➥ CASE SUMMARY OF:
Salawu Ajide V. Kadiri Kelani (SC.76/1984, 29 Nov 1985)
by Branham Chima.
➥ SUBJECT MATTER
Defence of estoppel;
Contract witness via previous statement.
➥ CASE FACT/HISTORY
The present Respondent was the plaintiff in the High Court of Lagos State wherein he claimed jointly and severally against the present Appellant and one Karimu Ayinla as the 1st and 2nd defendants respectively for: “(i) a declaration that the Plaintiff and the Defendants are and remain the co-owners in equity of all that piece or parcel of land situate, lying and being at Awoyokun Street, Odi-Olowo, Mushin District which land is bounded by straight lines joining survey pillars marked DB7, Wk 1752 and Wc 5912: (ii) an account of all the rents and profits collected by or on the direction of the defendants in respect of the said property from February, 1967; (iii) an ORDER compelling the defendants to pay to the Plaintiff any money found to be due to the plaintiff after the rendering of such account.
During the trial of the case the 2nd defendant died and the trial proceeded against Appellant only. After having heard the evidence, the trial judge dismissed the claim.
The Respondent successfully appealed to the Court of Appeal which set aside the decision of Adebiyi J. dismissing the Respondent’s claim.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the documents were admissible without having been pleaded as contended by Mr. Ajayi or whether they were inadmissible under the circumstances of the case because they had not been pleaded?
RESOLUTION: IN RESPONDENT’S FAVOUR. (the documents were inadmissible).
[THE PREVIOUS STATEMENT WAS NOT SHOWN TO THE RESPONDENT DURING CROSS-EXAMINATION:
‘The deposition of the Respondent, Exhibit C, and the photo-copy of the dissolution agreement, Exhibit D, were not shown or read to the Respondent. Consequently, the provision of the section which was a condition precedent to the admissibility of the deposition including the photo-copy of the dissolution agreement had not been satisfied.’
THE DEFENDANT DID NOT PLEAD THE DEFENCE OF ESTOPPEL:
‘It may be observed that although rule II does not specifically mention a plea of estoppel in its specifications for pleadings, I think it is reasonable to infer, at least from the specifications I have italicised, that the rule requires facts giving rise to an estoppel to be pleaded. This is particularly so in the case on appeal because the facts relied on to support the estoppel, namely the previous suit, raised an issue of fact which did not arise from the Respondent’s Statement of Claim. By virtue of the provisions of the rule, I hold that it is essential to plead the facts upon which a plea of estoppel is to be supported. Since the Appellant did not plead the Respondent’s evidence in the previous suit, the Court of Appeal was right in disregarding the evidence: Ogboda v. Adulugha (Supra).’]
II. Whether the property had ceased to be partnership property and has since 1968 September 3rd devolved on the appellant after sharing?
RESOLUTION: IN RESPONDENT’S FAVOUR. (The Appellant/Defendant showed no evidence that the property has ceased to be partnership property.)
[THE BURDEN OF PROOF WAS ON THE APPELLANT/DEFENDANT:
‘Finally, this case is very simple on its pleadings and evidence. The Respondent claimed the building in dispute to be a partnership property. The Appellant admitted that it had been a partnership property but that it later became his personal property by virtue of a dissolution of the partnership agreement as from 3rd September, 1968. From the pleadings of the parties, the law relating to the burden of proof is straight forward. Having admitted the building to be a partnership property, the onus was on the Appellant to prove when it ceased to be a partnership property and became his own. The trial judge, quite rightly in my view, found the Appellant woefully failed to discharge the burden of proof. In the circumstances the trial judge was wrong in dismissing the Respondent’s claim and the Court of Appeal rightly set aside the decision of the trial judge and entered judgment for the Respondent.’]
‘Accordingly, the appeal is dismissed. The decision of the Court of Appeal is affirmed with N300 costs to the Respondent.’
➥ FURTHER DICTA:
⦿ CROSS-EXAMINATION OF WITNESS AS TO PREVIOUS STATEMENTS MADE BY HIM
It may be observed that the section gives an option to the cross examiner. He may cross-examine the witness on the writing and if he is satisfied with the answer given by the witness or if he does not intend to pursue the matter further, he is not required to show the writing to the witness or to prove the writing. But if the cross-examiner intends to contradict the witness by the writing, then he must show the writing to the witness and call his attention to those parts of the writing which are to be used for the purpose of contradicting the witness. It is only after this condition has been complied with that the writing can be admitted in evidence. The cross-examination of the Respondent which Mr. Ajayi relied on as having complied with the provisions of the section may now he examined. — M. Bello, JSC.
⦿ DEFENCE OF ESTOPPEL MUST BE PLEADED
It is trite law in Nigeria on the authorities I have earlier cited in this judgment that the defence of estoppel, whether founded on admissions or not, must be pleaded and, if it has not been pleaded, any evidence tending to establish it goes to no issue and the evidence ought to be rejected: Ogboda v. Adulugha (1971) 1 All N.L.R. 86. This is a general statement of the law. Let us see if the High Court of Lagos (Civil Procedure) Rules, 1972, which is the applicable law, make provision for an exception. — M. Bello, JSC.
⦿ COURTS ARE BOUND TO DECIDE CASES ON THE PLEADINGS
The foregoing is the gist of the simple case presented before the trial judge. But it was made very complicated by the introduction of legal technicalities at the hearing of the appeal in this Court. The matter was further compounded by the conduct of the parties in that neither, as was disclosed by the issues canvassed before us, had any respect for the truth. However, courts are bound to decide cases on the pleadings of the parties and admissible evidence. — M. Bello, JSC.
⦿ DEPARTING FROM PLEADINGS GOES TO NO ISSUE
This was raised by the appellant who claimed that it became his property on dissolution of the partnership and ceased to be partnership property. Having raised it, the onus of proof lay on him to establish by evidence that the property ceased to be partnership property. That is the law. However, he claimed in his testimony that the property was never partnership property but his own personal property. Since this was a departure from the pleadings, it went to no issue. Further, the Court will not allow a party to depart from the case set out in his pleadings. See Abimbola George v. Dominion Flour Mills (1963) All NLR. 71. — Obaseki, JSC.
⦿ PARTIES ARE BOUND BY THEIR PLEADINGS
As the parties are adversaries, each one is bound by his case as framed in his pleadings. That being so, the Defendant/Appellant will not be allowed to set up (at the hearing as he did) an entirely different case without any prior amendment to his pleadings: African Continental Seaways Ltd. v. Nigerian Dredging Roads General Works Ltd. (1977) 5 S.C. 235 at p.249. — Oputa, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
M. Bello, JSC
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)