

rather than by a separate form of notice will render the objection defective.

AJIDE V. KELANI

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2.

Whether evidence given by a party in a previous suit could be admitted in a

subsequent judicial proceeding to discredit that witness without satisfying the

conditions set out in section 198 of the Evidence Act.

3.

Whether

it

is essential to plead the facts upon which a plea of estoppel is

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founded.

4.

Whether the court should allow a party to depart from the case set out in its

pleadings.

5.

Whether the onus of proof shifts in civil cases.

FACTS:

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The respondent (as plaintiff) in the High Court sued the appellant and one Ayuba

(who died during the trial) for a declaration that the plaintiff and the appellant are

and remain co-owners of the property in dispute and for and for accounts. It was

not in dispute that the appellant and the respondent and Ayuba (now dead) once

carried on business as partners under the business name and style of Four Bro-

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thers Stores. The property now in dispute was bought by the partnership and was,

while the partnership lasted, partnership property. The partnership was dissolved

from 3rd September, 1968 and the partnership properties were shared out among

the partners.

The appellant, though he admitted in his pleadings that the property in dispute

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was originally partnership property sought by his testimony to prove that the

property was never partnership property but his own personal property. He also,

in the course of his defence, sought to tender a copy of the dissolution agreement

of partnership signed by the respondent which showed how the partnership

property had been shared but the trial Judge rejected this on the grounds that it

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had not previously been put to the respondent as provided for under section 198

of the Evidence Act. He, the appellant also produced a certified record of pro-

ceedings in a previous suit between the same parties in which the respondent had

admitted signing a copy of the agreement terminating the agreement. The purpose

of tendering this record was to rebut the evidence of the respondent that he the re-

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spondent, was illiterate.

The trial Judge did not refer to the evidence given by the respondent in the pre-

vious suit nor to the copy of the agreement contained therein, but although he found

the appellant most unreliable and unworthy of belief, he nevertheless dismissed

the plaintiff's claim.

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The respondent appealed to the Court of Appeal and counsel to the appellant

sought to rely on the record of the previous suit and the copy of the agreement to

show that the respondent admitted therein that the property in dispute had been

shared with the other assets under the dissolution agreement. The Court of Appeal

rejected the submission and held both the evidence of the evidence of the respond-

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ent in the previous suit and the copy of the agreement inadmissible. They were of

the view that the trial Judge was wrong to have dismissed the action on issues out-

side the pleadings and that having found the appellant unreliable he should have

found in favour of the plaintiff. They therefore set aside the decision of the trial

Judge and allowed the respondents' claim.

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The appellant filed five grounds of appeal against the decision of the Court of

Appeal. Ground 2 complained that the Court of Appeal erred in not holding that

the trial judge was wrong in refusing to admit in evidence the original of the agree-

ment on the ground that the document had not been put to the respondent in cross-

examination. Counsel to the respondent, in his brief, raised a preliminary objection

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to this ground contending that the appellant ought not to be allowed to raise on

appeal a point which, though pleaded, he did not canvass at the hearing. He sub-

mitted, also in his brief, that furthermore, the appellant did not appeal against the

ruling rejecting the document and when the case was on appeal in the Court of