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HIGH COURT (WEST)
4TH MARCH, 1969
SUIT NO. AK/10A/68
Adejuwon, – for the Plaintiff/Appellant
Alonge, – for the Defendant/Respondent
This is an appeal from the decision of Owo Divisional Grade ‘B’ Customary Court, given by its president, Chief Folarin Onasile on the 5th April, 1968.
Before that court, the claim was for £200 damages for trespass and an injunction. The appellant was the Plaintiff Parties having adduced evidence, the learned president dismissed the claim for damages for trespass but allowed, in part, the claim for injunction.
The Plaintiff appealed on 6 grounds:-
Grounds 1 and 2 which were argued together read:
“According to Yoruba custom which I take judicial notice of, no Yoruba person builds in area of vacant land, without a vacant land around the building and especially at the back before the surrounding wall” and thereby came to a wrong decision.
Mr. Falodun, learned counsel for the appellant submitted that the learned president was wrong in taking judicial notice of Native Law and Custom which is not notorious. He relied on the case: Liadi Giwa v. Erinmilokun (1961) 1 All N.L.R. 294. That the president was wrong in taking judicial notice of the custom without evidence on it. He relied on the case: Ekpenga v. Ozogula 11 (1962) 1 All N.L.R. 265.
Mr. Alonge, the learned counsel for the respondent relied on Section 73 (1)(i) Evidence Act to support the learned president’s action. He further submitted that the custom in question, being a general Yoruba custom, does not require any proof.
Section 73(1)(i) of the Evidence Ordinance reads:
“73(1) The court shall take judicial notice of the following facts-
(i) All general customs, rules and principles which have been held to have the force of law in or by any of the superior courts of law or equity in England or the Federal Supreme Court or former Supreme Court of Nigeria or by the High Court of the Region and all customs which have been duly certified and recorded in any such court.”
For a custom to be judicially noticed under this section, it must either have been held to have the force of law in or by any of the superior courts of law or equity in England, or by the Federal Supreme Court or the former Supreme Court, or the High Court of a Region; in this case of this State; or must be one of the customs which have been duly certified and recorded in any of these courts. Therefore, unless the customs judicially noticed by the learned president fall into any of these categories, he was in error.
This action does not say, as has been submitted by Mr. Alonge that a general custom needs no proof. It is only such of them as fall within the provision of Section 73(1)(i) of the Evidence Ordinance that are exempt from the necessity of proof.
In Liadi Giwa’s case, it was held that:-
“Native law and custom is a matter of evidence to be decided on the facts presented before the Court in each particular case, unless it is of such notoriety and has been so frequently followed by the Courts that judicial notice would be taken of it without evidence required in proof.”-(1961) I All N.L.R. at page 296.
The customs noticed are quoted on the grounds of appeal. There is no evidence whatsoever on them. There is also no evidence that they are notorious and/or have been followed by the Courts. It is my view that the conditions laid down in Liadi Giwa’s case satisfy the requirements of Section 73(l)(i) of the Evidence Ordinance. In effect, both of them are saying the same thing and of course are both contrary to the course followed by the learned president. In my judgment therefore, the learned president erred in noticing judicially these customs-if customs they are-and basing his judgment on them.
Grounds 3 and 4 which were also argued together read:-
“3. The learned president erred in law in holding that “the defendant is entitled to a portion of the vacant land behind the produce store, but not to the whole of it as shown on exhibit `A’ and thereby came to a wrong conclusion.
Arguing these grounds, Mr. Falodun submitted that the presence of coco-yams and pine-apples was not sufficient to warrant the decision. The lower court having acted under Order XI rule 1 Customary Courts Rules, Mr. Falodun submitted that rule refers to the exercise of discretion within the powers of the court and that the demarcation of the land as done by the learned president was not within his powers. That since the lower court found there was no definite boundary, the proper order should have been a non-suit. He cited the case of Ebenyam v. Ayigo, 16 N.L.R. 30.
Mr. Alonge the learned counsel for the respondent argued that the exercise of the discretion under Order XI rule 1 was to the advantage of the appellant.
“I. A court may in its discretion make any order within its powers and jurisdiction which it considers the justice of the case demands whether or not the order has been asked for by the party who is entitled to the benefit thereof: Provided that in a civil cause or matter “judgment shall not be given, except as to costs, for a greater sum of money than that claimed in the particulars of claim.”
The discretion given to the court here is rather wide. It appears to be limited only in terms of the proviso. But in exercising it, regard must be had to the case as a whole. Wide as it is it does not mean that a party who has failed to discharge the onus of proof which rests upon him should still have an order to his advantage as if he has discharged that onus. The word “order” itself is defined in Order 1 r. 2 of the Customary Courts Rules as: “A command or direction by a court in any proceedings before it.” This is distinct from a judgment which is defined under the same rule as including: “the dismissal of any cause or matter, as well as any other decision of a court.” When, therefore, the learned president held in his judgment:
“and further I exercise my inherent power under Order XI c 1 of the Customary Courts Rules, 1958. I, therefore, hold and order that both plaintiff and the defendant are equally entitled to the vacant land in equal share in this wise.”
he was clearly in error. Order XI r. 1 did not give him such powers.
It may be that the exercise of the discretion here resulted in the benefit of the appellant, but that is beside the point. Was the discretion properly exercised? If it was not, the judgment based on it cannot stand.
It appears that at the conclusion of the case before the learned president, the appellant did not satisfy him on his claim; neither was the defendant’s case better. In that event, the proper judgment should have been a non-suit.
Having carefully considered the evidence as it is on the record and the arguments of learned counsel with particular regard to the question of ordering a non-suit, I am satisfied, without considering the remaining two grounds of appeal, that the proper order in this case should have been a non-suit.
I, therefore, allow the appeal. The judgment of the lower court is hereby set aside. Instead, I substitute a judgment non-suiting the Plaintiff.
Mr. Adejuwon asks for 30 guineas costs.
Mr. Alonge says costs should not be awarded. It was an error committed by the learned president.
Court: I make no order as to costs.
Appeal allowed: Judgment of lower Court set aside: Judgment of non-suit substituted.