Claim for Order to set as1.de sale of Realty-Plea of Acquiescence permitted 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 bear 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 value “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 I 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.*Page 75The Court below refused to admit this evidence, the Judge giving 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 mis-understood 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 difterent thing. Having allowed the third defendant to amend his defence by pleading acquiescence it became incumbent upon the Court below to allow the third defendant to lead all the admissible evidence she wished in order that she might get before the Court 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 justification 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 upheld for a reason different from that given by the trial Judge.
Was, then, this evidence irrelevant? This question is answered by a reference to the judgment of the Privy Council in the case of Oshodi v. Balogun and others (Privy Council 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 regards the “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 lower Court to hear all relevant evidence tendered on behalf of the third defendant the judgment of the lower Court, including the order 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.