FULL FACT OF ABOWABA V ADESHINA (1946) LAW-MADE-SIMPLE REPORT (L.M.S.R.)
This case arose from a dispute over a piece of land in Ebute Metta, originally allotted by the late Chief Oloto to Dr. Sapara under native custom. Upon Dr. Sapara’s death, his administrator sold the land with court approval to the respondent’s predecessor.
The respondent subsequently acquired the land through a deed purporting to convey fee simple ownership.
However, the sale was conducted without Chief Oloto’s consent, making the land liable to forfeiture under native custom. Despite this, the Chief did not enforce his right until the respondent paid him a sum of money in 1944, which the Chief accepted and provided a receipt for.
This was later interpreted as a waiver of forfeiture by Chief Oloto.
In December 1944, the land’s rights were sold at a public auction under a writ of execution, and the appellant claimed possession and title. The respondent defended the claim, admitting the land’s purchase from Dr. Sapara’s estate but did not plead the waiver of forfeiture. Nevertheless, the respondent introduced evidence of the waiver at trial, which was accepted without objection by the appellant.
Legal Issues in Abowaba v Adeshina (1946)
The appeal raised three primary grounds:
Non-pleading of waiver: Whether the trial judge erred by relying on evidence of a waiver of forfeiture, which the respondent did not plead.
Validity of Chief Oloto’s sale: Whether the alleged sale to the respondent by Chief Oloto was legally effective in vesting title.
Weight of evidence: Whether the trial judgment was against the evidence presented.
The Court delivered a joint judgment dismissing the appeal, with the following key points:
1.Requirement to plead material facts:
In Nigeria, unlike English rules (Order XXI, Rule 21), a defendant must plead all material facts upon which they rely to answer a claim for possession of land. The waiver of forfeiture was a material fact and should have been pleaded by the respondent.
Dicta: “The defendant in a suit for possession of land must, in Nigeria, plead all material facts upon which he relies to answer the plaintiff’s claim.”
2. Admissibility of evidence when no objection is taken:
Although the waiver was not pleaded, the plaintiff did not object at trial, so the evidence was admissible.The penalty for failing to plead is exclusion of evidence if objection is raised, but failure to object at trial precludes raising it on appeal.
DICTA: “The penalty for failing to plead a material fact is the exclusion, upon objection being taken, of evidence to establish it… [but] where evidence has been adduced without objection, it falls within the latter class and must be considered.”
3.Assessment of evidence:
The Court recognized that the trial judge’s decision relied heavily on witness credibility regarding the payment and waiver by Chief Oloto.There was sufficient evidence for the trial judge to conclude that the waiver occurred before the Sheriff’s sale, supporting dismissal of the appellant’s claim.
The Appeal dismissed. Costs assessed at twenty guineas.
Key Takeaways from this case
Disputes over native land title often depend on credible evidence and timing of acts like waivers.
Appellate courts generally defer to trial courts on factual matters, especially where witness credibility is central.
The formal date of the sale is less critical than evidence showing acknowledgment and acceptance by the native authority.
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