POPOOLA V. ADEYEMO

• Pages: 46-70

46

NIGERIAN SUPREME COURT CASES

[1992]

3 N.S.C.C.

2.

The fees payable to all professionals in respect of the said development

with copies of the contracts relevant thereto.

3.

The source of financing the said development, the amount of finance

procured and through whom it was procured.

4.

The space available for letting in the said development."

relate to the matter before the court which both lower courts clearly found

necessary either for disposing of fairly the course or matter or for saving costs in

the litigation between the parties. Paragraph 18 of the statement of claim avers that

the "estimated cost of the development on the said property is approximately

N3,000,000.00". Paragraph 20 of the statement of defence positively denies this

and in paragraph 24 the defendant goes on to aver that It "will at the trial rely on

all relevant building plans, letters, agreements, leases, receipts and other docu-

ment connected with the case."

To my mind the four interrogatories would adequately cover the averments in

ascertaining the real issues which the trial court is called upon to determine.

I agree that the Court of Appeal was right in affirming the decision of the learned

trial judge and for the fuller reasons in the judgment of my learned brother,

Karibi-Whyte, J.S.C.

I dismiss the appeal with NI,000.00 costs to the respondent.

Appeal dismissed.

POPOOLA V. ADEYEMO

1.

JACOB POPOOLA & ORS.

2.

THE GOVERNOR OF OYO STATE

APPELLANTS

30

V

JOSHUA OYEYEMI ADEYEMO & ANOR.

RESPONDENTS

APPEAL No. SC. 292/1989.

SUPREME COURT OF NIGERIA

KARIBI-WHYTE,

J.S.C.

KAWU,

J.S.C.

WALT,

J.S.C.

0 LATAWU RA ,

J.S.C.

MOHAMMED,

J.S.C.

25th September, 1992.

Estoppel - Laches - Registered declaration not published and made public - Whether

question of delay arises in such circumstances - Doctrine of lathes not arbitrary nor

technical.

5

10

15

20

25

35

40

45

Evidence - Proof of title - Conflict in traditional history - How it may be resolved - Court

not to rely on credibility of witnesses - Reference to be made to facts in recent years

established by evidence.

50

POPOOLA V. ADEYEMO

47

Legal Practice - Brief writing - Counsel to base argument in brief on grounds of appeal and

not on issues formulated - Reply brief - Effect of failure to file reply brief - Importance

of a reply.

5

Legislation - S.44 Evidence Act - Limit of applicability - What is - Whether extended to

traditional evidence establishing paternity - S.9 Chief Laws of Oyo State - Scope of.

Practice and Procedure - Discretion of court to raise new point on appeal - Whether to he

exercised where point not raised at trial - 5.213(3) Constitution 1979 - Mixed law and

fact - Whether party can argue such grounds without leave of court - Wrong appraisal

10

of evidence by trial court - Right of appellate court to interfere.

15

ISSUES:

1.

Whether S.44 Evidence Act is confined to admissibility of traditional evidence

relating to interest in communal land and could not be extended to chieftaincy

matters'.

2.

How may the courts resolve a conflict in two competing traditional histories

relating to paternity of a party?

FACTS:

20

•

The plaintiffs/respondents commenced proceedings against the defen-

dants/appellants in the Ogbomosho High Court of the former Oyo State and in

their amended writ of summons claimed two declarations and two orders against

the defendants.

At the trial court, there was no dispute on the facts that there was no chieftaincy

25





declaration for the Alajawa chieftaincy, that the Olajolu Ruling House petitioned to

be included in the proposed chieftaincy declaration, that a chieftaincy declaration

relating to the Alajawa of Ajawa Chieftaincy (Exhibit A) was approved on the 15th

day of September, 1958 and registered on the 16th day of September, 1958

providing for five Ruling Houses as Laomo, Olajolu, lbapala, Olumole and Olawusi.

30





The declaration was not published until 1976. It was also not in dispute that the

appellant/defendant is a direct descendant of Falana and that Oyewole, the mother

of Falana, was the wife of Olajolu, a prince and son of Winjobi, a previous Alajawa

of Ajawa. When Olajolu died, his wife, Oyewole, was inherited by his younger half

35





brother according to native law and custom. Neither Olajolu nor Falana nor any

descendant of Falana ever became an Alajawa of Ajawa.

The trial ended in all the claims of the plaintiffs being dismissed. Dissatisfied

with the decision of the trial High Court the plaintiffs appealed to the Court of

Appeal.

40





The Court of Appeal allowed the appeal, with

Ogundare, J.C.A.,

(as he then

was) dissenting. That court, among other reasons, held that the trial court did not

evaluate the evidence of traditional history properly and that the approach of the

trial judge in resolving the conflict of traditional history, by considering the credi-

bility of the witnesses was wrong. The court further held that the ground upon

45





which !aches was held by the trial court was not strong enough. The defendant

dissatisfied with the decision of the court appealed to the Supreme Court.

HELD:

1.

A strict interpretation of section 44 of Evidence Act has always been adhered

50





to, i.e., limiting its application to title or interest in communal land. It is not

applicable to a Chieftaincy dispute.

(see p.54, lines

3-5)

2.

Where the witnesses are not speaking from their own personal knowledge

whatever conflict may exist in the two competing histories cannot in the